New constitution & reconciliation : Sri Lankan diaspora communities can make a vital contribution

Image: Different but equal (file photo of a agitation held in Colombo)

“Our Constitution should help foster a society that nurtures a culture of peace based on mutual respect, understanding and cooperation. A constructive dialogue within and between the Sri Lankan diaspora communities around the globe can make a vital contribution towards building trust and reconciliation, and help create a more favourable environment for durable peace. We emphasise the need for stakeholders to encourage and enable new opportunities for dialogue between communities of Sri Lankan origin in Australia and beyond with a view to developing consensus on the proposed constitutional reforms.” says a joint communiqué, issued by the Australian Advocacy for Good Governence in Sri Lanka Inc.

The joint communique has been issued after a workshop held on the the Interim Report of the Steering Committee of the Constitutional Assembly of Sri Lanka. The workshop, facilitated by Emeritus Professor Joseph Camilleri of La Trobe University and guided by Associate Professor Ken Coghill of the Monash University has discussed specific topics including the role of constitution, rule of law, devolution of power, separation of powers, judiciary and judicial independence, independent regulatory bodies, accountability and reconciliation. Dr Jayampathy Wickramaratne, MP and President’s Counsel, has provided a useful update via video link on the workings of the Steering Committee and answered several questions raised on the Interim Report.

The full text of the joint communique:

Workshop on Constitutional Reforms in Sri Lanka – 24 September 2017

Organised by the Australian Advocacy for Good Governance in Sri Lanka (AAGGSL)

Joint communiqué by the participating organisations and individuals

Preamble:

With the release of the Interim Report of the Steering Committee of the Constitutional Assembly of Sri Lanka on 21 September 2017, the debate over constitutional reforms has begun earnestly. We welcome the Interim Report and recognise the positive contribution it makes for the purpose of developing an inclusive and harmonious Sri Lanka.

This is a great opportunity to develop a constructive dialogue among the stakeholders, both local and overseas, so that the country as a whole will embark on a new political path respecting and recognising its ethnic diversity.

The Constitution sets out Sri Lanka’s basic law and the system of government, including how Parliament works, what power it has, how the Parliament and local elected bodies share power and the roles of the Ministers and the Courts. It also reflects the principles and values by which the country’s people wish to be governed.

As sovereignty is derived from the people, the citizenry need to actively and constructively participate in this important conversation, articulating their views prudently to build consensus on the complex issues that affect their lives and governance.

Constitutional reforms, therefore, should aim at ensuring good governance with the legitimate interests and security of all communities of Sri Lanka at heart, including protection of their unique cultures and languages.

A better, fairer and equitable future can only be built upon respect for the human rights of all citizens irrespective of their ethnicities, including the rights outlined in the International Covenant on Civil and Political Rights.

With the above considerations in mind, Australian Advocacy for Good Governance in Sri Lanka (AAGGSL) organised a workshop on “Constitutional Reforms and Reconciliation in Sri Lanka” on Sunday, 24th September at the ‘Darebin Intercultural Centre’ in Preston, Victoria, Australia.

Deliberations:

The workshop, facilitated by Emeritus Professor Joseph Camilleri of La Trobe University and guided by Associate Professor Ken Coghill of the Monash University, discussed specific topics including the role of constitution, rule of law, devolution of power, separation of powers, judiciary and judicial independence, independent regulatory bodies, accountability and reconciliation. Dr Jayampathy Wickramaratne, MP and President’s Counsel, provided a useful update via video link on the workings of the Steering Committee and answered several questions raised on the Interim Report.

Participants representing Sinhala, Tamil, Muslim and Burgher expatriate communities of Sri Lankan origin in Melbourne deliberated on the just issued ‘Interim Report of the Steering Committee of the Constitutional Assembly of Sri Lanka’, including the observations and comments contained therein, made by the Steering Committee Members. And undoubtedly, we find further enhancements are necessary.

The following is our collective and considered position on the constitutional reforms being deliberated in Sri Lanka, which we hope will lead to the most desirous outcomes for all its peoples:

1. Sri Lanka to be known as the Republic of Sri Lanka; Sri Lanka shall have only one Parliament consisting of the First Chamber (House of Representatives) and the Second Chamber(Senate) that is representative of the Provinces; The Second Chamber should consist of equal number of Members drawn from each Provincial Council and a local person of eminence recommended by each Provincial Council;
2. The Second Chamber should have powers to review legislation and make recommendations to the House of Representatives, including specific powers to ensure the devolved political authorities of the Provinces are not diluted or interfered with;
3. The Constitution should clearly enshrine the doctrine of ‘Separation of Powers’ between the Parliament, the Executive and the Judiciary to avoid any one group having all the power;
4. The Executive Presidency should be abolished. The Executive powers should be vested with the Cabinet of Ministers following the doctrine that human liberty should be preserved by avoiding concentration of powers in one person or body of persons; If the period of the current executive presidency is to be extended, it should be only in exceptional circumstances and only for a very brief period. In that event, a specific process and a time frame to abolish it should have been agreed upon by the Constituent Assembly; Executive decisions on any matter including on national security and lands acquired for security should be subject to judicial oversight;
5. Sovereignty shall be inalienable and shall vest in the people in an undivided Sri Lanka; Due to the high volume and diversity of subject matter the Supreme Court deals with, it is prudent to establish a separate Constitutional Court for resolving urgent constitutional matters of national importance; While granting maximum devolution of power to provincial administrations, specific provisions to prevent secession need to be made;
6. The Constitution should recognise the multi-cultural nature of the Sri Lankan populace;
7. Recognition of Province as the primary unit of devolution with clearly demarcated and unambiguous national and provincial lists is a pragmatic way of handling centre–periphery relations; If all parties agree, use of the term ‘aekiya rajyaya / orumiththa nadu’ is acceptable, given that the relevant proposed Article defines “aekiya rajyaya / orumiththa nadu means a State which is undivided and indivisible, and in which the power to amend the Constitution, or to repeal and replace the Constitution, shall remain with the Parliament and the People of Sri Lanka as provided in this Constitution”; If people of two provinces desire to form a single unit and so attest at a referendum held in each of the provinces, the Constitution needs to allow the people to exercise that democratic right to unify their provinces;
8. The President should appoint Governors, subject to consultation with the respective Provincial Council and the Parliament; Interference by a Governor in the decisions of the Board of Ministers of a Provincial Council should be made if and only if there is a constitutional breach; Ad hoc interventions by Governors must end and their official functions be guided by advice received from the Board of Ministers of the Provincial Council;
9. Human rights should be recognised as inalienable and inherent rights of all citizens; Formal mechanisms should be spelt out to defend this right for all peoples including the linguistically and socially diverse communities;
10. The State needs to be secular, though a constitutional provision giving Buddhism the foremost place is acceptable providing the relevant clause stipulates that all other faiths are to be treated with honour and dignity with appropriate checks and balances to ensure that they can function in the community free of discrimination;
11. The Constitution should guarantee civil and political freedoms, including that of conscience, religion, belief, opinion and expression, as well as freedom of the press and other media and of peaceful assembly and association; Anyone whose rights and freedoms have been infringed or denied should be able to apply for remedial justice to a court of competent jurisdiction;
12. The Constitution should also guarantee the right to life, liberty and security in accordance with the principles of fundamental justice; the right to be secure against unreasonable search or seizure; the right not to be arbitrarily detained or imprisoned or made disappeared; the right to be informed promptly upon arrest or detention of the reasons therefore; to retain and instruct counsel without delay; to be informed of that right; to have the validity of detention determined by way of habeas corpus; and to be released if the detention is not lawful;
13. All should be equal before and under the law, which should afford equal protection and benefit without discrimination based on race, national or ethnic origin, language, colour, religion, gender, age and mental or physical disability; Sinhala and Tamil should be recognised as official languages with equality of status, rights and privileges regarding their use in all institutions of both Parliament and government; English should be declared a national language;
14. The declaration of emergency should be subject to Parliamentary approval within a strict time frame (e.g. two weeks), and be subject to a judicial review at the earliest opportunity; We strongly disagree with and object to the proposition that the approval of Parliament and judicial review are not necessary for imposing Emergency Laws. This would be tantamount to retaining some of the undesirable and authoritarian powers of the Executive Presidency;
15. State Land: Constitution should provide for unambiguous and appropriate administrative mechanism to efficiently and fairly resolve land disputes between the Centre and Provincial Administrations;
16. The Constitution should provide for improving gender equity and alleviate the significant under-representation of women in the Parliament.
17. The Constitution should safeguard the Privacy of citizens from being infringed by data digitisation such as using biometrics, identity management systems and mass surveillance, and ensure the ethical use of data and digitisation does not discriminate against anyone or diminish human rights; The digital and human decision-making processes used should be explicable, auditable, evaluable, trustworthy and in the public interest; and
18. The Constitution should recognise the need for environmentally sustainable developments, reduction of greenhouse gas emissions and participation in international endeavours to contain Global Warming.

Conclusion:

Our Constitution should help foster a society that nurtures a culture of peace based on mutual respect, understanding and cooperation. A constructive dialogue within and between the Sri Lankan diaspora communities around the globe can make a vital contribution towards building trust and reconciliation, and help create a more favourable environment for durable peace. We emphasise the need for stakeholders to encourage and enable new opportunities for dialogue between communities of Sri Lankan origin in Australia and beyond with a view to developing consensus on the proposed constitutional reforms.

We call upon the people of Sri Lanka and civil society organisations to engage in a grassroots level campaign among the voters and politicians for the need for bold Constitutional Reforms, with checks and balances that are vital to the health of democracy, peace and prosperity of all peoples of Sri Lanka.

Agreed by the following participants:

Ajith Rajapaksa                         Australian Advocacy for Good Governance in Sri Lanka (AAGGSL)

Antony Gratian                         Australian Tamil Congress (ATC)

Anura Manchanayake              Janatha Vimukthi Peramuna (JVP) – Melbourne Branch

Asoka Athuraliya                       United National Party (UNP) – Melbourne Branch

Brian Jeganathan                      People for Human Rights and Equality (PHRE)

Chitra Bopage                          Australian Advocacy for Good Governance in Sri Lanka (AAGGSL)

James Raveendran                    Tamil Community

Jude Perera MP*                       Member of the Victorian State Parliament

Kumar Eliezer                           Tamil Community

Lal Perera                                United National Party (UNP) – Melbourne Branch

Larry Marshal                           Sri Lanka Invites (SLI)

Lionel Bopage                           Australian Advocacy for Good Governance in Sri Lanka – AAGGSL

Letchumanan Murugapoopathy  Tamil Community

M S Subramaniam                     Tamil Community

Nalliah Suriyakumaran              People for Human Rights and Equality – PHRE

Naveen Fernando                      Janatha Vimukthi Peramuna (JVP) – Melbourne Branch

Prasad Mohotti                         United National Party (UNP) – Melbourne Branch

Pubudu Samaraweera               Janatha Vimukthi Peramuna (JVP) – Melbourne Branch

Ranjith Weerasinghe                 Australian Advocacy for Good Governance in Sri Lanka – AAGGSL

Renuka Senanyake                    People for Human Rights and Equality – PHRE

Shan Manikkalingam                 Tamil Community

Shyamon Jayasinghe                 United National Party (UNP) – Melbourne Branch

Siraj Perera                              Australian Advocacy for Good Governance in Sri Lanka – AAGGSL

Sunil Handunpathirana              Janatha Vimukthi Peramuna (JVP) – Melbourne Branch

Sithy Marikkar                          United Sri Lanka Muslim Association in Australia – USMAA

* Hon Jude Perera MP disagrees with the first part of Point 8 above in that he is of the view that the Chief Minister should appoint the Governor, whose role should be a ceremonial role.

Prepared in Melbourne, Australia on 10 October 2017