Constitutional Progress of Nations

Ideology and the Constitution: Essays on Constitutional Jurisprudence

by Radhika Coomaraswamy

International Centre for Ethnic Studies, Colombo, 1996

178 pages

In the traditional Western understanding of state formation a constitution is meant to be a stable and enduring document which with occasional tinkering, provides a framework that allows society to develop and function peacefully and efficiently. The American constitution is the model of this ideal as (regardless of whether one actually agrees with the specific way either government system works) their endurance and stability is undeniable. The endless attempts at reforming the Canadian constitution is based on the same premise, that if the constitution is perfected all the problems created by the plural nature of Canadian society will resolve themselves.

Judged from this perspective, Sri Lanka's constitutional history can hardly be qualified a success. With three constitutions since Independence and a new one presently under consideration as a response to the continued Sinhala-Tamil ethnic strife, Sri Lanka has clearly not yet created a stable constitutional framework that allows for the unhindered development of a civil society.

Radhika Coomaraswamy's new book of essays examines Sri Lanka's troubled constitutional evolution from a fresh perspective. The standard Western approach would follow a legalistic analysis of the strengths and weaknesses of specific articles or constitutional proposals in the belief that the solution to the country's problems lay in drafting a perfect constitution. However, Ms Coomaraswamy does not become bogged down in arcane, and often tedious, arguments for and against specific constitutional articles. Indeed, as the essays were written between 1987 and 1993, the book does not even concern itself with any specific of the constitutional proposals now under consideration. Rather, the author takes a step back, and examines how competing ideological bases, namely ethnic nationalism and political opportunism, have undermined the Anglo-American ideal of constitutional development, as far as Sri Lanka is concerned.

Non-Violent Decision-Making

Ms Coomaraswamy says unequivocally that she is a constitutionalist, because "none of the other ideologies prevalent in South Asia today are as committed to as specific and detailed a process of non-violent decision making as the ideology of constitutionalism". However, she is also quick to point out that the traditional Anglo-American paradigmatic constitutionalism cannot be applied unquestioningly to developing societies. These societies lack some or all of the economic health and the civil and political maturity necessary to allow constitutionalism to work as it does in the United States or in the United Kingdom.

Ms Coomaraswamy demonstrates how constitutional developments in developing societies are often usurped for partisan ends and how the normal Western bulwark against such action, an independent judiciary, is often too weak, unaccustomed or ill-equipped to effectively prevent such usurpations. She also shows how South Asian societies often base their conception of legitimate political action on the demands of ethnic nationalism, rather than on constitutionalism, and the populace is made to acquiesce to such usurpations for the benefit of the powerful ethnic group. These usurpations, in turn, result in the delegitimisation of constitutionalism and move society away from peaceful progress.

This broader perspective, coupled with the fact that Ms Coomaraswamy's essays are lucidly presented, makes Ideology and the Constitution accessible not only to constitutional experts but to anyone concerned with the development of civil society. Her analysis of the ideological basis of constitutional developments makes clear, in a way no analysis of specific constitutional mechanisms ever could, both how constitutional development is progressing in Sri Lanka and what one must strive for in order to bring about a civil society anywhere in the world.

Three of the essays focus on the situation of human rights in Sri Lanka and South Asia. Again, Ms Coomaraswamy demonstrates how Western human rights models with their ideological underpinnings—a belief that human rights organisations are to act as watchdogs and adversaries to the state and seek redress through the court system—cannot be unquestioningly applied in a South Asian context. Here, the courts are known to have been quite ineffective, and many of the worst human rights violations are conducted by non-state actors, such as, in Sn Lanka's case, the LTTE.

Cow's Bellow

In the chapter entitled "Bellow like a Cow", Ms Coomaraswamy examines the situation of women's rights in South Asia in some detail. Using illustrative examples, she highlights that although there may be what by Western standards would be an effective campaign to vindicate women's rights, such action does not always work in South Asia Ensuring women's rights is not simply a matter of effective action by concerned groups along a Western model but, as with all other rights and the creation of civil society in general, it is necessary to change societal perceptions.

Stable institutions that respect rights and allow the possibility of free and active participation by all members of society in the democratic process, and an independent, effective judiciary, are necessary elements of a civil society. However, these institutions and conditions will not simply be created by incorporating them in a well-drafted constitution. These can only emerge if a tradition of constitutional legitimacy, power sharing, mediation and conciliation exists to allow these institutions and conditions the chance to function and evolve.

By identifying the ideological framework underpinning both actual and desired constitutional and human rights developments, Ideology and the Constitution helps to highlight the path to be taken in evolving a civil society in South Asia's developing world.