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.