By Malinda Seneviratne –
Nagananda Kodituwakku, public interest litigator, has drafted a constitution for Sri Lanka. It would be the Third Republican Constitution since Independence if it moves from draft, through discussion, and amendment (if necessary) to ultimate replacement of the Second Republican Constitution and its amendments.
He has detailed sweeping changes in judicial, executive and legislative powers, treaty obligation, size of parliament and cabinet, parliamentary privileges, election system, the right of recall as well as transitional provisions. We need to salute this indefatigable fighter for citizens’ rights, true representation and accountability for the efforts expended in drafting this document. It deserves perusal and discussion.
Now a republic can be defined as a state in which supreme power is held by the people and their elected representatives and which has a leader who is elected rather than a monarch. Given diversities of all kinds, a leadership of a republic should ideally be representative of that diversity or at least sensitive to it. Typically its the majority sway that finds expression in the governments that are elected. Majority can take many forms and where identity has sway there should be checks and balances to ensure that this ‘edge’ does not slide to a tyranny where those who don’t make up the majority are not reduced to lesser citizens in any way.
Also, it must be understood that citizens are not entities without culture, philosophy and identity. Representation, therefore, gets inscribed by all this. This is why majorities mark the state one way or the other. Such things can be legislated out of course, but then we need to have a different definition of ‘republic’.
That said, let’s get to the secular-wish of Kodituwakku’s proposal. He has been bold and clear and this is good. Also, let us not rush to think that he is proposing just a word-change. Constitutions give direction. Key elements such as secularism would obviously require amendment and/or repeal of any articles in order to keep intact the integrity of the notion. Governments obtain from these and proceed to amend policies to affirm the constitution.
This is what the summary which he has made public recently says:
“[There will be] strict anti-racial [and anti-]discrimination laws with severe penal sanctions against any form of discrimination, guaranteeing human dignity, self-esteem and respect would be guaranteed to every citizen.” He adds: “Every citizen is identified as a Sri Lankan only and any reference made to race or religion in any instrument will be cancelled forthwith and no Sri Lankan shall be compelled to declare their race or religion.”
There’s a rider that might cause some problems, though: “Every citizen will be required to respect the culture, religion, rights and freedom of other social groups and to further national interest and the national unity.”
The problem is this: religions and therefore religious practices, depending on the religion and the practice of course, can by definition infringe on other religious communities and their rights. In other words religions can spill outside the particular religious body; for example those religions which consider proselytization an article of faith or whose religious texts define religious others as infidels who need to be eliminated by any means necessary. Where do we draw the line and who decides a) if lines should be drawn and b) what these lines are? The questions raised will be hard, but they need to be raised and addressed.
It might help to consider certain scenarios that exist and/or are recommended. There are some, for example, who claim that injustices should be remedied. The British reneged on the agreement inked in the form of the Kandyan Convention with respect to the status of Buddhism. Correction would mean that we need to reaffirm the particular article. Some might say this was done via Article 9, i.e. Buddhism being conferred the foremost place and the State required to protect and foster the Buddha Sasana. However, it can be argued that this ‘special status’ is immediately and effectively negated by Articles 10 and 14(1)(e).
What needs to be understood here is that recalling history is a dangerous game and if such ‘correction’ is the norm constitutions would have to be constantly amended as per changing demographic realities. If, for example, there’s some kind of mass slaughter of a particular religious community (and we have seen this happen), someone might say, ‘now go ahead and legislate for the changed reality!’ An extreme example is given here to illustrate the point: Buddhists can ethnically cleanse the island of Hindus, Christians and Muslims, or Muslims can eliminate those of other religious faiths. What then of true republicanism? What then of the secular wish?
We can defer such things to such a tragic eventuality of course. What we cannot defer is the non-secular interventions of the state in a would-be secular state.
Here are some of the questions that secularists would have to address:
In a secular state enacted through constitutional reform on the lines proposed by Kodituwakku and others, can there be more than one system of law, i.e. special laws for particular religious communities? If there’s going to be one law for everyone (as proposed), what then of ‘customary law’? Will Thesavalamai Law, Kandyan Marriage Law, aspects of Sharia Law embedded in the Constitution be repealed? Shall we make ‘talak, talak, talak’ THE formal and state-sanctioned method of divorce and if so will women have the same right as men to employ it?
What is required then is a system of rationalization. A Christian friend mentioned one irrationality (and this is not about secularization): ‘Ours is a religion that sanctions wine in the church itself, but liquor shops are closed for Christmas which is a day of celebration and not Easter, a day for abstinence, penitence and general reflection.’
There are more serious issues that require attention if we are to go the secular way. Religion is a private affair. If a Buddhist wants to engage in religious observances, observe sil for example on Poya Days, he/she should do it on his/her time and not that of the place of work, be it government or corporate. There’s leave. There’s lieu leave. Take it! Similarly, A Muslim who want to pray on Fridays can either take short leave or come to an arrangement with the employer to work extra hours. A Christian can take leave for Christmas and Easter. And to keep everything equal, we would have to shift the weekend so as to avoid days of worship as per religious edict/belief in the interest of there being no special privileges for any religious community. In other words, we have to have a weekend that avoids Fridays (special for Muslims) and Sundays (special for Christians).
There need not be bo leaves on the national flag because that would be ‘Buddhist’. The Muslim Marriage and Divorce Act will have to be repealed. All legislation as well as other written and unwritten ‘understandings’ for religious exceptions for Muslims during Ramadan and in the event of widowhood, divorce and childbirth would have to be removed.
Note also that provisions enabling Christian and Catholic priests to function as marriage registrars would have to be abolished. If the state requires to recognize such unions priests shouldn’t be allowed any part in the matter. After all, we have to keep religion strictly apart from matters of the state!
That would not mean of course that religious practices are outlawed, but just that no one can make any claim on the state for special privileges.
If you want to keep all that because ‘that’s how it has always been’ then we immediately make room for historical claims and with it we cannot leave out the articles in the Kandyan Convention.
The issue is this: are we really serious about secularism? Will secularists respond? Whether they do or do not, the following must comment: Nagananda Kodituwakku, Rohan Pallewatte, Gotabhaya Rajapaksa, Patali Champika Ranawaka, Ranil Wickremesinghe, Maithripala Sirisena and any other individual entertaining hopes of becoming the next President of Sri Lanka.