Sri Lanka’s Constitutional Reform: New Wine In Old Wineskin?

by Annahl Anbini Hoole

• The current 1978 Constitution even after the 19th Amendment, has a powerful president, making degeneration into tyranny all the easier as seen by the last ruler
• Although Mr. Pathiraja called for transparency, he also disregarded the need for foreign judges saying “we don’t need outsiders to interfere with our matters”
• Unless the voices of the minorities are heard just as loudly as those of privilege and the law is enforced, this could prove to just be an empty exercise to appease the eyes of the international community watching us

Considering the deficient and unfair system in place underscored by human-rights violations for decades, constitutional reform is necessary to safeguard the rights of all citizens. The current 1978 Constitution even after the 19th Amendment, has a powerful president, making degeneration into tyranny all the easier as seen by the last ruler. The 1947 and 1972 constitutions favored a parliamentary form of government, however the power was with the majority Singhalese who abused their power to discriminate and disenfranchise Tamils. The challenge lies in creating a constitution that addresses the needs of all Sri Lankan people. Most (according to the PRC) feel this is best done through power sharing. Zeid Ra’ad Al Hussein, the UN High Commissioner for Human Rights, felt “this process presents an opportunity to rectify structural deficiencies that contributed to past human rights violations, and reinforce guarantees of non-recurrence such as strengthening civilian oversight over the military.”

The Managers’ Forum in Nallur, Jaffna had Lal Wijenayake, Winston Pathiraja, and Yuresha Fernando speaking on Sri Lanka’s Constitutional Reform Process recently.

All three speakers emphasized that human rights be given the foremost place when writing this constitution.

 

Reform Process

Yuresha Fernando, Additional Secretary to the Constitutional Assembly, gave an overview of the reform process. In January 2016, the Cabinet of Ministers created the Public Representations Committee for Constitutional Reforms (PRC) to consult with the people regarding what they want to see in the new Constitution. PRC travelled to all 25 districts seeking submissions through public consultation. These findings are then reported to the Constitutional Assembly, Steering Committee, and the Sub-Committee.

On 09.03.2016 Parliament passed a Framework Resolution to establish an outline for the Constitutional Assembly when drafting the Constitution and set up the Steering Committee to prepare a Draft Constitutional Proposal. The Constitutional Assembly is chaired by the Speaker Karu Jayasuriya, aided by seven Deputy Chairmen. A panel of seven experts was established to advice the Constitutional Assembly, who may call upon other experts or consultants as well. The Steering Committee is chaired by Prime Minister Ranil Wickremesinghe and has 20 others.

Last November, the PRC reported its findings to the six sub-committees established by the Constitutional Assembly. These sub-committees then deliberate and recommend improvement on fundamental rights, judiciary, law and order, public finance, public services, and center-periphery relations. The Constitutional Assembly can also consult its panel of experts.

The Steering Committee compiles all this and presents an Interim Report with proposed principles for constitutional reform to the Constitutional Assembly, who may then return it to the Steering Committee with amendments. Once amendments have been made, the final report is resubmitted to the Constitutional Assembly with a proposed draft constitutional proposal and bill. If this draft is approved by two-thirds of the Constitutional Assembly, it is submitted to the Cabinet of Ministers and then Parliament and the Constitutional Assembly will be dissolved. If the draft is approved by a simple majority, it will be reconsidered in Parliament within one month. The Cabinet of Ministers presents it before Parliament as a Bill to replace the constitution. This bill then has to be passed by two-thirds majority in Parliament, and then approved by a Referendum.

 

Public Representations Committee (PRC)

Winston Pathiraja, PRC Secretary, travelled to 25 districts and met with representatives in many communities, including youth, public officers, and different public forums like this one. He stated this “constitution consists of principles with which to govern people to bring about reconciliation”. He felt the country is conducive to reconciliation and that this reform process has already started reconciliation by getting two opposing parties to work together. He stressed the importance of taking down language and religious barriers and putting a stop to corruption. He felt strongly about translating government/office documents into all three languages to promote inclusivity and transparency. Although Mr. Pathiraja called for transparency, he also disregarded the need for foreign judges saying “we don’t need outsiders to interfere with our matters”.

The PRC Chairman, Lal Wijenayake, felt the country was not prepared for radical change as it would cause instability – what was important now was democratization of state. To achieve this he recommended a constitution with human-rights foundations and national reconciliation. Both Mr. Wijenayake and Mr. Pathiraja found that the majority of Sri Lankans do not want to separate the country. Although the terms ‘unitary’ and ‘federalism’ met with opposition from Tamils and Singhalese, the idea of ‘power sharing’ within provincial councils was favored. By power sharing, he means shared sovereignty between the provinces and the central government. A similar debate in 1972 occurred when Tamil leaders were denied a federal constitution and Singhalese leaders instead chose a unitary state – this further disenfranchised minorities when it allowed Buddhism to be given foremost place in Sri Lanka.

Mr. Wijenayake said post-1956 Tamil politics mainly takes place “outside of Parliament,” and felt Tamils must be involved in government more. To rectify this, he and the PRC hope to create equality through language, equal opportunity, and education. Mr. Wijenayake felt that through this constitution we can “create a Sri Lankan identity” and that the “constitution should create space for a new Sri Lankan identity through a rights based constitution with sharing of power.”

At the Managers Forum, the three speakers were asked whether the new constitution would make any changes to Article 9 of the Constitution: giving to Buddhism the foremost place and the duty on ‘the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).’ Article 10 entitles every person ‘to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice;’ and then Article 14(1) (e) ‘to the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching.’

Mr. Wijenayake informed us that this would continue in the new constitution as he felt it protected the rights of every religion. He and Mr. Pathiraja said that various religious leaders had agreed with them on this. Even Cardinal Malcolm Ranjith who has said , “We are thankful for the President and the Prime Minister as they have vowed to give the right status and respect deserved for Buddhism”. With due respect, how can the creators of our human rights based constitution take advice from the same Cardinal who previously said “Therefore, we won’t allow western countries to bring human rights at their choice and feed us”? Participants felt that this is an insult to other religions, especially because of the word “foster” which means that the government would promote the development of Buddhism through public funds.

Ms. Fernando and Mr. Wijenayake compared this to the government funding the safekeeping of the Sinharaja Forest, a World Heritage Site. From a law stand point (and from a place of privilege) this comparison may make sense. However it left some in the room questioning why human rights advocates did not feel real minority heritages important enough to protect and foster.

Dr. Rajan Hoole asked how the speakers plan to implement and safeguard the new constitution. As there are already enough laws, he questioned the need for a new constitution or devolution and felt the weakness lies in implementation. As an example, he gave the University of Jaffna’s vice chancellor disregarding UGC advice on there being no bar to considering S. Thiyagalingam for the VC post. Due to postal delays his application was a few days late, but considering how important the post of VC is and how qualified Thiyagalingam is, the UGC had no objections. VC Arasaratnam however ignored their advice and misreported it as a prohibition to consider him. Better than constitutional reform, it is more effective to remove impunity from errant officials.

This is not the first time the VC has been accused of skirting the law and yet still remains VC without facing any repercussions. The speakers urged us to take such matters to court – though who can afford to take this to court when lawyers ask for 7 lakhs in fees and sometimes fail to even appear in court?

Participants voiced concerns that this new constitution might just be ‘giving us old toddy in a new pila’ – although flavored with human rights, the base is still disenfranchising minorities as in having a majoritarian religion.

The UN High Commissioner for Human Rights noticed this saying “I am, however, concerned that the Government has not moved fast enough with tangible measures to build confidence among victims and minority communities. There are anxieties that the full promise of governance reform, transitional justice and economic revival risks stalling or dissipating.”

This constitution could be a new beginning for Sri Lanka through the PRC-CR proposals. However, unless the voices of the minorities are heard just as loudly as those of privilege and the law is enforced, this could prove to just be an empty exercise to appease the eyes of the international community watching us. Tamils and other minorities must support this change as there is no other way, but the government must first show it is sincerely delivering on its electoral promises.