20 November, 2018

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Sri Lanka’s Constitutional Reform: New Wine In Old Wineskin?

By Annahl Anbini Hoole

Annahl Anbini Hoole, MD

The Managers’ Forum in Nallur, Jaffna had Lal Wijenayake, Winston Pathiraja, and Yuresha Fernando speaking on Sri Lanka’s Constitutional Reform Process on 23.04.2017.  Considering the deficient and unfair system in place underscored by human-rights violations for decades, constitutional reform is necessary to safeguard the rights of all citizens. The current 1978 Constitution even after the 19th amendment, has a powerful president, making degeneration into tyranny all the easier as seen by the last ruler. The 1947 and 1972 constitutions favored a parliamentary form of government, however the power was with the majority Singhalese who abused their power to discriminate and disenfranchise Tamils.  The challenge lies in creating a constitution that addresses the needs of all Sri Lankan people. Most (according to the PRC) feel this is best done through power sharing. Zeid Ra’ad Al Hussein, the UN High Commissioner for Human Rights, felt “this process presents an opportunity to rectify structural deficiencies that contributed to past human rights violations, and reinforce guarantees of non-recurrence such as strengthening civilian oversight over the military.” All three speakers emphasized that human rights be given the foremost place when writing this constitution.

Reform Process:

Yuresha Fernando, Additional Secretary to the Constitutional Assembly, gave an overview of the reform process. In January 2016, the Cabinet of Ministers created the Public Representations Committee for Constitutional Reforms (PRC) to consult with the people regarding what they want to see in the new Constitution. PRC travelled to all 25 districts seeking submissions through public consultation. These findings are then reported to the Constitutional Assembly, Steering Committee, and the Sub-Committee.

Yuresha Fernando, Lal Wijenayake and Winston Pathiraja

On 09.03.2016 Parliament passed a Framework Resolution to establish an outline for the Constitutional Assembly when drafting the Constitution and set up the Steering Committee to prepare a Draft Constitutional Proposal. The Constitutional Assembly is chaired by the Speaker Karu Jayasuriya, aided by seven Deputy Chairmen. A panel of seven experts was established to advice the Constitutional Assembly, who may call upon other experts or consultants as well. The Steering Committee is chaired by Prime Minister Ranil Wickremesinghe and has 20 others.

Last November, the PRC reported its findings to the six sub-committees established by the Constitutional Assembly. These sub-committees then deliberate and recommend improvement on fundamental rights, judiciary, law and order, public finance, public services, and center-periphery relations. The Constitutional Assembly can also consult its panel of experts.

The Steering Committee compiles all this and presents an Interim Report with proposed principles for constitutional reform to the Constitutional Assembly, who may then return it to the Steering Committee with amendments. Once amendments have been made, the final report is resubmitted to the Constitutional Assembly with a proposed draft constitutional proposal and bill. If this draft is approved by two-thirds of the Constitutional Assembly, it is submitted to the Cabinet of Ministers and then Parliament and the Constitutional Assembly will be dissolved. If the draft is approved by a simple majority, it will be reconsidered in Parliament within one month. The Cabinet of Ministers presents it before Parliament as a Bill to replace the constitution. This bill then has to be passed by two-thirds majority in Parliament, and then approved by a Referendum.

PRC:

Winston Pathiraja, PRC Secretary, travelled to 25 districts and met with representatives in many communities, including youth, public officers, and different public forums like this one. He stated this “constitution consists of principles with which to govern people to bring about reconciliation”. He felt the country is conducive to reconciliation and that this reform process has already started reconciliation by getting two opposing parties to work together. He stressed the importance of taking down language and religious barriers and putting a stop to corruption. He felt strongly about translating government/office documents into all three languages to promote inclusivity and transparency. Although Mr. Pathiraja called for transparency, he also disregarded the need for foreign judges saying “we don’t need outsiders to interfere with our matters”.

The PRC Chairman, Lal Wijenayake, felt the country was not prepared for radical change as it would cause instability – what was important now was democratization of state. To achieve this he recommended a constitution with human-rights foundations and national reconciliation.  Both Mr. Wijenayake and Mr. Pathiraja found that the majority of Sri Lankans do not want to separate the country. Although the terms “unitary” and “federalism” met with opposition from Tamils and Singhalese, the idea of “power sharing” within provincial councils was favored. By power sharing, he means shared sovereignty between the provinces and the central government. A similar debate in 1972 occurred when Tamil leaders were denied a federal constitution and Singhalese leaders instead chose a unitary state – this further disenfranchised minorities when it allowed Buddhism to be given foremost place in Sri Lanka.

Mr. Wijenayake said post-1956 Tamil politics mainly takes place “outside of Parliament,” and felt Tamils must be involved in government more. To rectify this, he and the PRC hope to create equality through language, equal opportunity, and education. Mr. Wijenayake felt that through this constitution we can “create a Sri Lankan identity” and that the “constitution should create space for a new Sri Lankan identity through a rights based constitution with sharing of power.”

At the Managers Forum, the 3 speakers were asked whether the new constitution would make any changes to Article 9 of the Constitution: giving  to Buddhism the foremost place and the duty on “the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).” Article 10 entitles every person “to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice;” and then Article 14(1) (e) “to the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching.”

Mr. Wijenayake informed us that this would continue in the new constitution as he felt it protected the rights of every religion. He and Mr. Pathiraja said that various religious leaders had agreed with them on this. Even Cardinal Malcolm Ranjith who has said , “We are thankful for the President and the Prime Minister as they have vowed to give the right status and respect deserved for Buddhism”.  With due respect, how can the creators of our human rights based constitution take advice from the same Cardinal who previously said “Therefore, we won’t allow western countries to bring human rights at their choice and feed us”? Participants felt that this is an insult to other religions, especially because of the word “foster” which means that the government would promote the development of Buddhism through public funds. Ms. Fernando and Mr. Wijenayake compared this to the government funding the safekeeping of the Sinharaja Forest, a World Heritage Site. From a law stand point (and from a place of privilege) this comparison may make sense. However it left some in the room questioning why human rights advocates did not feel real minority heritages important enough to protect and foster.

Dr. Rajan Hoole asked how the speakers plan to implement and safeguard the new constitution. As there are already enough laws, he questioned the need for a new constitution or devolution and felt the weakness lies in implementation. As an example, he gave the University of Jaffna’s vice chancellor disregarding UGC advice on there being no bar to considering S. Thiyagalingam for the VC post. Due to postal delays his application was a few days late, but considering how important the post of VC is and how qualified Thiyagalingam is, the UGC had no objections.  VC Arasaratnam however ignored their advice and misreported it as a prohibition to consider him.  Better than constitutional reform, it is more effective to remove impunity from errant officials. This is not the first time the VC has been accused of skirting the law and yet still remains VC without facing any repercussions. The speakers urged us to take such matters to court – though who can afford to take this to court when lawyers ask for 7 lakhs in fees and sometimes fail to even appear in court?

Participants voiced concerns that this new constitution might just be “giving us old toddy in a new pila” – although flavored with human rights, the base is still disenfranchising minorities as in having a majoritarian religion.

The UN High Commissioner for Human Rights noticed this saying “I am, however, concerned that the Government has not moved fast enough with tangible measures to build confidence among victims and minority communities. There are anxieties that the full promise of governance reform, transitional justice and economic revival risks stalling or dissipating.”

This constitution could be a new beginning for Sri Lanka through the PRC-CR proposals. However, unless the voices of the minorities are heard just as loudly as those of privilege and the law is enforced, this could prove to just be an empty exercise to appease the eyes of the international community watching us.  Tamils and other minorities must support this change as there is no other way, but the government must first show it is sincerely delivering on its electoral promises.

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Latest comments

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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

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    Annahl Anbini Hoole, MD

    RE:Sri Lanka’s Constitutional Reform: New Wine In Old Wineskin?

    (299 Words).

    Yes. The old Wineskin.

    The old Wineskin is contaminated with bad bacteria of racism, Sinhala “Buddhism”, Buddhist Castism, Sinhala only, Hinduism, Hindu Castism, Ethic supremacy and Separatism, etc..

    A very good anti-bacterial agent or agents are needed for decontamination.

    What is the best anti-bacterial agent? This anti-bacterial called the F agent was invented by the USA around 1791, called the First Amendment.

    The First Amendment (1791) prohibits Congress from obstructing the exercise of certain individual freedoms: freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and right to petition. Its Free Exercise Clause guarantees a person’s right to hold whatever religious beliefs he or she wants, and to freely exercise that belief, and its Establishment Clause prevents the federal government from creating an official national church or favoring one set of religious beliefs over another. The amendment guarantees an individual’s right to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas, even unpopular ones. It also guarantees an individual’s right to physically gather or associate with others in groups for economic, political or religious purposes. Additionally, it guarantees an individual’s right to petition the government for a redress of grievances.

    Will the Paras who are illegally occupying the Land of Native Veddah Aethho, make use of the USA Invention of 1791, called the First Amendment?

    Mitochondrial DNA history of Sri Lankan ethnic people:

    Through a comparison with the mtDNA HVS-1 and part of HVS-2 of Indian database, both Tamils and Sinhalese clusters were affiliated with Indian subcontinent populations than Vedda people who are believed to be the native population of the island of Sri Lanka.

    http://www.nature.com/jhg/journal/v59/n1/full/jhg2013112a.html

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    “However, unless the voices of the minorities are heard just as loudly as those of privilege and the law is enforced, this could prove to just be an empty exercise to appease the eyes of the international community watching us.”

    Unless the voices of the majority (low caste Tamils) in the minority (Tamils) are heard just as loudly as those of privilege (High Caste Wellala Tamils) and the law is enforced, this could prove to be an empty exercise. Can the new constitution ensure that the human rights of the low caste Tamils are protected?

    Power sharing may be good but power sharing with whom? With the high caste Wellala Tamils in the north? Under privileged low caste Tamils do not want land and police powers to be given to Northern Provincial Council controlled by high caste Wellala Tamils. According to my understanding the Sub-committee on Power Sharing has ignored the voice of the underprivileged group and recommended to give land and police powers to Provincial Councils.

    Ex-LTTE cadres working in farms managed by Army and ex-women cadres working in pre-schools managed by Civil Security Department in the North have handed over a petition to the District Secretary of Kilinochchi requesting not to hand over the Army managed agricultural farms and the pre-schools to the NPC because they fear that NPC will mismanage these enterprises and they might lose their jobs.

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      Eagle Eye……Tamils ,Tamils,Tamils. …. Tamils are only the people to Live In this Country ..WhereAs These People who Now Called Tamils are really the Malabar people brought into this Island Nation Of Sinhale(Sri Lanka) By the Dutch in the 16th Century……..It was noted in a recent foreign news line up that for the Tamils ENOUGH IS NOT ENOUGH……What are these people asking for …..We see only one thing …They Are Asking For a Another War?WHAT HAS To BE NOTED IS THAT THERE HAD BEEN SHEER VIOLATION OF THE RIGHTS OF THE SINHALESE PEOPLE….FROM THE BRITISH PERIOD ITSELF…..ALL THESE HAS TO BE MET BEFORE HAND BY A NEW CONSTITUTION BEFORE ANY THING

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    The present constitution is soured by the inclusion of a preferred religion. Buddhism is established well enough not to need a statutory godparent. The onus is for the Mahanayakes to come out and take responsibility for safeguarding Buddhism. The constitution should simply enshrine the freedom and right for all citizens to be able to practice their religious beliefs without led or hindrance.

    A properly drawn constitution should apply to every citizen, and no group, ethnic or religious, needing special rights.

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    The rejection of the application of Prof:Sam Thiagalingam SHOULD be contested in court.There is already a precedent in a judgement of the Supreme Court many years ago on the Postal Rule.Besides,even the UGC,APPARENTLY had no objection for the inclusion of the Application of Prof:S.T.It is clear that EX:VC Arasaratnam has been high handed in this whole saga helped by one or two council members who are known for their devious ways.

    As for the cost of the litigation,if there is a WILL there will be a WAY.

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    “A little now, more late” was the message given by S.J.V Chelvanayagaam to his followers.

    Why not take it seriously,

    Being minorities we have to be eternally watchful

    But let us look at past Sri Lankan history?

    Take the citizenship Acts of 1947-1949?

    What is the present scenario? How many upcountry Tamils now have their votes, their representatives in Parliament and the Provincial Councils?

    They have ministers in the Provincial Councils and there are lot of improvement in housing education and employment among the upcountry Tamils.

    What about the Sinhala as the sole Official Language. Now Tamil also is an official Language and the 16th Amendment virtually had resolved the language issue for the satisfaction of all concerned.

    The proposed constitution will definitely be much more progressive and will have constitutional safeguards.

    Look at power sharing? How was 13th Amendment was introduced among oppositions from SLFP and JVP and a substantial section of UNP?

    The UNP members in 1987 were kept in a hotel and were forced to vote for it.

    What is the present situation?Not a single political party including Maha Sanga is opposed to it and the new constitution will be an improvement, just read the Sub- committee report on Center- periphery relations.

    Still we have a long way to go, but it is not the sme wine in the old bottle.

    The saying of Chelvanayagam is showing results, Do not be pessimistic,
    Be optimistic and do not give up the struggle

    We, as citizens are equal in all respects, we have faith in our fellow citizens, need not beg for our rights from anybody else, our rights are inherent and we are the masters and jointly with other citizens build up a better Sri Lanka and move towards the ideal little by little..

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    @S.Krishnananthan

    What has the representatives done to upcounrtry Tamils? Furthermore even today those voters are acting like they are Indians. They don’t have the Sri Lankan identity. It was a mistake to grant them full citizenship without educating them about our country and it’s history.

    Tamils accepted English as the sole national language when there was “Sudda” fellow. Not one Tamil leader came forward to put forth their concerns about language barrier then. But suddenly when Sinhala is declared national language according to the traditions all the hell loose broke in the Tamil speaking community. Isn’t that hypocrisy?

    Further more if the 16th amendment has solve the issue of the language to the satisfaction of all the concerned, why do Tamil people need a federal solution?

    You seems to praise the establishment of the Provincial Councils. But just tell me what kind of service does it render to the general public exclusively which renders it’s existence a worthy one.

    Finally I just have to ask you why Sri Lanka needs a brand new constitution. Can’t we just amend the present constitution for it’s ill givings just as India has amended it’s constitution 100 times. Won’t it be saving valuable time and tax payers money?

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    Yuresha Fernando, Additional Secretary to the Constitutional Assembly, says that the findings of the PRC are then reported to the Constitutional Assembly, Steering Committee, and the Sub-Committee.

    Can she pl. tell us what was the process of this reporting?

    Why hasn’t been the PRC report tabled in the Parliament yet?

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    All Here Are Talking About A New Constitution,,,But How Many Of You Are Aware Of The Violations Made To The Rights Of The Sinhalese People from The Udarata GivisumA By The British….After The British Rule this country taken over by a group of KALU SUDDHAS who upto now taking this country from down to worse……The governance of this county Island Nation Of Sinhale was in the hands of Sinhalese Kings….Before Everything ,We Should Get Back The Name Of Our Country As SINHALE which was there when we handed over our country to the British under the Royal Sinhale Lion Flag.All these communities was living in harmony with the Sinhalese people (The Name Of this country was changed from Sinhale To Sri Lanka By that Mrs.Bandaranaike in the Year 1972 constitution Taking the Sri Lanka Freedom Party Name..What a god damn thing to do violation of our rights) as Such…………It would be of no use to discuss about new constitution without doing the changes to the name of our coutry and flag to get the original name ..another blunder done Is What That Idiot Muslim Extremist Badurdeen Muhamood Took away the History From the School Syllabus(Now of Course It Is clearly Seen That This Muslim Extremist man Has Taken out from the school Syllabus is to give a lead to a Future Muslim invasion of our Country) ,,….People does not know anything and without knowing people are talking……….If It Is A New Constitution To Talk With Before Everything you should safe guard The Rights Of The Sinhalese People which had been let down very badly by changing the Name Of The Country SINHALE and the Royal Sinhale Lion Flag ……Just Like In India you get Indians…In France you Have the French ,,,In Russia the Russians ….In America the Americans ……….As Such …….In Sinhale there will be all Sinhalese ………Sinhalese -Buddhists…Sinhalese -Roman Catholics or Christians…Sinhalese-Islamists…Sinhalese-Hindus…That Is Where You Call One Country One People

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    IT is an english speaking american, desecnding from Tamil speaking parents, who will never choose to live in Sinhale talking about minority.

    She never lived among sinhala people and she does not understand how our religion and culture is intertwined.

    It is simply 2 billion Catholics/cheistians fighting to over power 17 million million in Sri lanka and 300 million in Asia.

    Why don’t you go and talk about Latino rights, Black american rights etfc., in your home countries.

    Don’t be a bully.

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      If you disrobe and come out of the closest you will be less frustrated. Dont be a bully here.

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    Krishnananthan

    Don’t you know SJV betrayed up country Tamils by condoning the passing of Indo Ceylon agreement implementation bill by the parliament in 1967 whereby it became an Act. Over five hundred thousand Tamils were removed from their birth place of Srilanka under this Act. Had they remained in Srilanka their position would have been far better than now. SJV was expecting District Councils in return of agreeing to the expulsion of those Tamils. What happened in the end.? A little now , more late.? Yes he betrayed Tamils of North &East too by saying ” Party for Tamil state in Ceylon” ( Ilankai Tamil arasuk Kadchi) Did he form his Tamil state as promised?

    In comparison with Suntharalingam and GG Ponnampalam, SJV was the worst betrayer of Tamils.

    I hear Mano Ganesan was giving a memorial lecture in London. How could he do it having known SJV’s deplorable record on up country Tamils issue? Will he explain?

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    What Are These Mad People Going And Discussing Constitutional Reforms In Nallur…We saw how it was discussed there for the last 30 or 40 years……All people In this country have all common issues…only the stinking politicos have issues that have to be sorted out………Sinhalese Politicians have the Problem Of How To Market the Resources of Country to Live Luxorious life for their generations betraying their mother land..They do not care who they are dealing with …….their fundings were in millions….from foreign sources….still for all they are taxing the common mans pocket for luxory…..The Tamil Politicians Have The Problem How To Divide A Piece of the Country according to The LTTE agenda ,How To Keep alive the Die AAS poras traitor network abroad without getting them returned here so that their income is guaranteed for life and they are not thinking of the mother land here as they are well off to create mother lands in foreign lands…..And the Muslim Politicos are high around the sinhalese stinking corrupted politicos doing their usual round ups getting their nummber in the parliament doubled destroying the forest reserves and national heritage sites,grabbing the lands,helping their people to produce more babies for their future muslim invasion and making new cities and massacring the DOGS weakening the security of the country to get their kuddu transportation strengthen for them to make a SAHARA out of this country for the Future IsIs operations and they do not care too hoots for their mother land as They have taken the SAHARA where ever it is their mother land…..AND AS SUCH WE SEE THAT TO GET ALL INTO A LEGAL FORMAT THE NEW CONSTITUTION COULD HELP …..But what would be the plight of the comman man who have been born and bred here can they leave their mother land …..They Do not have majority or minority issues all comman issues to be solved ……a problem what have to be solved right through to live a life in a just society with a solid income to live happily ..after a brutal dark period people were breathing fresh air….and suddenly there befell a Tycoon among them as YAMAPALANAYA …so the story goes as such …lets wait and see….but Yamapalaya should understand that peoples voices are greater than theirs…if not history will solve their issues

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    Good on on you! Old and stale wine i shiny new bottles that the Colombo freeloaders enjoy by the dozen for free!

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