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LET US CHANGE THE MINDSET BEFORE CHANGING LAWS

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20 December 2016 12:31 am - 0     - {{hitsCtrl.values.hits}}

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A public seminar was held recently to celebrate the 68th International Human Rights Day. Titled ‘Let us change the mindset before changing laws’, the panel of speakers consisted of experts in constitutional law, human rights and women’s affairs. The speakers mainly focused on making a people’s constitution that addresses the problems they faced so there would not be a recurrence of further strife threatening national unity and reconciliation. Stressing that human rights could be safeguarded through constitutional reform, the speakers voiced their opinion on the abolition of the executive presidency, devolution and the need for a referendum to establish the new constitution. 

“The executive presidency has been an obstacle to establish democracy”

J.C. Weliamuna- Human Rights Lawyer

Stressing the importance of abolishing the executive presidency, Human Rights lawyer and former Executive Director of Transparency International Sri Lanka, J.C.Weliamuna said that power over the state and judiciary had been vested with one person or a group of people in the prevalent presidential system. Referring to the unexpected defeat of Yahya Jammeh, the dictator who ruled Gambia for 22 years he said, “These kind of experiences differ according to countries. But it’s important to draw lessons from these experiences to prevent the system from falling onto the path of dictatorship. In this respect, abolishing the executive presidency is one pre-condition.”   
He noted that there have been hopeful signs of the abolition. “The sub-committee report reflects that there is immense improvement. There is a 38-page report on the field of human rights. This report is in accordance with international standards and is something we’ve not seen in past constitutions. For instance, there are explanations as to what civil political rights and social economic politics are,” he said.   
Stating that the abolition of the executive presidency did not solve all the issues in countries, he added it would prevent power from being misused to fulfill personal aspirations. “The executive presidency has been an obstacle to establishing democracy,” he added.   
He said the discourse on human rights which was previously limited to civil societies had now become a topic of discussion within the government.   

 

 

“It’s important to move back to the parliament democracy we had before 1972”

Dr. PakiasothySaravanamuttu- Executive Director at Centre for Policy Alternatives (CPA)

“This is the second year in which we are able to celebrate International Human Rights day in different circumstances to what we have faced in the past. We mustn’t fall into the trap- and I use that word deliberately- into thinking in the same way as we did before. We need to acknowledge that change, understand that change and recognize what that change entails,” said Dr. Pakiasothy Saravanamuttu, the Executive Director at Centre for Policy Alternatives(CPA).   
Noting that the programme of the yahapalanaya government was defined by liberal civil society and was presented during a course of two and a half decades under inhospitable circumstances, he said, “It’s our programme and therefore we are challenged as to whether we have a special responsibility to ensure the programme is realised, if not in full measure, in substantive measure.”   “I don’t think we have the license or the liberty to sit on the sidelines and criticise.We have to engage in a critical and constructive engagement with the government on the basis of shared values and common objectives,” he said.   
Referring to the consequences of the executive presidency, he said, “We have come into a political culture which is fundamentally antidemocratic and fundamentally problematic in terms of the deficit in the government and especially in the emerging ethnic conflict.”   
“One of the arguments J.R. Jayawardane of the UNP made in the 1970s was that we need a strong executive to ensure uninterrupted and smooth economic development. But interestingly, after the executive presidency was set up, there was an insurgency in the South and a civil war which went on for three decades,” he said   
“If we are to move towards a constitutional architecture which meets the aspirations of all our people and addressed their grievances, we have to be able to diffuse power,” he said, adding that there should not be a single office relatively immune to checks and balances.   
“That is why it’s important to move back to the parliament democracy we had before 1972, and not after 1972,” he said, emphasizing the need to end the debate on the executive presidency which has been going on for the past three decades.   

 

 

“We have reached the utmost limit in terms of reforming the executive presidency.”

Niran Anketell- Expert in Constitutional Law 

Speaking about threats posed to the process to evolve a new constitution, Niran Anketell, Attorney-at-law and expert in constitutional law, said the primary threat was that necessary constitutional amendments could be effected without a referendum through piecemeal reform.   
He said those who questioned the need for a referendum referred to the referenda that took place during the course of 2016. This includes the referenda in the UK with Brexit, in Colombia with the peace plans and with the constitutional referendum in Italy. “They believe that referenda gives power to the racist. Therefore, the general argument is that Sri Lanka should not have a referendum and we should attempt to make constitutional reform through piecemeal legislation and in a way that does not attract the referendum provisions in the constitution,” he added.   
Raising the question as to what can and cannot be done with a referendum, he said, “There are two significant cases in the Supreme Court that answer this question decisively. The first and the most recent is the 19th amendment determination. When the 19th amendment was brought to parliament, the Supreme Court weighed in the question. The Supreme Court found that certain clauses in the 19th amendment require a referendum and they decided certain clauses did not. It’s fairly clear that it would be very difficult to further reduce the powers of the presidency without a referendum. Any further attempt to dilute presidential powers, any further attempt to set Sri Lanka on a trajectory back to the pre 1972 constitutional structure would in all likelihood require a referendum.”   

 

 

“We need a constitution that dispels gender based discrimination.”   

Sumika Perera- Women’s Rights Activist

“We need a constitution that dispels gender-based discrimination. The existing constitution states there should be no discrimination based on gender. But practically speaking, this does not happen. Women are constantly harassed,” said Sumika Perera, a women’s rights activist who functions as the coordinator of the Women’s Resource Centre.   
“Women and the disabled have been included in the same clause in the constitution. There can be groups which have special needs. But the very fact that women have been categorized in this manner reflects the place of a woman,” she added.   
Stating that women were permitted to suggest proposals with regard to the new constitution she added that along with the ‘Women and Media collective’ she had visited 19 districts and obtained opinions from 22 groups of women. “The Sinhalese, Tamil, and Muslim women and those of other races joined this endeavour. At the end, we gave our recommendations to the committee in writing.”   
She added that women from all districts unanimously voiced assent for a new constitution that better suited the needs of the future.   
She recollected an instance when a woman from Muthur expressed gratitude for being able to suggest a proposal. “She said she felt she was a citizen of our country. She said that even if her recommendation is not carried out the chance of being able to propose her suggestion was itself a victory.”   
She said that though certain rights had been established constitutionally, as they are not executed, there was a need for a special platform. “Any woman has the right to join politics. But if there are no special opportunities women can’t receive equal treatment. Though Sri Lanka produced the world’s first prime minister, currently the representation of women in the parliament is not even 6%. But we have been able to achieve a 25% quota for local government which is gratifying.”    She further added that religious extremist groups tried to control not only women’s opinions and political inclinations, but also their body. She noted that there was a challenge as to how women’s rights which include the right to a livelihood, food safety, social protection, to a house, and to land could be ensured.  “There was a thirty year war In the North. Women suffered immensely. They had to carry on their family and societal roles with arduous difficulties despite the absence of their husbands and children who had gone to join warring factions,” she said emphasizing the need for a safe society where people were not burdened by the fear of disappearances or conflict.   

 


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