The Sunday Leader

A New Sri Lankan Constitution: The Need Of The Hour

By Lionel Guruge

Debates surrounding formulating a new Sri Lankan Constitution have been held for a number of decades. There have been three Constitutions in Sri Lanka in recent history: the 1947 Soulbury Constitution of 1947, the First Republican Constitution 1972, and the Second Republican Constitution 1978; the surprising commonality of all three is that none of them were drafted with any feedback from the citizenry. Therefore, if a new Constitution is to be prepared the importance of including the ideas of the general public is imperative.

Believed to be the harbinger of independence, the Soulbury Constitution of 1947 held sway till 1972 and largely portrayed the features of a Westminster model of Government. Many believed that despite a few of its shortcomings, the Westminster system was a just method of governance and enjoyed a great degree of success during its implementation. Thus, the period of 1947-1972 was considered to be a politically sound era, when democracy was genuinely practised and politics was inclusive. The 1972 First Republican Constitution was considered the first Sri Lankan Constitution, as it severed the tie between the Crown and Sri Lanka. Under this system, the powers vested with the Parliament exceed that of the judiciary, contributions from the Tamil political parties were bypassed and religion was entrenched within the Constitution abandoning secularism, all factors that stirred much controversy in due course. One of the founding leaders of the Lanka Sama Samaja Party, Dr Colvin R. de Silva played the pivotal role in drafting this Constitution, which also awarded executive powers to the Prime Ministerial position and the cabinet, further adding to the controversy that prevailed in Sri Lanka for 6 years.

The foundation for the 1978 Constitution under which Sri Lanka is presently governed sprang from then Prime Minister J.R. Jayewardene’s resurgent belief that the answer to an effective system of governance does not lie in a Westminster model but in the establishment of an executive presidency. With this philosophy in mind and with assistance from his brother H.W Jayewardene, Q.C,  J.R Jayewardene enacted a Constitution that included executive presidencywith the help of the  5/6th majority in Parliament his government enjoyed at that time. Interestingly, it is also during this period that the second JVP insurrection (1988-89) and the events during Black July leading to full scale civil war in 1983 occurred. Since 1978 till 2015, this Constitution has prevailed as the predominant legal document for governance in Sri Lanka for 37 long years, and with recent Amendments such as the 19th and now the 20th Amendment under discussion to be included, the Constitution continues to lengthen. Dr N.M. Perera, leader of the Lanka Sama Samaja Party, recognised the potential harm of this Constitution, in particular the Executive presidency.

With the introduction of the 6th Amendment to the Constitution in 1983 and the Tamil United Liberation Front’s exit from Parliament, the most vital document for governance in Sri Lanka did more to drive a wedge between ethnic and religious groups than unite them. Surprisingly, we Sri Lankans still seem content to follow all the laws laid out by the very Constitution that has done irrevocable damage to the unity of the people, without pressing for a new Constitution altogether.

The only leader in Sri Lanka that foresaw the dangers of this document and took action to introduce a new Constitution, was former president Chandrika Kumaratunga; however, by highlighting a number of articles in the draft and deeming it to be unsatisfactory, the UNP headed by Ranil Wickremesinghe and JVP, collaborated to sabotage its enactment, and thus what could have been a new Constitution in 2000 for Sri Lanka found itself in the archives of documents that never achieved its potential.

 

What Features Must the New Constitution Encompass?

The success of the Indian Constitution drafted by Dr Ambedkar owes heavily to it being a highly inclusive document, laden with ethnic, minority, and religious considerations. By this, the Indian Constitution has served its purpose of uniting all Indians under one flag and one identity, and it has only contributed in strength and might to India’s development. Similarly, Nelson Mandela and F.W. de Klerk’s campaigns for the abolishment of apartheid and subsequently the formulation of a new Constitution was greatly to the benefit of a united South Africa as it took into account of all diverse representations. Such historic lessons must become precedent for our nation whilst preparing a new Constitution; multi-ethnic countries such as Sri Lanka will only succeed by accommodating cultural, ethnic, and religious identities, and countries such as South Africa and India are prime examples of this fact, a good example being the secular nature of the Constitution of India. Therefore, the next Constitution of Sri Lanka must include the sentiments of all minority and majority populations, and the only method by which this goal may materialise is if the general public themselves are included in the debate and are given a platform to actively participate in the formulation of the Constitution. In Sri Lanka, it is mistakenly believed that only lawyers and associated professionalscan formulate a Constitution. This is a myth. Although it is a sound practice to include experts in the field of law when drafting the Constitution, they need not take over its content. Since our independence, one burdening issue we have yet proven unsuccessful in solving has been forging a national identity; since 1948, ethnic and religious disharmony has increased, insurrections and civil wars ensued, and most citizens still live in suspicion of their Sinhala, Muslim, or Tamil neighbours. From 1948 till 2015, Sri Lanka has shed far too much blood for causes that could have easily been avoided; seen too many of its children die unnecessarily; too many mothers’ painful cries of woe echoing throughout this small island. Sri Lanka’s violent history should speak volumes of the need to urgently mend the severed ties between its people and unite all citizens under one nation. The first legal step in this regard then is to present a new Constitution, this time from the bottom up, with participation from Sri Lankan citizens, to include all diverse opinions of the country and present a Constitution worthy of its name.

In this regard, when formulating a new Constitution, a few integral points must be taken into consideration:

1.      A formation of a Constitution Compilation Committee – a committee responsible for compiling all input taken from all corners of the nation into an initial first draft for overview. This committee can include various personnel such as political representatives, artistes, legal experts, media personnel, and civil society representatives.

2.      A discussion occurring at a grassroots level with the general public as to what must be included in a Constitution, what features it must portray, its purpose, what issues it can resolve, and what relevant features of the Constitutions of other countries could possibly be borrowed for our Constitution.

3.      Following the initial discussion another discussion on the inclusion of fundamental rights, devolution of powers, the powers vested in independent commissions and the duties of the Central government, Provisional Councils, and local government institutions in the Constitution is required.

4.      Discussions should be held regarding the number of Parliament Members that should be elected and specific criteria for their selection, as well as the number of Provincial Council members and local authority members needed and the criteria for their selection must be discussed as well. Constitutional provisions should be incorporated to strengthen the Elections Commission as well as the internal democracy of political parties.

5.      There should be provisions made in the Constitution to include participatory democracy. Starting from a Divisional Secretariat level especially a grama niladhari division level, there could be citizen collectives made up of civil society representatives that could include their suggestions when formulating budgets for central, provincial, and local authority levels of governance, as well as mandate the opportunity for these citizen collectives to monitor any development taking place in their division or village, with their inputs taken into consideration. The participation of these citizen collectives in the above processes should be legalised.

6.      There must be a mechanism by which suggestions from the grassroots level reach the national level. Suggestions compiled at a grama niladari division level should be channelled to a Divisional Secretariat level, and then to District level, Provincial level, and ultimately to the national level. The compilation committee should then take all these ideas and suggestions into thorough consideration and over several months take pains to carefully draft a Constitution which must be scrutinized again by each of these levels. After another round of discussions, a final consensus on the Constitution could be reached.

7.      The media including private, public, and new media must all prioritize this Herculean task and dedicate their expertise to see this succeed in an unbiased manner. In summation, this must be taken up as a campaign of large proportions, and include a synchronized effort in order for a truly Sri Lankan Constitution to materialise.

Taking the above suggestions into consideration, the President has a considerable quota of work to accomplish before his five year tenure expires. If he manages to do so much as initiate this process, he will undoubtedly become synonymous with greatness. However, it is not to say that all the responsibility for this campaign should be shouldered by the President or the Prime Minister himself; if this is to be a Constitution that truly represents all citizens of Sri Lanka, then even past Presidents, ministers (then and now), politicians, civil society and members of civil society organisations, and the public must contribute as much time and energy as they can in order to enjoy the fruits of their labour. The time is ripe to reverse the negative image Sri Lanka has portrayed to the world; to erase the red from our ledger, so to speak. All minority and majority populations must be represented in this new Constitution, and citizens should rally as one and cast aside the narrow minded views of a few dissenters that will arise on occasions such as this to impede the success of such a venture. It is hoped that the new government that will be elected after the impending elections will seriously consider this and make it a priority for the sake of the nation. No one can shirk from this duty; we owe it to our future generations to contribute to a truly Sri Lankan Constitution. It is time to prove to ourselves that we are capable of harmonious co-existence, that we respect and celebrate our diversity, and we are a nation worthy of the title ‘Pearl of the Indian Ocean’.

- Lguruge8@Gmail.com

 

5 Comments for “A New Sri Lankan Constitution: The Need Of The Hour”

  1. Srivan

    All the constitution thus far have been top down. It is past time to do the opposite and the idea of bottom-up approach is sound however long it takes. Above all, the new constitution should be for the citizens NOT for politicians and political parties, the main bug bear of constitutions thus far.

    It is worth studying the processes obtained in other countries too. The UN too should be consulted in draft form that the provisions do not conflict with the UN Charter to which all nations are members.

    Mode of governance across the country should be necessarily highly decentralised. The Swiss model to govern different

  2. Srivan

    (contd) ethnicities and regions is well worth looking at.

  3. A person defines “Hitlerism”as whipping up race, tribe or ethnicity of a people, to hate another people, and occupy their land militarily to degrade, oppress, murder and exterminate them.

    Sri Lanka(SL) practiced “Hitlerism”, against Tamils for nearly 50 years. The purpose was to carry out Holocaust and genocide.

    The comparison below reveals the truth of it;

    1. Adolf Hitler used “Äriyan Supremacy”. The Sinhalese used “Sinhala Supremacy”.

    2. “Jews are a threat” told Hitler. The “Tamils are a threat” tell the Sinhalese, to do military occupation.

    3. SL made Tamils lose dignity and self respect by anti-Tamil attitude and violence. Hitler used the same method against the Jews to carry out holocaust.

    4. Hitler took away the freedom of Jewish people and justice was denied to them. Anti Sematic attitude amongst the Germans was encouraged and not punished. The same was done to the Tamil people in SL.

    5. Hitler told lies, cheated Jews and took them to genocidal points such as concentration camps and gas chambers. SL had barbed wire fenced detention camps and “no fire zone” to cheat Tamil people to death.

    6. SL introduced to the Sinhalese people, a school curriculum of racist ego boosting Sinhala myths, as true history, in a manner Hitler did to the Germans.

    7. Jews ran away to other countriea to escape death. Tamils fled to other countries to escape from genocide.

    Therefore, an internal inquiry by the Sinhalese, who enforced Hitlerism can never be credible.

    Prince Al Hussein, the chief of UNHRC is taking the much desired steps to bring criminals who committed war crimes and genocde to justice in SL and eradicate Hitlerism in SL and in ISIS.

  4. Asoka

    Well we should take it from the point of CBK’s attempt at formulating a Constitution in 2000, even most of the items in there are not relevant now.
    I was opposed to it then but cannot remeber exactly why but was related to territorial integrity and delegation of powers (which LTTE / India would have used adversely).
    Now is the time to reactivate.

  5. Sangaralingham

    Constitution must protect each and every citizenin person his her property freedom of moment respect who they are his culture race religion tradition without fail and see that all parts of the country receive sound education god health system the young the vey old and disabled given support and help. Corruption fraud not allowed supported by state including among elected members public servants and all those public professionally

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