“The greatest threat to our Constitution is our own ignorance of it.”
- Jacob F. Roecker
Change: A word that has reverberated around society since the beginning of this year. Not many were sure what exactly this “change” encompassed nor what exactly was supposed to change but nevertheless they wanted it and this is claimed to have been reflected on the morning of the January 9, 2015. A principal method of bringing about this change is via the governance of the country and this in turn is best brought about through a clear and effective Constitution which is tasked with setting out the basic structure of governance which reflect the freedoms and rights of the people. A mere rulebook not reflecting these needs that are void of mechanisms of enforcement however is insufficient.
"The Centre for Policy Alternatives’ view is that for a change to take place it not only needs to come from the grass-roots levels but it also needs to be enforced from the “canopy.” This was the view expressed by many at an event held recently entitled, ‘Civil Society Dialogue on Public Participation in Constitution Making’. "
“Our goal is to get civil society involved in the process of formulating a new Constitution,” said Mr. Lionel Guruge, Unit Coordinator of the Outreach Unit of the CPA.
The first step in this process will be direct communication with the citizen body through district level forums. A report will then be collected from each province and this will lead to civil society as a whole getting together at a national level.He reminded everyone that “This is a golden opportunity and everyone’s views are important and needed to solve the current problems.”
According to Mr. Guruge the problems with the 1972 and1978 Constitutions were that they were drawn up without the input of the general public and therefore not only did the public not have any say in how they were to be governed, their needs were also not effectively addressed as well. These constitutions were also formulated in English which was then translated into Sinhala and Tamil by lawyers. An example of a practical problem that arises due to this process of translation is that it causes delays and as a result there were still 217 acts that need to be translated into Sinhala and Tamil.
Mr. Guruge added that in other countries, awareness and education about the constitution starts from the school itself whereas in Sri Lanka the first contact with the document that protects our rights, freedoms and liberties is if a student pursues Political Science as a subject. This is a problem in itself, he said, since people need to know what’s in the constitution to ensure that their rights are upheld and to forget differences.
He concluded by adding that the CPA will merely be playing a facilitators role in this process and stressed the need to utilise traditions and concepts unique to Sri Lanka in this formulation
Citizens cannot continue to be bystanders
- Dr. Paikiasothy Saravanamuttu
Dr.Paikiasothy Saravanamuttu explained that the CPA’s stand on this was that civil participation was paramount for development. The reason for this was that the agenda of the current government reflected “demands, arguments and ideas put forward by civil society over the past few years.”
“What needs to be remembered however is that the citizen body elected politicians into power and it was political parties who picked them up thereafter and therefore it was the responsibility of civil society to formulate the law of the land.”
He claimed that the January elections were the“first time in a long time that we were treated as citizens” and he appealed to the people to ensure the setting up of a new political culture where one’s contribution to political culture was a necessity.
According to the doctor the citizen body could not continue to be bystanders in the writing of the story of their own country as the biggest “stench” in democracy was the lack of interest on the part of the citizen.
He agreed with Mr. Lionel Guruge on the fact that in the two home grown constitutions of the country, the level of public participation in their formulation was insufficient. This deficit led to the constitution being changed as was the 1972 one in 1978. The lack of public participation could lead to the problem of the very thing that is supposed to protect the people not being understood by those very people it was supposed to protect.
Furthermore the formulation process is not just meant for lawyers but for citizens as well. Dr. Saravanamuttu suggested that we examine the South African Constitution making process as an example. Here, in addition to a fair number of submissions been given in different languages, one example of what was being asked was for the Constitution to do something about cats being stolen. The lesson to be learnt from this example is that the government understood this to be an unarticulated demand for the protection of public property and reinforced this need through the constitution. The lack of knowledge and expertise didn’t hinder the Constitution making process.
“There is no requirement for complexities since one naturally understands what one needs, but together with that we need to have abroad vision of what Sri Lanka wants and use this as an opportunity to rebuild the country” said Dr. Saravanamuttu.
The need has arisen for a new Constitution
- S.G. Punchihewa
Mr. S.G. Punchihewa, Attorney-at-Law, started off by highlighting the fact that the 1947 Constitution, which was the brain child of Sir Ivor Jennings, had no Sri Lankan contribution and the general public came to know of it only when it was formulated in English. In 1972 however the idea of thinking nationally was beginning to emerge as Sri Lanka had achieved constitutional freedom from the United Kingdom. This time around the republican concept was the basis of the Constitution. There were even two cases regarding Sri Lankan sovereignty that were heard of before the Privy Council. The 18 Amendments that followed ensured public participation, but it was limited to lawyers. The passing of the 19th amendment was a relative change, since a larger group of people had an understanding about it, but in Sri Lanka a persisting problem is that there was almost no public dialogue on the formulation of the constitution.
He further stated that the Constitution shouldn’t be confined to just part of a society. This was seen in the 1972 Constitution recognising Sinhalese as a state language and this was one of the many causes of the intra-state war that Sri Lanka faced. It should be acceptable to all, with no discrimination of a particular group and no religion given prominence.
The laws governing the lives of citizens should be in both Sinhala and Tamil. A problem faced by the translation process of the laws of the country being given up was that people were distancing themselves from the law itself. He cited an example of the LLRC report, which was translated into Sinhala and Tamil only after several months.
“This attitude has continued into the formulation of laws” he said.
He also expressed his views on section 157 of the Constitution. This section protects the investments of foreign corporations by foreign agreements being considered as one of the laws of the country. Mr Punchihewa stated that the sovereignty of Sri Lanka has been betrayed by this section of the Constitution and questioned as to whose interests were actually being protected as there was nothing to protect the workers in it.
Views of the audience
After these statements the floor was opened for the audience to voice their opinion and some pertinent questions and issues were raised by several persons present. Former Auditor General Sarath Mayadunne highlighted section 157 as a defect of the 1978 Constitution. This section was passed by a 2/3rd majority in Parliament. However he claimed that the problem was that Sri Lanka had signed several agreements without satisfying this requirement. This poses a problem to the country since the basic objective was to prevent the country from entering into unwanted agreements.
The 19th amendment had many positive features but since the citizenry didn’t voice their opinions clearly and effectively this led to it being “distorted by Parliament.” Furthermore the public was not adequately enlightened on the 20th amendment on electoral reforms, which led to the electorate being alienated. He also stated that when half the Members of Parliament were chosen by the party the chance for voters to use their discretion when choosing their representatives was limited.
A criticism he levelled against the initiative was that instead of limiting it to merely the individual, the involvement of the educational sector and professional organisations, in addition to the civil sector, was essential to ensure more policy centred opinions to come through.
Mr.Guruge replied to this by stating that this forum was merely an initial discussion on the subject,and that they would need to include more groups in the future, thereby starting a network. He also said that they were planning on getting civil society involved in the discussions by March or April next year .
Dr.Jayampathy Wickramaratne, who was in the audience, highlighted the fact that there was already a committee in Parliament looking into this issue and there were three options that could be pursued. The first is a Parliamentary Select Committee (PSC). However the problem posed by such a committee is that it was not transparent enough. The second option was for Parliament to convert into a Constitutional Council to prepare a draft on the Constitution. The third was for Parliament to pass proposals and get the MP’s opinions on what should be included after which a draft would be drawn up to be passed by a 2/3rd majority.
A question was raised as to how cooperative the Government would be with this initiative and a concern was that the process should not be hurriedly passed as was seen with the passing of the 19th and 20th Amendments. Furthermore, it was pointed out that there was a duty on the part of the government to educate the citizenry if they were to get involved in formulating the constitution.
One speaker from the audience gave an example of the stone quarries in Raththota, which had been constructed for purely an economic benefit. In this case no consideration had been given to the community that was living in the vicinity, which had led to several families being affected.
Another defect of the ’78 constitution that was highlighted at the event, was that it didn’t provide solutions for any of the national issues the country faced but rather focussed primarily on development. It was also claimed that there was a gap in the constitution in terms of distributing resources amongst the community.
A member of the audience stressed on the fact that the values of future generations needed to be incorporated into the constitution making process. Furthermore to get the best Constitution possible the idea itself should be honoured irrespective of where the idea comes from and this included the constitution reflecting ideas that were not necessarily Sinhala or Tamil.
The Dailymirror had a few questions with regard to the process and we contacted Mr. Lionel Guruge to get answers to these queries.
QWhat is the exact level of government cooperation that this initiative is getting?
This project was independent and they hadn’t even spoken to the government about anything that was discussed as yet. This was merely to reflect the voice of the citizenry in demanding that the government make good on its promises. He felt that this would help the constitutional process since by the time the committees are appointed by the government the views of society would be ready to be put into policy. He mentioned however that the President was aware of the initiative and has “given it his blessing.”
QHow theoretically commendable would it be to take out sections that involve a particular religion?
This question was asked due to the fact that religion in Sri Lanka is, more often than not, combined with a particular race. The benefit of taking out such sections therefore must be looked at in the light of the fact that the religion in question is followed by the majority of the country. However Mr. Guruge, while accepting the concerns raised, replied that the way to combat any problems that may arise was with the involvement of religious leaders. The committee had spoken with the Mahanayaka Theras. “The clergies of all the religions should take the leadership in order to quell any racial or religious tension that may arise.” The best that can be done is to have a thorough discussion about these issues in order to come up with the best possible solution, he said.
QThere is a limit to what a constitution can achieve and a good example of this can be seen with the recent problems that South Africa was facing where even though legal status is given to a set of societies they still feel discriminated against.
The best (and often only) way to tackle this is through education.
As was mentioned at the discussion on the 13th Amendment to the Constitution, citizens of Sri Lanka come into contact with the constitution only at a later stage of life, if at all. According to Guruge the best way to change ideological differences is to provide an exposure to the ideals and values that the country is striving to protect at an early age. This way the process of growing up is combined with not only verbs, sums and geographical locations, but rights, duties and freedoms as well. He gave an example of the severity of the problem by saying that on a recent visit to Jaffna only three individuals had even seen the constitution.
Principally sound ideas are good. A touch of practicality however makes such an idea all the more effective. As commendable and necessary as this initiative of the CPA is, a high degree of attention has to be given to all practical aspects, from public awareness of the project to the actual formulation of the new Constitution. Formulation however is not the end of the road. A country can have the most elaborate constitution but if proper mechanisms of checks and balances are not in place a mere set of rules and beliefs is all that it really is. Furthermore the concept of positive peace is one that needs bold highlighting in a post-war country.
Our biggest weakness as a nation is our tendency to be content. At a stage where peace is merely defined as the absence of war or violence and this mere cursory glance over the state of affairs allows the need for an active protection of rights to fall through the cracks. On the other hand even though we may understand a lack of an active facilitation of rights and see the gaps in the system we may not feel empowered enough to do anything about it. Either way we need to keep in mind that if we don’t get involved we have no right to complain.
One issue that Janith saw with the ’78 constitution was the amount of power that it vested in the Executive. This would be acceptable in a situation where there was a certain checking mechanism in place but since such a measure wasn’t there in the constitution, he felt that this could prove to be dangerous since a single person is entrusted with immense power. In addition Article 35 gives immunity to the President during his tenure. This can be desirable on the one hand since it prevents frivolous accusation being levelled against the Executive. However the constitution hasn’t created a method to scrutinize the decisions made. A specific body is sufficient to carry out this role, he added, not necessarily the judiciary.
He also felt that the office of the President being above everyone else contradicts the Rule of Law that Sri Lanka strives to uphold. This does not mean that his powers should be taken away but merely that a checking mechanism should be put in place. He gave an example for this in light of the recent issue with regards to the National List. While the Election Commissioner stated that candidates who lost the general election cannot be nominated through national list this time around, a few instances of this occurred. Another example was the controversial impeachment of the Chief Justice. This highlights the need for checks and balances to be put in place.
Furthermore by the Judiciary not being able to review the validity of an Act, since the ‘78 constitution has no provision to disclose how a Bill has been passed, the public doesn’t know if the act had passed through the proper procedures. This highlights the need for the Freedom of Information Act to be passed as soon as possible.
Another defect he saw was article 107 whereby it was possible for the office of the President to appoint higher governmental positions. The alternative of this should be to have an Independent Commission that appoints candidates to these posts so as to avoid any bias to creep into these appointments.
Another problem he saw was the current Electoral system. By the constitution allowing the Proportional System the whole district gets represented by a certain mass of people and through this every seat is not represented. Furthermore the preferential system allows politicians to go to Parliament merely through investing substantial amounts on election propaganda without interacting with the people. Whereas by the method of simple majority “if he loses, he loses.” In his opinion until this element was changed nothing would change.