A group of University academics in Sri Lanka have submitted the following to the Government of Sri Lanka for its consideration in developing a new constitution:
Lessons from History
1. Sri Lanka has a chequered past with regard to constitution making and governance. Regrettably, both republican Constitutions in many ways have been a reflection of, and have contributed to injustice and abuse of power in our country. It is essential that we learn from our past and that we do not repeat the mistakes made before that has brought Sri Lankan society to where it is today.
2. Constitution making cannot be a top down or a horizontal exercise. Constitution making is an opportunity to experience and strengthen deliberative democracy. Constitution making must result in state reform that enables Sri Lanka to revive democracy, revive respect for human dignity and ensure the rule of law. Such an outcome can be arrived at only if the process is inclusive, participatory, transparent and dynamic.
3. It is commendable that the Government has implemented a process for public consultation. However, deliberative democracy cannot be understood in the narrow sense of providing an opportunity for interested parties to make submissions before a committee. Debate and discussion regarding possibilities and potential for state reform must be widespread and dynamic. It must be based on exposure to competing views and must nurture among Sri Lankans the willingness and ability to actively listen to each other.
4. The fundamental rights chapter of the proposed constitution must ensure that the vulnerable and the marginalised in our society are ensured dignity and equal respect for their human rights. In particular the right to equality clause should specifically prohibit discrimination based on gender, disability, rurality maternity and sexual orientation. The fundamental rights chapter must be interpreted according to Sri Lanka’s international obligations and commitments.
Discrimination based on ethnicity or gender must be prohibited in the strongest possible terms in the new constitution taking our past experiences into account. Such constitutional recognition has the potential to contribute to the urgently needed normative shift in our society as to how we think of ethnic identities and of gender. The prohibition of discrimination must be accompanied by the provision for special temporary measures (affirmative action).
The Constitution must also recognise the responsibility of the state to respect economic, social and cultural rights particularly the right to education and the right to equal access to healthcare. The right to education must include: universal access to free primary and secondary education; state funded tertiary education to persons selected on the basis of merit (and on the basis of affirmative action where relevant); and respect for academic freedom and autonomy of universities.
5. The duty of the state to prevent violations of human rights by non-state actors and the responsibility of non-state actors to respect human rights must be provided constitutional recognition. Lived experience clearly suggests that the vulnerable in Sri Lankan society including women, person with disability and children experience violence and discrimination at the hands of private individuals and institutions. Establishing independent commissions that can inquire and investigate into such human rights violations and providing constitutional recognition for such commissions is one mechanism that can be considered.
Confidence Building among Minorities
6. The process of constitution making and the substantive content of the constitution must result in the building of confidence among the minority communities in Sri Lanka. This exercise should be viewed as an opportunity to forge a new identity that is common to all regardless of their ethnicity, gender, religion, social status etc. The distinction between democracy (to be desired) and majoritarianism (to be eschewed) must be articulated. Including acknowledgements of past injustices and violence in Sri Lankan society, in the preamble of the proposed constitution is desirable in this context. Such an acknowledgement could be in relation to: injustices in state policy including legislative policy, violence both by state and non state actors, social inequalities, corruption and failures in state reform.
7. Both majoritarianism and elite power should be curbed through appropriate use or even modification of national symbols such as the national flag and national anthem. This should be based on consensus that is however shaped by statesmanship. National symbols must ensure the celebration of diversity on the basis of equality and dignity for all Peoples.
8. The power-sharing arrangement under the proposed constitution must be meaningful, viable and sustainable. The Government must mobilise Sri Lankan society around this question so that the justifications for such a mechanism is commonly made available. At this point in constitution making, Sri Lankan society must be encouraged to debate issues related to power sharing so that the issue is not hijacked by ethno-nationalists for their petty political advantage.
Independence of the Judiciary
9. The independence of the judiciary must be ensured under the proposed constitution. The independence of the judiciary cannot be understood only in terms of non-interference by the other branches of the state but also in terms of ensuring its competence, providing suitable financial remuneration including after retirement, making adequate resources available, adopting legislation to regulate contempt of court and ensuring that the most competent individuals join and/or are appointed to the judiciary.
Judicial Review of Legislation
10. Judicial review of legislation is essential for the revival of the Rule of Law in Sri Lanka. The Rule of Law has to be understood not simply as adherence to stipulated procedures or written laws, but as ensuring respect for human rights and for the spirit of the Law. Where any proposed or existing law is found to be a violation of human rights or the basic values underlying a constitutional democracy, the judiciary must have the authority to strike down such a law. This power may be exclusively vested with a Constitutional Court which would comprise competent, independent and committed individuals.
Turning Point in History
11. We sincerely hope that the ongoing attempt to develop a new constitution in Sri Lanka will be a turning point in our history. We hope it would be a moment in history that we can look back to with a sense of satisfaction. It will hopefully be described as a moment in our history that we came together to realise the dream of a more just and humane Sri Lanka.
Dr Ranil Abayasekera, Faculty of Arts, University of Peradeniya
Dr Liyanage Amarakeerthi University of Peradeniya
Prof Priyan Dias, University of Moratuwa
Prof. Dileni Gunewardena, Dept. of Economics and Statistics, University of Peradeniya
Prof Camena Guneratne, Open University of Sri Lanka
Dr Danesh Karunanayake, University of Peradeniya
Mr Nandaka Maduranga Kalugampitiya, Dept. of English, Faculty of Arts, University of Peradeniya
Senior Prof Amal Kumarage, Dept of Transport & Logistics, University of Moratuwa
Dr Shamala Kumar, University of Peradeniya
Senior Prof Neloufer de Mel, Dept of English, University of Colombo
Dr. Suresh de Mel. University of Peradeniya
Ms Sabreena Niles, Dept of English, Faculty of Arts, University of Kelaniya
Eng. SN Niles, University of Moratuwa
Dr Harshana Rambukwella, Postgraduate Institute of English, Open University of Sri Lanka
Mr Rohana Ratnayake, Open University of Sri Lanka
Dr Dinesha Samararatne, Faculty of Law, University of Colombo
Mr Athulasiri Samarakoon, Open University of Sri Lanka
Prof Gameela Samarasinghe, Dept of Sociology, University of Colombo
Dr Sumathy Sivamohan, University of Peradeniya
Ms Esther Surenthiraraj, Department of English, University of Colombo
Dr Ruvan Weerasinghe, University of Colombo
Prof Carmen Wickramagamage, Faculty of Arts, University of Peradeniya
Senior Prof Jayadeva Uyangoda, University of Colombo