Author: M.Pradeepan

Preliminary Submission by the Centre for Policy Alternatives (CPA) to the Public Representation Commission

22 January 2016, Colombo, Sri Lanka: This submission by the Centre for Policy Alternatives (CPA) outlines our general views on the nature and form of a new constitutional settlement for Sri Lanka. It focuses on the major constitutional issues that are currently the subject of public debate and which featured in the democratic decision of the people of Sri Lanka in the two historic elections of 2015 in both changing the government and mandating the current Parliament to enact a new constitution. We are prepared to submit more detailed explanations and proposals, orally or in writing, if so invited by the Public Representation Commission, the Constitutional Assembly, and/or Parliament.

Read the full text of the submission here . Download it as a PDF here .

Listen to Dr. Paikiasothy Saravanamuttu, Executive Director of CPA, present this submission to the Public Representation Commission (PRC) on 22 January 2016 here .

Listen to the audio from the audio player below.

Click to view the article

by Lionel Guruge

However, as expected with such monumental ventures, dissenters and ‘spoilers’ are not far behind in their efforts to disrupt the process. Indeed, opposition can be found in various pockets of society. At the forefront of this campaign are the religious and racial extremist groups as well as defeated political candidates that highlight their political ideologies and narrow-minded thinking by their actions and speech.

Religion is a deeply private and sensitive topic. Yet, these spoilers attempt to disassociate privacy from religion and portray religion to be at the centre of a democratic process such as constitution making. These groups prey on the sensitive nature of religion and thereby directly influence a large portion of society (especially the Sinhala Buddhist population). It must be understood that such initiatives do little to protect the sanctity of religion and more to disrupt the harmony within society so that these extremist groups may promote their own agendas. In order to counter such negative aspirations, Buddhist leaders must publish immediate statements against these initiatives. When queried about the Buddhism clause in the current constitution, the Prime Minister has declared that it will not change or be affected during the redrafting process.  Those that believe such ideologies to be true should also consider the justification behind capitalising on religion within the process of discussing the democratic, governance-related exercise that is constitution making.

The 1978 Constitution currently in practice addresses religion in Chapter Two in the following manner:

9. “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of 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 and 14 state:

10. “Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.”

14. (1) Every citizen is entitled to
(e) 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 or teaching.

As the Constitution clearly indicates, the rights of all religions in Sri Lanka are upheld as a Fundamental Right. It is important to note that the new constitution will not threaten this right in any way.

Sri Lankans are riddled with a myriad of issues that plague them on a daily basis. A new constitution might not be the solution to all these issues, but as the Supreme law of the land, it could be considered a great step forward in terms of progress. Such an opportune moment is clearly presented to us, and as civil society representatives actively invested in the constitutional process, we urge society to recognise the sensitivity of topics such as religion and to not take action to disrupt this process purely on the basis of such a sensitive topic.

With this new constitution comes the very real possibility of rearranging the structure of governance in Sri Lanka, especially in terms of abolishing executive power and devolving power in a more meaningful manner that benefits the public. It is this process that extremist groups are attempting to disrupt, and religious leaders, scholars, and politicians who truly care about the development of Sri Lanka and its residents should take an active stand against such initiatives. The process of drafting a new constitution reaches far beyond party-driven politics; it is a document with a legitimacy that will not be questioned for a long period of time, and one that will truly serve the interests of the nation. To hinder such a process due to narrow-minded, party driven political ideologies is to tamper with the lives of our children, our future generation.

Perhaps a day will come when Sri Lankan society will be open to discuss the association between religion and governance. It is the personal preference of this writer to exclude religion from the constitution entirely. Yet, this is not the time for Sri Lanka to consider such an alternative. The discussion of such a sensitive topic should be postponed for a later date; instead, the focus should be more on essential political reform processes that can be achieved through the new Constitution.

One of the main reasons issues arise within the constitution making discourse is due to ignorance with regard to constitution making. Many do not possess a broad understanding of our constitution, which is what ‘spoilers’ capitalize on. A remedy for this could be sought within the new constitution itself; the new constitution should stipulate that education on constitutional provisions should be included into the school curriculum in an incremental fashion from grade 3 to 11. Only then will citizens be molded who take a proactive stance in constitution making. Such persons would also be equipped with the knowledge to differentiate between those that aim to advance the agenda of the nation and those that aim to advance only their personal agendas.

The role of a proactive citizen does not end after providing input to the new constitution. Indeed, the constitution can only provide national-level instructions in one or two sentences. In order to strengthen these provisions and ensure that it reaches and influences the lives of citizens at a grassroots level, equally strong Acts, By Laws, and Statutes must be drafted at sub-national levels of governance. Public consultation must be mandatory during the process of drafting such legislations to ensure a truly democratic process fueled by participatory governance. Only then could a Constitution be regarded as one that serves the public.

The role of the media is severely understated during this current constitutional process. Both state and private media can go a long way in facilitating a broader discourse on the subject and reversing counter-productive attitudes. All media personnel should consider this to be a prime responsibility, and a concerted effort should be made if they wish to see a harmonious Sri Lanka.

This constitution is not for a privileged few. It is for all Sri Lankans regardless of their ethnicity, religion, gender, lifestyle choices, or personal beliefs. This is a historical moment to ensure a truly representative constitution is made for Sri Lanka. As Sri Lankans, let us not forgo this responsibility.

By N. Sarasi 

A CSO collective called the Citizens’ Initiative for Constitutional Change (CICC) organised a press conference on 12 January in Colombo, to give publicity to the process of collecting citizen input to feed into the government’s current constitution-making exercise.

Speakers at the press conference included Attorney at Law and Chairman of the Public Representation Commission, Lal Wijenayake, Centre for Policy Alternatives (CPA) Executive Director Dr. Paikiasothy Saravanamuttu, PAFFREL Executive Director Rohana Hettiarachchi, Human Rights Activist S.G.Punchihewa, Women and Media Collective Coordinator, Kumudini Samuel, Rights Now Executive Director Attorney-at-law Sudarshana Gunawardana, as well as the Transparency International Senior Manager, Shan Wijetunge. CPA Senior Researcher, in charge of its Outreach Programs, Lionel Guruge chaired the briefing.

Guruge urged the media to give maximum coverage to the process of facilitating citizen participation in constitutional reform and said it was most important that all citizens of the country, Sinhala, Tamil Muslim, young and old, and all minorities are be able to think of it as “Our Constitution.” It was important for detractors and diverse opinions to be given a voice, too, but the process should not be disturbed by them. 

Committed to constitutional reform 

CPA Executive Director Dr. Saravanamuttu said that CPA and similar organisations of the CICC had been committed to constitutional reform for over a decade, and it was now a historic and decisive moment to ensure that the country gets the constitution it deserves. Since the political developments of 2015 it remains to bridge the democratic deficit by addressing the areas that require reform, particularly abolishing the executive presidency and devolving executive power among the Cabinet and Parliament, bringing about a new electoral system, and constitutional settlement of the national question which remains at the heart of this country, as a functioning democracy, which accommodates and answers to the grievances and aspirations of all of its people. 

Dr. Saravanamuttu gave the example of the constitution making process in South Africa which was inclusive to such an extent that poor villagers were able to voice their concern about their cattle being stolen– leading to a guarantee of the right to private property for citizens, being included in the constitution. “Every citizen should be encouraged to come forward and contribute,” he stressed, adding that the purpose of the Citizens Initiative was to take this awareness as far as possible and make the case for a new constitution, as well as to educate citizens on the structure of the state, the executive and overall framework of the process so that their submissions are focused, direct and deal with the principal concerns of the country. It was important to ensure that as many people as possible participated in this exercise. “This is a chance to be a part of decision making in terms of the supreme law of the land. Proactive participation in the constitution making process will ensure that we are full-fledged citizens in a functioning democracy.” 

Specific provisions requiring strengthening

Media has at times been good at causing controversy, retorting or stirring dissent, but now it has a chance to play a vital and positive role and make a real difference in the future of the country, according to human rights activist, author and Attorney-at-Law S.G. Punchihewa who spoke about specific provisions in the Constitution that had been identified as requiring strengthening. These included the sections on human rights, the five paragraphs on fundamental rights and different aspects of the 13th Amendment. 

Punchihewa discussed the requirement to include “Right to life,” in the Constitution. Broader interpretation is required, as in India where this covers air, food, water and environment with recourse. It is important also to strengthen the Human Rights Commission by reinforcing its powers, he stressed. Language equality was another matter which needed to be unconditionally emphasised. 

Transparency International Senior Manager Shan Wijetunge opined that “this is the best opportunity, not to be missed, that we have ever had to join together and be part of this historical process, as the current government is only in power for two years. In South Africa, for example, millions of suggestions were received.” 

Wijetunge outlined four main categories of provisions that were under discussion, including the reform of the Executive Presidency, fundamental rights, power sharing, and electoral system reform, and said that they were ready to present recommendations to the government including such suggestions as: abolishing the Executive presidency, limiting the cabinet to 25 members, scientific categorisation of ministerial portfolios, having a fixed election calendar, holding LG and PC elections together to save on expenditure, setting a ceiling to the election expenditure on election campaigns.

Electoral reforms 

PAFFREL ED Rohan Hettiarachchi spoke on the much debated subject of electoral reforms, including women’s representation and stressed that a simple election system is needed which does not squander the country’s assets – approximately Rs. 4,000 million of public funds were spent on each election(by the Elections Department alone). Furthermore there should be a system of ensuring that all can vote, e.g. doctors, or prisoners, as was the case in Afghanistan where ‘mobile voting’ is available, although it cannot be said that their democracy was more advanced than in Sri Lanka. He recognised that there was a very small time period to get a lot of work done and said “we must all try our best”.

Strengthen women’s rights

Women and Media Collective Coordinator Kumudini Samuel spoke about the need to strengthen women’s rights through the constitution, and a more effective legal system, with a broader focus being placed on socio economic rights, the right to livelihood, right to housing, food, and health. She also advocated for an Independent Women’s Commission and enforcing political rights for women.

Maximum public participation

Attorney-at-Law and Chairman of the Public Representation Commission Lal Wijenayake said that CPA and a number of other CSOs have been requesting that the constitution making process is not limited to Parliament but should be with maximum public participation. 

“There are mechanisms in place but is there enough time? The people are eager and enthusiastic to engage,” he said, adding that a newspaper advertisement in three languages had been issued on 12 January to invite the participation of the people, to a large scale program from 18 -22 in Colombo at Visumpaya at 9:30 a.m., which was for the purpose of gathering public input. In the rest of the country, the District Secretariats are organising such venues, and are to give notice at least a week prior to the events, although media has a very important role to play in increasing awareness on the exercise.

He said that the questions people asked were “why do we need a (new) constitution?” and “Isn’t the existing one enough?” and he pointed out that in the last few years, people had been on their knees, and Government Servants had been tied to trees, as the existing Constitution was not able to protect them, and even six or seven years after a protracted war, it had not been able to help the people of Sri Lanka reconcile. “My duty now is to listen, rather than speak,” he said in closing. 

Nation building 

Rights Now Executive Director Sudarshana Gunewardana said that nation building usually starts after independence but the process of bringing people together as one nation has not been a success in Sri Lanka as evident from both the insurrection in the south by rural youth and the 30 year war in the north which were caused by people not feeling as though they were part of this nation. Finally it was now an opportunity to collect everyone’s views and make a completely new “agreement” that respected the needs of everyone. 

Language barriers

A media representative questioned as to how the challenge of language barriers would be overcome in this process and CPA Senior researcher Lionel Guruge assured that every measure would be taken to ensure that required translations would be provided in the field work of the Citizens Initiative, which was making arrangements to provide simplified translated primers. 

Further media questions were answered and a CPA publication titled “Why do We Need a Constitution?” was distributed to attendees. This press conference was the latest in a series of events held by CPA bringing awareness to the process of garnering citizen engagement in the current Constitution drafting process.

Citizens’ Initiative for Constitutional Change

By pooling in the resources of all organisations involved in the CICC, the Initiative aims to conduct broad scale workshops across the country to raise awareness on the governments’ proceedings with regard to the Constitution process, as well as encourage and identify recommendations of the public for the new Constitution. As the Government declared the establishment of a Public Representation Commission entrusted with the task of compiling public submissions, the CICC at its various workshops will encourage citizens to contribute to this Commission. Parallel to this Initiative, a youth campaign titled ‘My Constitution; A Youth Movement for a New Sri Lankan Constitution’ has also been launched and aims to encourage youth populations to contribute to the new Constitution process. More information about the citizen initiative is available from ciccinitiative@gmail.com or lionel@cpalanka.org.

Taken from – Daily FT e-Paper