By Munasinghe Prasadika Sandamani –
The main objective of this article is to discuss how far the constitution of Sri Lanka has gone to implement laws to address the rights of the women in the post war conflict with respect their religious, social and cultural differences. With this aim in mind the post war conflict experiences of women have been discussed. The first section of this report highlights the definition of constitutionalism and fundamental rights. Section two describes women rights and the main issues faced by women in the post war conflict. There is a brief review of the role of the Constitution and its crisis and I describe in overall terms of the world how far the post conflict problems have been solved. Government reforms and a conclusion are discussed in the last section.
What is a ‘constitution’?
There is a massive range of meanings attached to the concept of constitutionalism. For our purposes however, we note only the definition which can refer with simple generic understanding on the word constitutionalism. The word constitutionalism derives fromconstitutional, which has its roots in the Latin term constitutio (meaning “enactment”); the plural form constitutions means “a collection of laws” (Sartori, Giovanni, 1962). The word indicates limitation of power and supremacy of law. It consists of a doctrine concerned with the frame of government, the distribution of powers and a system of checks and balances, and rights protection (G. Alan, 2007). The core elements of the constitution are the limitation of power and the supremacy of law or, the rule of law (Homem de Siqueira, 2010). The very idea of constitutionalism is premised on the respect of the rule of law, “in which the government, however it is configured, reflects the basic values and aspirations of the community”, (Stotzky, Irwin P. 2008). According to these definitions, we can reform the meaning of constitutionalism as the structure of governmental authority, the limitation of power and the protection of rights.
The role of the Constitution
According to the Patrick Henrry, the renowned expert on Constitutions:
“The Constitution is not an instrument for the government to restrain the people, it is and instrument for the people to restrain the government – lest it come to dominate our lives and interests” 1
What are the fundamental rights?
The very first definition of fundamental rights was by the Scottish philosopher John Locke (1632-1704) as absolute moral claims or entitlements to life, liberty, and property. The fundamental rights that humans have by the fact of being human, and that are neither created nor can be abrogated by any government. Supported by several international conventions and treaties these include cultural, economic and political rights such as right to life, liberty, education and equality before law and right of association, belief, free speech, information, religion, movement and nationality. Promulgation of these rights is not binding on any country but they serve as a standard of concern for people and form the basis of many modern national constitutions (Business Dictionary.com)
Women’s rights are the economic, social and cultural freedoms to which all people are entitled. For women to realize their rights, they must have equal access to resources and opportunities and equal treatment in economic and social life (Concern Worldwide U.S). However, in many parts of the world, women are nor treated on an equal basis with men and are denied their basic freedoms because they are women. In many cultures and especially religion, the roles assigned to women are based on the belief that men and women are not equal and should not have the same freedom in life. The hold of the establishment over decision making in financial and political matters of the country may be cited as one of the reasons behind the failure of successive civil government in fulfilling people’s expectation. Thus modern governments make attempts to change traditional and cultural practices to compromise the rights of women.
Women in the Post War Conflict
As a result of the post war conflict, the burden that many females have to bear in their families is the sole bread winner. These women now have a role to play as the Chief Occupants of the household. Therefore, they are compelled to fulfill the duty of sustaining their families even without adequate food, secured shelter, basic requirements and a proper livelihood. As a result of this they are exposed to violence and exploitation. The Psychological trauma that has been caused in them is a result of this environment. However these female oriented families are socially and economically extremely vulnerable in a conflict situation in a post war conflict era and they are fraught with many dangers in their quest for a day to day livelihood. These women have not only been affected by the violence but also they have witnessed the loss of their loved ones. At the same time they have suffered emotionally and suffered a downfall in their financial status.
Issues of Post War Conflict women
The young marriages in North and East have brought many a trauma to their livelihood in which they were compelled to get married in order to avoid forcible recruitment to the movement that continued at that time in the North and East as a de – facto movement. Most of these marriages were not registered according to the prevailing marriage customs and or the prevailing law of the area. The marriages that they attained have brought them to a worse situation as they cannot claim any maintenance for their own children.2 In most of the families their husbands have died due to the war. This situation has brought the women to be their own Chief occupant/ bread winner/ “women husband” in those families.
The Death Certificate is a crying need of the hour. Obtaining a death certificate on time would have eased their problems. But as they could not registered it on time due to the post war conflict situation and trauma that they were enveloped in has resulted in the loss of their husband’s property. The majority of the children have been unable to continue their education. Their valuable belongings are gone astray such as birth certificates, educational certificates, marriage certificates, deeds, licenses and any other valuable material which they have disowned due to the protracted war.
Land and Property issues
Armed Conflicts and displacement has given rise to many land and property issues. Most of the occasions, it can be seen only de facto settlement not social and economical establishment de jure with the return process. Generally, they have no access to their land and properties, destruction of land and Property, loss of legal documents, lack of transferring legal ownership and lack of access to legal services are the common issues in post conflict era.3 So they face many a problem without the land documents (deeds) to prove the legal ownership to their own land. According to this problem they cannot get the electricity or any other facilities they require to the place where they supposed to reside.
Is the Constitution sufficiently flexible to meet the issues in question?
The Constitution is no doubt sufficiently flexible to meet these issues. However, the Constitution does not bestow upon the people the rights required. Our Constitution does not guarantee even the right to life despite that fact that it is guaranteed by the Supreme Court by their reported Judgments. Furthermore, thanks to the Chief Justice and other activist judges of the Supreme Court the Right to life is finally guaranteed to the citizens of Sri Lanka. The Right to life is now recognized as against the quality of life by the judgment delivered by Justice Mark Fernando together with two other justices agreeing with him. In Kottabadu Durage Sriyani Silva Vs Chanaka Iddamalgoda, the officer in charge police station Payagala and others (2003) 2 Sri LR 63,
However, the founders considered the people’s rights to be “god – given or” “natural rights” We are born with our own rights. The Constitution does not however, protect our life but limits the power of Government by granting to it only those specific powers, which are enlisted in the Constitution. It is evident that without the Constitution, the State and the People have all the rights and there is no proper Government. With the Constitution, the State and the people keep and maintain some rights which are not specifically delegated to the Government by the Constitution.
Is the Constitution in a Crisis?
The Government created to serve the State and the people has deteriorated to the point that it is more concerned with perpetuating itself than with carrying out its constitutionally delegated duties by protecting people’s rights, as enumerated by the Constitution. The Government has goals and objectives of its own, which is often in conflict with the rights of the citizens. When the rights of the citizens and the goals of the government are in conflict, the citizen tends to be at the losing end.4
This is the horrifying situation which we always have to suffer. Furthermore, we the people are the architects that created the Government to serve us; we the people do not exist to serve the government.
In order to carry out its grandiose plans and achieve its goals, the government has to exercise power well outside those limited powers guaranteed by the Constitution.
The citizens always strive for constitutional democracy. It is a democracy because the government is based on consent as well as through the aspiration of the people. Further, the government operates according to the principle of majority rule. The people elect their representatives to the Parliament by majority vote; and the members of Parliament make laws according to majority rule, but the power of the majority must be limited by the higher law of written constitution. If not, people that the majority dislikes could lose their basic freedoms and opportunities. There should be constitutional limits on power in the government in order to protect the liberty and security of individuals. Moreover, the greatest threat to liberty would come from an unrestrained majority. This threat could be overcome by constructing constitutional limits on majority rights. It is democratic because of its foundations of popular consent and majority rule.
When we compare the practical problems the forefathers of the Constitution failed to address we are not able to forecast or identify the crises that would surface in the future. As a result of that our minorities have faced a lot of problems.
According to the Constitution of to the Constitution of the Democratic Socialist Republic of Sri Lanka in 1978 Article 3,5 is stated that,
“In the Republic of Sri Lanka Sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”.
What are the problems identified with the Constitution of Sri Lanka?
Right to life
Protection of the liberty
Could equality be protected under the Constitution
Right to happiness…etc.
According to the Constitution of the Democratic Socialist Republic of Sri Lanka in 1978 chapter 3 under the Fundamental rights Article 12.2 is indicated that, No citizen shall be discriminated against on the grounds of,
Place of birth or any one of such ground….
Article 1266 is fundamental rights jurisdiction and its exercise; this is the only one provision which now we have to protect our rights.
Also, Article 177 is the remedy for the infringement of Fundamental Rights by executive or administrative action of the State…
According to the above facts our North and East citizens have to face many pathetic situations.
How to protect the minority rights?
In the Constitutional democracy of Sri Lanka, the Supreme Court uses its power of judicial review to make decisions about issues in specific cases concerning limitations on the majority rights.
But when we look at the United States of America there are many landmark decisions regarding this, such as,
West Virginia state board of Education vs. Barrette (1943)
The Court has limited the power of majority rule in order to protect the rights to liberty of individuals in the minority. In this case, Justices Robert Jackson argued that a person’s rights to liberty, such as the right to free exercise of religion, are beyond the reach of majorities.8
So we can see even within the Constitution it has overridden minorities’ rights, and then the Government is acting unconstitutionally.
On the other hand conflict brought human rights violations because women and men could not participate in elections because elections were not held in all the areas of the North and East. Even when elections were held, allegations were leveled whether they were free and fair. Even though we have amended our Constitution on 18 occasions still we are unable to solve this minority problem in a sustainable manner.
This minority’s problem is still not represented properly and adequately in Parliament or Constitution because still almost all Parliamentarians are Sinhala Buddhist people.9
Overall throughout the world how far has post conflict reconstruction affected women’s security in East Timor?
Timorese women played a significant actors role in the initial stage of post conflict transformation. In fact, Timorese women are acknowledged as significant actors in different parts of the political establishment. In East Timor, the international community prioritized the ‘responsibility to rebuild’ and internationally accepted norms and values were promoted.10 However, Timorese women, through their strong advocacy for women’s rights and gender equality, managed to encounter cultural relativist arguments. Moreover, despite the development for Timorese women in the last five to 10 years, women still face many obstacles to political participation and to what extent women’s political security has really increased is hard to determine.
On the other hand, Milena Pires, argues that:”Cultural discourse is invoked frequently to quash attempts to introduce discussions on women’s rights into the east Timorese political equation. The incompatibility between East Timorese culture and what is popular cited as western feminist imposition is used to dismiss even the notion that Timorese women’s rights may need to be nurtured and defended so to become a reality…”11
Post-conflict reconstruction often establishes new rules, norms and institutions, marking it possible to highlight women’s rights and acknowledge the contribution that women make in the reconstruction of war-torn human societies.
Moreover, a significant role in building sustainable peace and establishing democratic societies is played by Constitutional reform. Constitutions establish peoples’ political and civil rights, as well as economic and social rights, setting the tone for other legislative development. The new Constitution should recognize Women’s Rights and serious concerned efforts must be taken to incorporate them into the national legal system.
East Timor is still one of the most impoverished countries in the world with a very fragile justice system with transitional justice issues that are yet to be resolved. Women are important for these developments, but they are faced with continued political marginalization, lack of economic opportunities and a fragile justice system and traditional denying them justice for crimes committed against them. The recent developments indicate that East Timor’s democracy is still very fragile and it is too soon to celebrate the success of Post Conflict reconstruction, both for women and men.
Overall throughout the world how far has post conflict reconstruction affected women’s security in Kosovo
The Kosovo’s new constitution created a parliamentary republic with pledges to protect minorities. In terms of structure, the President is the Head of State and the Prime Minister, elected by the Kosovo Assembly is the head of the Government. The unicameral Kosovo contains 120 seats. Of those seats, ten are reserved for ethnic Serbs, ten, for other designated minorities, and three are for other non-specified minority groups. 12
According to Ryan Vogel, recently the Government of Kosovo released a draft Constitution for the public to comment, which included the language from the Ahtisaai settlement discussed below and the stipulation in Article 146 that the settlement shall be the final authority in Kosovo. Thus, while the settlement did not come before the UN as a resolution, its provisions will likely still form the foundation of the new Kosovo Constitution.13
Now they realize that Kosovo’s years of uncertain political status as the primary reason for its underdeveloped financial institutions, lack of foreign investment, slowness to integrate fully into the regional economy and political instability. Thereafter they have attempted to amend their Constitution.
Governmental Reform Initiatives
In accordance with the International conventions and declarations, the Sri Lankan government has been taking various initiatives and reform measures for improving the status of women at all levels. It has taken few steps to repeal discriminatory legislations against women i.e. the Act number 34 of Domestic Violence in 2005. Contrary to the expectations of women’s rights groups, the Parliamentary Committee for Constitutional Reform has refrained from proposing the removal of the discriminatory laws.
With so many legislative amendments and bills, we still cannot stop the horrendous crimes against women and this is due to people’s behavior and attitudes towards women. Many post-conflict countries have taken steps to increase women’s political participation. But, for women to enjoy their rights, they must have resources in capacity, property, capital and decision making power. To accomplish this it is sometimes necessary to support women focused activities that address deficits disparities or disparities and ensure that women have resources or capabilities. It invites the full incorporation of women’s rights through women-focused activities that contribute to leveling the playing field or in purposeful policies.
All post war conflict and development work particularly from a gender perspective, success depends on the political commitment at all levels and in indigenous countries solutions. Leaders must ensure that the entire population, men and women alike, poor as well as rich and full participants in building their new social and economic institutions, and that women and men find culturally appropriate and effective ways to work together for respect gender relations that would be beneficial to all.
Literature Cited Or Referred To:
Cited in Charlesworth and Wood, “Women and Human Rights in the Rebuilding of East Timor.”
Roynestad, Are women Included or Excluded in Post – Confect Reconstruction?
Regan, ” Constitution- making in East Timor” P.39, Garnson The Role of Constitution -Building Processesa in Democratization.
R. Edirisinha & A. Jayakody (Eds) 2011. The Eighteenth Amendment to the Constitution: Substance and Process (Colombo. Centre for Policy Alternatives)
5) The Constitution of the Democratic Socialist Republic of Sri Lanka in 1978
6) The Constitution of the Democratic Socialist Republic of Sri Lanka. Text, Cases & Matterials N.M Reyaz2011
7) The Gender Dimensions of Post Conflict Reconstruction. The Challenges in Development Aid by – Marcia E Greenberg and Elaine Zuckerman.
8) Post – Conflict Reconstruction and women’s security – analyzing political outputs in East Timor, Susanne Allden – Department of Political Science.
9) The Gender Dimension of Post Conflict Reconstruction – The Challenges in Development Aid by Marcia E Greenberg and Elaine Zuckerman
2 Conflict and Women status in the North and East of Sri Lanka, http/www.fao.org
3 Vulnerability of Displaced Women in Post Conflict Era in Sri Lanka,2011,June,National Protection and Durable Solution for internally displaced persons project HRC, Sri Lanka
4 John Agresto, The Supreme Court and Constitutional Democracy, 1984
5 The Constitution of the Democratic Socialist Republic of Sri Lanka in 1978
6 The constitution of the Democratic Socialist Republic of Sri Lanka in 1978
7 The Constitution of the Democratic Socialist Republic of Sri Lanka in 1978
8 John Agresto, The Supreme Court and Constitutional Democracy, 1984
9 Sri Lanka’s Post war Constitutional Reforms Debate by Asanga Welikala, 8.Augast 2011
10 The General Dimension of Post Conflict Reconstruction. The Challenges in Development Aid by Marcia E Greenberg and Elaine Zuickerman
11 Cited in Charlessworth and Wood ‘Women and Human in the Rebuilding of East Timor’
13 Dependant on Arrival Kosovo’s Status Seyylement and the new Constitution by Ryan Vogel
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