What can we learn from the use of the South African experience in the constitutional governance and reform experiment by ‘constitutional legislators’Footnote 1 in post-war Sri Lanka from 2009 to 2019? In seeking answers to this question, I engage with three debates in the field of comparative constitutional law. The first is the debate on methodology in comparative constitutional law. The methodology debate, in the context of constitution-making, is at a very early stage in the field of comparative constitutional law. The second is the debate on the character of ‘transformative constitutionalism’. This term is primarily associated with the South African experience of becoming a constitutional democracy. Transformative constitutionalism is viewed by some as an approach to constitutional governance that is new and different to that of liberal constitutionalism. The literature on transformative constitutionalism is preoccupied with the work of the Constitutional Court of South Africa. I argue that transformative constitutionalism is better understood as a genre of constitutionalism that is enabled by a range of conditions, among which an independent and strong Constitutional Court is but one. The third debate that I intervene in is the discussion on the manner and form of constitutional reform in Sri Lanka. I argue that any attempt to emulate South Africa's experience of ‘transformative constitutionalism’ in Sri Lanka's reform experiment requires greater attention to (a) the broader political, social, and economic context; and (b) the closely inter-connected processes by which constitutional reform was carried out in South Africa. I argue further that, in Sri Lanka, the South African experiences were used piecemeal within a constitutional reform project that was not intended to result in a fundamental transformation of the existing character of the constitution. The selective overlay of certain aspects of South Africa's transformative constitutionalism were therefore less likely to have a ‘transformative impact’.
This article is organized in five parts. In Part I, I begin by highlighting the gap in the debate on methodology in comparative constitutional law regarding constitution-making. This is followed by a critical assessment of ‘transformative constitutionalism’ in Part II, where I argue that it ought to be understood as a specific genre of constitutionalism. In Part III, I assess the recent constitutional reform experiment in Sri Lanka, and in Part IV, I evaluate the ways in which the South African experiences were invoked in that process. I examine three specific aspects of the Sri Lankan reform exercise in this Part: the process of constitutional reform, public consultation, and some of the substantive proposals. In Part V, I present my case for a methodology that insists on a sharper focus on the political, social, economic, and legal specificities within the comparative enterprise, particularly in relation to constitution-making.
I. DILEMMAS OF COMPARATIVE METHODS FOR CONSTITUTION-MAKING
What is the relevance of South Africa's constitution-making experience to Sri Lanka's constitutional reform project? How should constitutional legislators decide on the specific examples that they will follow or be inspired by in deciding upon the manner and form of constitutional reform in Sri Lanka? These questions draw attention to some of the grey areas in the use of comparative experiences in constitutional governance in Sri Lanka. The debate on methodology in comparative constitutional law has responded to similar questions, but mostly in relation to why and how judges use or refer to foreign law in their judgments. The debate is yet to be extended in a coherent way to other sub-fields of comparative constitutional law such as constitution-making. Even the existing debate, as Tushnet reminds us, reveals that one ‘should be appropriately cautious about what they believe they can learn from the study of comparative constitutional law’.Footnote 2
The significant interventions in the methodological debates in comparative constitutional law have been mapped in a useful way by Vicki Jackson. As Jackson suggests, the ‘comparative enterprise’ is wide-ranging and includes ‘doctrine produced by courts, features of government, and the processes of constitution-making and adoption’.Footnote 3 Each of these subsets of activities is associated with a range of methodological challenges. One of these challenges is the need for an inter-disciplinary approach in making the comparison. For instance, Ran Hirschl argues that ‘any attempt to portray the constitutional domain as … predominantly legal, rather than imbued in the social or political arena, is destined to yield thin, ahistorical, overly doctrinal, or formalistic accounts of the origins, nature and consequences of constitutional law.’Footnote 4 Hirschl describes current methodologies of comparative constitutional law as ‘fuzzy and amorphous at best’.Footnote 5 A turn to the social sciences and to its ‘tremendous descriptive depth and explanatory potential’ is essential, according to Hirschl, if the study of comparative constitutional law is to be linked to its ‘actual capacity to induce real change’.Footnote 6 Saunders cautions against the marginalization and/or the homogenization of the constitutional experiences of states and regions in this field. She calls for comparative constitutional law to be understood as ‘a global constitutional gene pool’.Footnote 7 She identifies a range of challenges posed by diversity and particularity to comparative constitutional law, including the challenges posed by culture and pluralism in different jurisdictions.
Tushnet's intervention in this debate is to categorize existing methodologies into three: normative universalism, functionalism, and contextualism. He identifies two subsets of contextualism – simple contextualism and expressivism. Normative universalism presupposes that constitutional ideas have a universal reach. Functionalism focuses on the outcomes that are sought to be achieved through constitutional ideas. Contextualism insists that ‘constitutional ideas can only be understood in the full institutional and doctrinal context within which they are placed’.Footnote 8 Expressivism, as a sub-set of contextualism, ‘takes constitutional ideas to be expressions of a particular nation's self-understanding.’Footnote 9
These academic interventions on methodology in comparative constitutional law are helpful in identifying the limitations of current approaches to research in the field. The approach is mainly that of diagnosis rather than prescription. The development of prescriptive approaches would be useful for the development of more robust theory in this field. It would help to avoid what Hirschl described as a ‘an asystematic and methodology-light practice of research design and case selection’.Footnote 10
Frankenberg offers an even stronger critique of comparative method.Footnote 11 He calls for what he describes as a ‘post-Cinderella and post-Sleeping Beauty mode of comparative constitutional studies’.Footnote 12 He defends ‘a layered approach’ to comparative constitutional law that focuses on specificities. The layered approach emphasizes that a constitution has several layers of meanings, including the following – constitutions as law and order, constitutions as culture (and mutually constituting with culture), and constitutions as the imagination of the community.Footnote 13 To Frankenberg, an appreciation for the layered and inter-related functions of a constitution ought to be central to the comparative enterprise in constitutional law.Footnote 14
In this article, I attempt a modest and specific contribution to this debate. Through my critique of the invocation of South Africa's experience in transformative constitutionalism in constitutional reform and governance in Sri Lanka, I propose ways of thinking about methodology (particularly in relation to constitution-making) within the broader field of methodology in comparative constitutional law. I draw upon Frankenberg's idea of a ‘layered approach’ in this task. I develop this analysis in the next Part by offering a contextualised assessment of transformative constitutionalism using ‘the layered approach’.
II. TRANSFORMATIVE CONSTITUTIONALISM
The literature on transformative constitutionalism presents it as a genre of constitutionalism that is distinct from ‘liberal democratic constitutionalism’.Footnote 15 Transformative constitutionalism, according to Klare, is about the possibility of achieving ‘dramatic social change through law-grounded processes’.Footnote 16 This social change, according to Klare, is a ‘transformation vast enough to be inadequately captured by the phrase “reform”, but is something short of or different from “revolution”’.Footnote 17 Klare famously described transformative constitutionalism as:
… a long-term project of constitutional enactment, interpretation, and enforcement (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country's political and social institutions and power relationships in a democratic, participatory, and egalitarian direction.Footnote 18
He identifies five aspects of the Constitution of the Republic of South Africa 1996 (the South African Constitution) that justify this particular interpretation. These aspects establish clearly that transformative constitutionalism is ‘post-liberal’, in the sense that it is distinct in manner and form from ‘liberal constitutionalism’. For instance, Klare points to the ‘historical self-consciousness’ of the South African Constitution as ‘an instrument committed to social transformation and reconstruction’.Footnote 19 Furthermore, he emphasizes that ‘legal and political institutions are chosen, not given, that democracy must be periodically reinvented, and that the Constitution itself is the contingent (even fragile) product of human agency.’Footnote 20 Elsewhere, Klare identifies how legal culture is critical in this project. He notes that ‘legal culture and socialization constrain legal outcomes quite irrespective of the substantive mandates entrenched in constitutions and legislation.’Footnote 21 Klare argues that transformative constitutionalism demands ‘a new imagination and self-reflection’ about legal methods and legal adjudication.Footnote 22 For Klare, while ‘law and legal practices’ can facilitate transformation, it requires ‘an updated, politicized account of the rule of law’.Footnote 23 According to this account, transformative constitutionalism is transformative of the entire legal system. This transformation is expected to be a mutually constitutive character of the legal, the political, and the social in society.
Subsequent debates on transformative constitutionalism, however, focus primarily on the work of the Constitutional Court of South Africa, its methods of reasoning, and the impact of its judgments on South African society.Footnote 24 These debates have been extended to an assessment of how other courts have been inspired (or otherwise) by the South African example, and also to a more complex accounting for the origins and history of the concept of transformative constitutionalism.Footnote 25 Not much attention has been devoted to other conditions and contingencies that Klare described as being critical to the project of transformative constitutionalism. Whether from a historical perspective or in terms of a better understanding of the potential and the limits of transformative constitutionalism, not much is understood within debates on transformative constitutionalism about the significance of these other conditions and contingencies.Footnote 26
Within the field of comparative constitutional law, it is not adequate to understand transformative constitutionalism only in terms of the methods employed by the South African Constitutional Court. Transformative constitutionalism ought to be appreciated as a specific genre of constitutionalism. This genre is, in my view, characterized by the following. It is a result of the political and social liberation movement against apartheid. It explicitly casts positive obligations on the state to ensure social justice. For the judicial branch of the state, this approach demands a specific mode of judicial reasoning, including a constitutional commitment to the positive duty to protect.Footnote 27 For all actors within the legal sector, it means that all laws, modes of interpretation, and practices must be aligned with transformative constitutionalism. The legal culture is expected to engage in a continuous process of transformation. Other areas that ought to engage in this continuous transformation include legal education and the reconciliation process.Footnote 28 Transformative constitutionalism has a stronger focus on the ‘ought’ than on the ‘is’.
It must be noted at this point that transformative constitutionalism has been critiqued for its ambiguity as well. Fowkes, for instance, notes that ‘[t]ransformative constitutionalism … is about preservation as well as change, about restraint as well as boldness, about retaining things from an old order (at least temporarily) as well as sharply rejecting them.’Footnote 29 He goes on to note that ‘transformative constitutionalism is the closest thing to an empty term, standing for change unless it does not and judicial boldness unless the situation calls for restraint.’Footnote 30 He warns that it is ‘a conceptual problem without a conceptual solution’.Footnote 31
Contemporary South Africa is facing widening economic inequality and a high incidence of violence.Footnote 32 This reality contrasts with the transformative promise of the South African Constitution.Footnote 33 These conditions are a reminder that transformative constitutionalism, which provides the structure for transforming the legal culture, must also be accompanied by improvements in the actual quality of life in society. As Sibanda points out, the capacity of transformative constitutionalism to respond to these social and economic concerns will determine its continued relevance to South Africa's future.Footnote 34 More recently, an attempt has been made to revisit transformative constitutionalism ‘within the historical matrix of colonialism and Eurocentrism’.Footnote 35 Through these approaches, scholars are attempting to deepen their understanding of the prospects for South Africa's constitutional order.
Understanding transformative constitutionalism as a specific genre has the following implications. Firstly, constitutional design, institutions, and substantive provisions should be ascribed meanings that are coherent and consistent with the normative foundation of transformative constitutionalism. Secondly, the sequential place of constitutional text and implementation within this specific genre has to be recognized. The South African experience of transformative constitutionalism includes certain features which establish that constitutional reform and the enforcement of the constitution is in fact a result of particular political, cultural, and even economic processes. Thirdly, the poverty, inequality, and violence experienced in South Africa highlight the need to pay greater attention to the relationships between these realities and constitutional governance.
The foregoing implications suggest that a thicker account of transformative constitutionalism will strengthen the comparative enterprise. These implications also provide a convincing explanation as to why the comparative reliance on South Africa's version of transformative constitutionalism has failed to yield the expected outcomes. In the next Part, I illustrate one such instance in post-war Sri Lanka.
III. CONSTITUTIONAL GOVERNANCE AND REFORM IN POST-WAR SRI LANKA
The military defeat of the Liberation Tigers of Tamil Eelam (LTTE) in May 2009 is a milestone in Sri Lanka's contemporary history. It marks the end of a three decade-long internal armed conflict.Footnote 36 Constitutional governance in the decade since then can be roughly divided into two stages, using the change of government in 2015 as a landmark. South Africa's transition to democratic governance was invoked mostly in relation to transitional justice in the first stage (from 2009 to 2014), and mostly in relation to constitution-making in the second stage (from 2015 to 2018).
A. Constitutional Governance (2009–2014)
Constitutional governance in the first stage (2009–2014) was shaped by two significant developments. One was the Eighteenth Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka 1978 (the 1978 Constitution).Footnote 37 The other was the impeachment of the Chief Justice in January 2013. The Eighteenth Amendment effected two fundamental changes in the 1978 Constitution: it removed the two-term restriction on the office of the Executive President, and it replaced the Constitutional Council with a Parliamentary Council.
The Constitutional Council had earlier been introduced by the Seventeenth Amendment in 2001. The Council comprised the Prime Minister, the Speaker of Parliament, the Leader of the Opposition, and seven individuals from civil society.Footnote 38 It acted as a body vetting the power of the Executive President to appoint individuals to high office and to independent commissions.Footnote 39 In 2010, the Eighteenth Amendment replaced the Constitutional Council with a Parliamentary Council. The President only had to ‘seek the observations’ of this Council in making appointments to specified independent commissions and to specified high offices.Footnote 40
The Eighteenth Amendment Bill, which effectively repealed the Seventeenth Amendment, was held to be constitutional by the Supreme Court and was enacted with the required special majority support in Parliament.Footnote 41 This had the effect of weakening constitutionalism by enlarging the reach of the Executive Presidency.Footnote 42 This was evident in the manner in which the Chief Justice was impeached in January 2013.Footnote 43 The impeachment was pursuant to a procedure that was flawed by design and partial in effect.Footnote 44 The Sri Lankan Government was criticized locally and internationally for the impeachment.Footnote 45
This weakening of constitutional governance was accompanied by a notable absence of policy measures to address the issues of justice for those affected by the internal armed conflict. During this time, sections of civil society maintained a national and international demand for transitional justice. That demand was often substantiated by references to South Africa's experiences in transitional justice. From May 2009 onwards, Sri Lanka increasingly came under the scrutiny of the Human Rights Council of the United Nations (UN) for its failure to implement measures for transitional justice.Footnote 46 The reports commissioned by the UN Secretary-General, the resolutions of the Human Rights Council, the reports by the Office of the High Commissioner for Human Rights (OHCHR), and the report commissioned by the OHCHR represent the gradual ratcheting up of international pressure on the Sri Lankan Government to implement transitional justice measures.Footnote 47 During this time, it was common for local and international debates on this topic to be infused with references to South Africa's experience of transitional justice. Distinct aspects of the South African transitional justice experience, such as its Truth and Reconciliation Commission, were invoked to call for similar interventions by the Sri Lankan Government. One of the responses of the Government to these international calls was the appointment of a presidential commission of inquiry – the Lessons Learnt and Reconciliation Commission. The report of this Commission was robust, except with regard to its findings on war crimes and crimes against humanity during the last stages of the internal armed conflict.Footnote 48 The recommendations of the Commission, however, were not implemented effectively.Footnote 49
The invoking of South Africa's experiences in transitional justice in Sri Lanka was reinforced by the diplomatic engagements of South Africa with Sri Lanka. In 2014, the Deputy President of South Africa, Cyril Ramaphosa, was appointed as a Special Envoy of the President of South Africa to Sri Lanka. The Special Envoy visited Sri Lanka and met with key political and other stakeholders in the exercise of his mandate. In anticipation of his visit, the Special Envoy made the following remark: ‘We will discuss with the people in the community. We will also try to help the Sri Lankans with the Truth and Reconciliation process, their own constitutional reform and make sure Sri Lanka does indeed become a stable country where they will enjoy human rights.’Footnote 50 This observation points to the inter-related nature of transitional justice initiatives and constitutional reform in the South African experience. However, in invoking the South African experiences in Sri Lanka, the experiences in transitional justice and in constitution-making were invoked mostly as distinct experiences rather than as two sets of experiences that are inter-related.
B. Constitutional Governance (2015–2019)
The election of a new President and subsequently of a new parliament in Sri Lanka in 2015 brought with it the promise of legislative, policy, and constitutional reform.Footnote 51 The agenda for constitutional reform involved an immediate amendment to the 1978 Constitution to reduce the powers of the Executive President, and the adoption of a new constitution within two years. A significant feature of the second stage of governance in post-war Sri Lanka (2015–2019) was extensive legislative and policy reform, and the attempt at constitutional reform.Footnote 52 The South African experiences were invoked in discernible ways in several of these initiatives.
The Nineteenth Amendment to the 1978 Constitution was adopted in May 2015. The Amendment effected several changes, including the re-introduction of a modified Constitutional Council and the reduction of the powers of the Executive President.Footnote 53 In January 2016, the Government formally introduced a procedure, by way of a motion in Parliament, for the adoption of a new constitution.Footnote 54 This resolution mandated Parliament to convene as a Constitutional Assembly. Six thematic sub-committees were appointed under a Steering Committee of the Assembly for the purpose of making proposals.Footnote 55 A panel of experts was appointed to support the work of the Constitutional Assembly. Meanwhile, a Public Representations Committee (PRC) was appointed by the Cabinet to receive proposals from the public with regard to constitutional reform.Footnote 56 Once a draft constitution was adopted by the Constitutional Assembly, the draft was to be presented to Parliament through the Cabinet. From that point onward, the draft was to be adopted according to the procedure stipulated in the 1978 Constitution.Footnote 57 The adoption of a new constitution requires approval by a special majority in Parliament and approval by the people at a referendum.Footnote 58
Within four months of being appointed, the PRC visited all 25 districts in the island to receive submissions and submitted its report.Footnote 59 Thereafter, the reports of the Sub-Committees of the Constitutional Assembly were published. This was followed by the submission of an Interim Report by the Steering Committee in October 2017.Footnote 60 By this time, however, it was evident that the political will for constitutional reform was weakening. The constitutional crisis of October 2018 effectively meant that the constitutional reform process would not continue. This crisis began when the President purported to remove the Prime Minister and to appoint the former President (who was then an ordinary Member of Parliament) as the Prime Minister. This was followed by the prorogation and dissolution of Parliament. Matters were eventually resolved by December 2018, when a full bench of the Supreme Court held that the dissolution of Parliament by the President was unconstitutional.Footnote 61 In January 2019, the Expert Panel submitted its report and the Constitutional Assembly was convened to debate the report. This was the last formal development in the constitutional reform process. The tragedy of the Easter Sunday attacks in April 2019 brought to light the ongoing political rivalry between the President and the Prime Minister.Footnote 62 A new president has been elected since then (in November 2019), signalling a change in the direction of governance.Footnote 63 Parliamentary elections are due to be held in 2020, and elections to the Provincial Councils are overdue.Footnote 64 The insecurities generated by the Easter Sunday attacks of 21 April 2019, ethnic polarization, and the desire for a strong government have been suggested as reasons for the change of government in November 2019.Footnote 65
During this second stage, the invoking of the South African experience of transition was evident at the level of national politics, in the public imagination, as well as in the normative debates among experts.Footnote 66 Notable events during this time were the visits by Justices of the Constitutional Court – Justice Albie Sachs, Justice Dikgang Moseneke, and Justice Edwin Cameron – to Sri Lanka. Another example is the visit by a South African delegation led by its Deputy Minister of International Relations and Cooperation.Footnote 67 These visits involved knowledge exchange and sharing with lawyers, university students, and the public at large. The impact of the South African experience in Sri Lanka's public imagination was also evident in the public's submissions to the PRC and the Consultation Task Force on Reconciliation Mechanisms (the Task Force). The Task Force was appointed pursuant to a commitment made by the Government in the UN HRC resolution of 2015 to ‘seek the views and comments of the public on the proposed mechanisms for transitional justice and reconciliation.’Footnote 68
The reports of the PRC and the Task Force refer to the South African experience in the 1990s. The PRC makes explicit references to the South African experiences in relation to the supremacy of the constitutionFootnote 69 and the composition of the Judicial Service Commission.Footnote 70 On the preferred model for ‘truth seeking’, it was noted by the Task Force that ‘providing a space for affected persons and perpetrators to come forward to speak about their experiences and acknowledge past abuses was an important process in South Africa.’Footnote 71 The Task Force did demonstrate some sensitivity to the differences in the South African context. For instance, it noted that the South African context was different ‘in terms of the power relations between the majority and minority communities in each country’.Footnote 72 The Task Force further noted a submission on the controversy regarding the granting of amnesty before the South African Truth and Reconciliation Commission.Footnote 73 This observation is a useful reminder of the complex challenges that South Africa faced in its truth-telling and reconciliation process. The report also took note of the submission by filmmakers who requested that ‘work on truth and justice’ be supported ‘by way of a fund or grant, such as in South Africa’.Footnote 74 Moreover, the report by the Presidential Commission of Inquiry into Complaints of Abductions and Disappearances also makes detailed references to the South African experience of truth-seeking.Footnote 75
It is evident from the foregoing discussion that South African experiences were invoked with regard to transitional justice and constitutional reform in post-war Sri Lanka. However, it is also evident that the invocation was selective and focused on institutional design. This practice raises questions about methodology in the comparative enterprise, which I examine in the next section.
IV. CONSTITUTIONAL REFORM
If there was any doubt about the political viability of the most recent constitutional reform proposals in Sri Lanka, the constitutional crisis of October 2018 made it clear that the initiative had failed. However, critical study of this crisis, in hindsight, provides useful insights on constitutional reform – specifically in relation to Sri Lanka, but also more generally as a case study. In this section of the paper, I focus on three of these aspects, with the objective of critiquing the invocation of the South African experience of transformative constitutionalism in Sri Lanka's reform experiment. These three aspects are the process adopted for constitutional reform, public consultation, and certain substantive aspects of reform.
The constitutional reform process in South Africa was unique and had an incremental character to it. Political negotiations resulted in an Interim Constitution, which provided specific procedures for the adoption of a new constitution. The substantive scope of the new constitution was determined by the Interim Constitution in the thirty-four principles that had been agreed upon.Footnote 76 This entire process was legitimized on multiple levels. The liberation movement and its long-drawn-out struggle legitimized the initial political negotiations and the adoption of an Interim Constitution. The first democratic elections of 1994 legitimized the Constitutional Assembly. The new constitution itself was legitimized by the Public Participation Programme and through review by the Constitutional Court.Footnote 77 The Public Participation Programme attracted a very high degree of engagement, numerically as well as qualitatively. In its review of the draft constitution, the Constitutional Court received a further eighty-four submissions.Footnote 78
The political and economic context of South Africa enabled the negotiators and key stakeholders to design this specific process for constitutional reform.Footnote 79 The extended liberation struggle against apartheid generated the political, economic, and social momentum for this particular form of institutional transformation and for the multi-party consensus for the advent of constitutional democracy. International condemnation of apartheid had led to economic sanctions against South Africa and a pushback against South African sports teams in the global sporting arena.Footnote 80 The notion of ‘transformation’ was not only possible but necessary in this context. The processes adopted for constitution-making in South Africa were therefore inseparable from the design and substance of the new constitution. As the Constitutional Assembly observed, ‘the essential principle of the constitution-making process from the outset [is] that the process of drafting and adopting the new constitution, is as important as the final product itself.’Footnote 81
The events that enabled the reform process to unfold in Sri Lanka were volatile because they took place in an unstable political environment. The appointment of a new President and the subsequent change of government in 2015 were the outcome of elections. These outcomes were made possible by a social movement which emerged only in the few months prior to the presidential election. It was a movement of loosely-convened groups, described as the ‘January 8th movement’, which had the immediate goal of election outcomes in view.Footnote 82 The name of the movement itself reflects the short-term and narrow goal of this movement. Elsewhere, this movement has been described as having a single-issue and common candidate focus.Footnote 83
During this time, there was a notable absence of agreement on the need for constitutional reform among the political parties and political representatives who supported the common candidate.Footnote 84 The key actors in the move for constitutional reform were a handful of public representatives who either represented the minority Tamil political parties or the other smaller political parties.Footnote 85
Wider Sri Lankan society was similarly ‘unprepared’, so to speak, for constitutional reform.Footnote 86 Sri Lanka's three-decade-long internal armed conflict is evidence of the fractured nature of its society. Ethno-nationalism has been a strong organizing factor throughout Sri Lanka's post-independence history.Footnote 87 The internal armed conflict was a result of a militant demand for a separate state by the LTTE. The internal armed conflict aggravated cleavages along ethnic lines within the state, and within wider society. The end of the internal armed conflict paved the way for the re-emergence of Sinhala-Buddhist nationalism.Footnote 88 It has been argued that the re-emergence of Sinhala-Buddhist nationalism was a root cause of the anti-Muslim riots of 2014 and 2018.Footnote 89 The reactions to the Easter Sunday attacks in the form of anti-Muslim riots is further evidence of this phenomenon. Moreover, in Sri Lanka, several political parties are organized around ethnic and/or religious identity.Footnote 90
The absence of any sustained attempt at bridging the ethno-national divide is a notable gap in Sri Lanka's democracy. The divisive character of electoral politics is aggravated by social and cultural cleavages in Sri Lankan society. For instance, state-funded education is primarily in the ‘mother tongue’, resulting in students being divided into separate classrooms according to their first language. Historians and cultural studies specialists have pointed out that a particular notion of authenticity is evident in Sri Lankan society.Footnote 91 That notion is that Sri Lanka is the home of Sinhala-Buddhists, and that other ethnic or religious minorities are not ‘authentic’. This frame of ‘authenticity’ is often applied to determine the ‘insiders’ and ‘outsiders’ within the other ethnic groups as well.Footnote 92 The demands for accountability for human rights violations, reparations, and reconciliation in relation to the internal armed conflict are a by-product of the more widespread problem of ethno-nationalism in Sri Lanka. In comparison, as Sparks points out, among the political parties in South Africa, only two were founded on ethnicity.Footnote 93 Moreover, none of the ethnic groups were able to dominate the public sphere.Footnote 94 It seems to me therefore that in South Africa, ethnicity does not carry the same significance that it carries in the Sri Lankan context.
The focus on constitutional reform in 2016 was largely in the absence of effective and sustained political, legal, and social responses to the divided characteristics of Sri Lankan society. The recommendations made by the Lessons Learnt and Reconciliation Commission and the recommendations made by the UN Human Rights Council had not been implemented in an effective manner by the Sri Lankan Government. Post-2015, the co-sponsored resolution adopted at the UN Human Rights Council was expected to set the agenda for transitional justice and reconciliation in Sri Lanka.Footnote 95 The Sri Lankan Government implemented several of these recommendations. These included the establishment of the Office of Missing Persons, the return and resettlement of persons displaced by the internal armed-conflict, and the recommencement of investigations and prosecutions into several cases involving extra-judicial killings and enforced disappearances. However, these developments were criticized by some political representatives, as well as segments of civil society, as efforts to undermine Sri Lanka's ‘sovereignty’.Footnote 96
In South Africa, the democratization of the 1990s included measures that accommodated the political interests of the majority as well as those of the minority. The ‘white only’ referendum and the Interim Constitution had the effect of addressing the insecurities of the minority regarding their political future in a democratic South Africa. The transition to democracy was a result of a long-drawn-out liberation struggle which had the support of the majority. Even then, the actual transition was gradual and took almost six years.Footnote 97 The multi-party negotiation process, the Convention for a Democratic South Africa (CODESA) of the early 1990s, was tense and challenging, even when the expectation was set at ‘sufficient consensus’.Footnote 98 The violence and unrest experienced during this time placed the negotiations under considerable pressure.Footnote 99 In Sri Lanka, on the other hand, the anticipated transformation is perceived as being primarily for the recognition of the rights of the minorities. As was evident in public discussions regarding these proposals, the recognition of minority rights and power-sharing arrangements are perceived as a threat to the majority. The attempt at forging a new constitution comes in the aftermath of a military victory in the armed struggle for separation, and the timeframe for the proposed project of constitutional reform was only two years. Moreover, political support for constitutional reform was fragile and primarily driven by a few elected representatives. These stark differences in the political and social context suggest that the prospect of a South African style of ‘transformation’ was very low in Sri Lanka.
B. Public Consultation and Participation
The closed-door negotiation process that preceded the adoption of the Interim Constitution in South Africa was criticised for its lack of transparency and its failure to engage the public.Footnote 100 The adoption of the Interim Constitution, however, was followed by a public consultation process which has since then been acclaimed as a global model.
Similar to the constitution-making process, the South African process of public participation had a distinctive and incremental character to it. The consultation was framed by the thirty-four constitutional principles that had been agreed upon through a multi-party negotiation process. These principles indicated to the South African people the strength of the political commitment to the constitutional reform process. Moreover, the anticipated review of the draft constitution by the Constitutional Court was a guarantee to the people that these principles were in fact the foundation of the reform exercise. These normative aspects of the public consultation process were complemented well by the widespread public engagement processes implemented during this time.
The Public Participation Programme had a wide reach. The people's engagement with the process was dynamic. A campaign carrying the messages of ‘You've made your mark, now have your say’ and ‘It's your right to decide your constitutional rights’ was used to engage the public across radio, television, newspapers, and other forms of media.Footnote 101 The newsletter Constitutional Talk,Footnote 102 the Constitutional Education Programme, and constitutional public meetings were developed for the purpose of generating awareness among the ‘rural, marginalised and disadvantaged communities’ and to obtain their input.Footnote 103 This was further complemented by strategic engagement with civil society through the National Sector Public Hearing Programme. In this programme, members of the Constitutional Assembly had direct engagement with civil society organizations on specific themes.Footnote 104 Submissions were received from the public in the first stage of the process (February to August 1995), and then on the working draft of the constitution as well, when this became available.Footnote 105 This second stage of consultation continued until the adoption of the new constitution (November 1995 to February 1996). The submissions received from the constitutional public meetings, for instance, were transcribed, categorized, and directed to the relevant committees.
The process designed by the Constitutional Assembly extended to a post-adoption phase as well.Footnote 106 In this phase, the Constitutional Assembly focused on education on the content of the adopted constitution.Footnote 107 The number of submissions received has been estimated at approximately 1.7 million, and the total number of participants in the process at 3.8 million.Footnote 108 Approximately 1,200 civil society organizations were involved in the exercise.Footnote 109 It could perhaps even be said that the public debate generated by the process provided a healthy context for the work of the Constitutional Assembly. This was complemented by other initiatives taken at this time, such as the initiative to use ‘plain language’ in legal drafting as well as in drafting the new constitution.Footnote 110 The material developed by the Constitutional Assembly was produced in this style and translated into the 11 official languages.Footnote 111
Nevertheless, questions have been raised by some as to the impact of the submissions and consultations on the drafting of the new constitution.Footnote 112 Even the sceptics concede, however, that the public participation process and programmes were inclusive, that they generated awareness about constitutional governance, and that they earned widespread legitimacy for the reform exercise.Footnote 113
The Sri Lankan public consultation process was procedurally and qualitatively different from that of South Africa. The Public Representations Committee was appointed by the Cabinet in January 2016 and given four months to submit its report. The PRC called for submissions on twenty pre-identified themes.Footnote 114 The PRC did not have a mandate to educate the public on constitutional reform. Although the Committee did not have the luxury of time, they travelled to all twenty-five districts in the country.Footnote 115 It was the first time in Sri Lanka that public consultation was carried out at the level of all the districts. The Committee's report was submitted by the end of April 2016.
The public representations were carried out within a loose framework. The themes were open-ended, allowing persons coming before the PRC to make a wide range of submissions. The broad nature of the themes, along with the lack of strong political support for the public consultation process, diluted the process to some degree. The public consultation process was primarily a method of collecting submissions. No public education programmes were implemented during this time to engage the public or to provide them with required information for consideration in making their submissions. The short time period for the mandate of the PRC minimized the possibility of mobilizing the public around the idea of constitutional reform. It further placed the PRC under pressure in terms of producing their report. In total, around 4,200 submissions were received by the PRC.Footnote 116
The lack of time, the absence of strong political support, and the lack of active public awareness-raising and dialogue contributed to the low level of engagement by the people with the PRC. During the same time, some segments of the Buddhist clergy and some Members of Parliament from the Opposition were critical of the public consultation process as well as the attempt at constitutional reform. These related factors undermined the legitimacy of the public consultation process in Sri Lanka.
C. Substantive Aspects of Constitutional Law
The South African experiences in constitutional reform and the notion of transformative constitutionalism were invoked in Sri Lanka in relation to substantive reform proposals as well. The proposals for a Constitutional Court and for the judicial enforcement of economic and social rights (ESRs) in the constitutional reform process in Sri Lanka were inspired by the South African experience.Footnote 117 In the somewhat marginal public debates on the proposed reforms, proponents of a Constitutional Court made regular and routine references to the structure of the Constitutional Court of South Africa, as well as to its jurisprudence on the enforcement of ESRs.Footnote 118 These ideas were, however, met with some criticism in Sri Lanka. It was argued that a new court that is above the Supreme Court and comprised of judges who are direct appointees would undermine the standing of the judiciary.Footnote 119 The proposal for judicial enforcement of ESRs was subjected to criticism as well. One common argument was to point to the inequalities in South African society as evidence that judicially enforceable ESRs guarantees have been ineffective.Footnote 120 However, in the submissions made to the PRC, the proposals for judicial enforcement of ESRs received considerable support, resulting in the PRC recommending them.Footnote 121
The pushback and the notable lack of support for these proposals among the members of the Constitutional Assembly and wider Sri Lankan society can be partly explained as follows. In South Africa, the establishment of a Constitutional Court was central to the establishment of a new genre of constitutionalism. The exercise of public power, and even certain forms of private relationships, are subject to review as to their constitutionality by the Constitutional Court. Within this institutional framework, judicially enforceable ESRs are specific constitutional guarantees that could be relied upon to address the inequalities of South African society. The models of constitutional courts and judicially enforceable ESRs have been adopted in different constitutions globally.Footnote 122 However, these institutional models carry more depth and relevance when understood within the broader constitutional shift at play. It was difficult to identify a similar ideological or normative commitment in the Sri Lankan constitutional reform exercise. Consequently, advocacy for the establishment of a constitutional court and for judicial enforceability of ESRs did not attract support among the political elite or the general public. This was compounded by three other factors. One was the open-ended nature of the process for constitutional reform. The second was the absence of a public education programme on the constitutional reform project. The third was the brief public consultation process.
D. No Fundamental Shift
The Sri Lankan constitutional reform experiment was notable in that it did not aim to achieve a fundamental shift through a new constitution in an explicit way. It was understood that several contentious aspects of the current 1978 Constitution would not be reformed. These contentious aspects include the ‘foremost’ place given to Buddhism,Footnote 123 the protection of personal laws from judicial review,Footnote 124 and the continuation of power-sharing in terms of devolution, as opposed to the introduction of federalism.Footnote 125 The constitutional reform agenda was modest and was aimed at improving the existing arrangements for devolution of power, improving the constitutional approach to the ‘nature of the state’, the re-introduction of parliamentary form of government, the establishment of a second chamber, the establishment of a constitutional court, and electoral reform.Footnote 126 The particular form of republican constitutional governance already in place under the 1978 Constitution was therefore to continue in some form alongside anticipated reform. In the absence of political will for a fundamental shift in constitutional governance, Sri Lanka's use of the South African experiences did not carry with it the promise of transformative constitutionalism.
Having analyzed the selective and disconnected invocation of the South African experience in Sri Lanka's reform process, in the next part, I discuss the implications of this experience for the comparative enterprise.
V. SPECIFICITY, CONSTITUTION-MAKING, AND THE COMPARATIVE ENTERPRISE
In Parts III and IV, I argued that the attempts at emulating South Africa's experience of transformative constitutionalism in Sri Lanka have not been effective. I offered two explanations for this failure. One relates to the nature of transformative constitutionalism itself. Transformative constitutionalism is not merely a question of constitutional design. Rather, it is constitutional design that takes place according to an incremental process, which is in turn enabled and sustained by a specific political and social context. The literature on transformative constitutionalism focuses primarily on the role of the Constitutional Court. However, I argued in Part II that the process followed in constitutional reform and other aspects of constitutional governance are also significant aspects of transformative constitutionalism. The other, related explanation is the contrast in the Sri Lankan context, in which the South African experiences were invoked. This contrast is evident in almost all comparable aspects such as the political, social, economic, and demographic aspects. In this part, I develop these explanations further in an attempt to affirm existing knowledge on comparative methodology in constitution-making. I argue that these experiences demand more caution, attention to detail, and sensitivity to context in the use of comparative methods in constitution-making.
Emulating the South African experience of transformative constitutionalism demands that due attention be paid to its organic nature. The historical context, including the liberation movement, shaped the material conditions under which democratization and innovation in constitutional governance were made possible. The possibility of democratic constitutional governance was made sustainable through an incremental process, the public consultation process, as well as through the substantive aspects of the proposed constitution.
Foregrounding the organic and specific nature of constitutional reform in South Africa raises questions about whether comparative methods have any relevance, particularly in the field of constitution-making. It seems to me, however, that paying attention to the specificity of a given experience in constitution-making in fact advances and strengthens the comparative enterprise. I can identify at least three advantages of paying attention to the organic nature and specificity of constitution-making.
Firstly, it allows for a more honest use of comparative method in constitution-making. It compels constitutional legislators to admit to what may be possible or impossible in their own context. It demands a deeper appreciation of the work that is required in the attempt to emulate comparative experiences. Therefore, secondly, it allows for setting more realistic expectations from the constitutional reform exercise. The study of the organic nature of a given constitutional reform experience can lead to a better understanding of the conditions that facilitated that process. Being conscious of whether or not these conditions are available in their own context would allow constitutional legislators to be more realistic in setting expectations for constitutional reform. Thirdly, sensitivity to the organic nature and the specificity of the constitution-making process is useful in identifying practical steps that are necessary in emulating that comparative experience. It is helpful in designing processes, including in sequencing. It is also helpful in institutional design.
In examining the invocation of the South African experience in Sri Lanka's most recent constitution-making exercise, I am, in fact, repeating the call against the superficial importation of institutional models within the comparative enterprise.Footnote 127 A deeper and contextual understanding of the South African experience alerts the constitutional legislator to what I view as the more useful and interesting insights that can be learnt from South Africa from a comparative perspective. I identify and discuss four such insights below.
Firstly, the South African constitutional reform experience was a definitive departure not only from its apartheid past, but also from liberal constitutionalism as it is broadly understood. The result was a new genre of constitutionalism. The defining characteristics of this genre include the following: (1) a clear vision of social welfare that demands distributive justice from the state, including from the judiciary; (2) measures for transitional justice such as truth-telling, reparations and amnesty, and the restructuring of legal and social institutions; and (3) the conscious and deliberate public engagement and consultation in the process. The work of the Truth and Reconciliation Commission created the social and cultural ethos within which South African society was prepared for the process of replacing a society based on apartheid with what has been described as ‘a rainbow nation’.Footnote 128 Within this context, constitutional reform is evidently an outcome of the struggle for liberation. It undeniably has revolutionary and radical undertones to its approach. This is the approach described as ‘post-liberal’ by Klare.Footnote 129
A high degree of consistency with this vision of constitutional reform was evident in the general South African experience in transitioning to democracy. That is the second insight. The greater the coherence across the process, public engagement, institutional design, and the substantive constitutional guarantees, the greater the likelihood that the vision would be embraced across society. South Africa's transformation was in the interests of the majority, and it took place at a time when a new wave of democratization was taking place globally.Footnote 130 In Sri Lanka, on the other hand, not only was the anticipated transformation perceived as being in the interest of minorities, but it also unfolded within a global context of the rise of populism.Footnote 131 These additional challenges in Sri Lanka limit the relevance of the South African experience to Sri Lanka's attempts at constitutional reform.
The third useful insight from South Africa regarding constitution-making, from a comparative perspective, is that the buy-in of powerful political elites and the different groups and communities should ideally be a pre-condition. In the case of South Africa, the Interim Constitution and the constitutional principles reflected a multi-party commitment. That brought a measure of clarity and a political vision to the task of constitutional reform. In Sri Lanka, the buy-in of political elites across party lines was lacking. Moreover, it was unclear as to whether the reform process had the support, by and large, across Sri Lanka's diverse ethnic and religious communities.
The fourth insight from the South African experience is with regard to public engagement and education. There is not much evidence as to the input to the constitutional reform process by the public via the public consultation process. However, the Public Participation Programme generated public engagement and debate on numerous issues related to the reform exercise in South Africa. This facilitated public support and ownership of the reform project. In Sri Lanka, the public consultation process was primarily for receiving submissions from the public and was brief. By design, the process was severely limited and could not therefore generate a sense of public support or ownership of the reform project.
Writing in 1985, Frankenberg warned that ‘As long as foreign places only look like or unlike home … and as long as they are treated as same or other, they do not speak for themselves.’Footnote 132 In this article, I have argued that the South African experiences in constitutional reform were invoked in Sri Lanka's most recent constitutional reform exercise in a way that did not allow the South African experiences to ‘speak for themselves’. Inspired primarily by Frankenberg's proposal for a layered approach to comparative constitutional law, I have attempted to allow the South African experience in transformative constitutionalism to speak for itself. Based on that, I explained why I take the view that Sri Lanka's reliance on the South African experiences could have benefitted from a closer reading of the South African experience. In doing so, I have further argued that transformative constitutionalism is a much broader playing field and includes constitution-making. Transformative constitutionalism, as a genre, therefore is likely to be most meaningful if it travels and inspires in that broader sense rather than in terms of a bundle of institutions or as piecemeal substantive guarantees.