The state of the law enforcement agencies, particularly the police service, and other branches of the administration of justice, the Attorney Generals Department, and the judiciary in Sri Lanka is in a state of serious collapse. So long as this state of collapse remains, it would not be possible to implement any constitution within the framework of the rule of law under the principles of the Supremacy of law. This was one of the main reasons the people voted for a change on the 8th of January last year, in order to make the necessary changes in order to restore democracy and the rule of law in the country.
Prime Minister Ranil Wickremesinghe with approval of the Cabinet, appointed a 24-member committee comprising representatives from political and civil society to obtain views on constitutional reforms from the public.
The Constitutional Reforms Committee has decided to focus on two critical areas, namely the democratisation of the state and national reconciliation.
Speaking to the Sunday Leader on these two main areas and why these two areas were specifically vital in terms of the constitution, Attorney-at-Law Lal Wijenaike, who heads the committee said that the reason we need a new constitution is because under the current constitution during the last 10 years or so and especially after the 18th amendment was adopted there was no rule of law in the country and there was a complete breakdown of the rule of law. “For instance see how many people were killed during the past, while in police custody, and many journalists were killed during that time and government servants were tied to trees and teachers were made to kneel before politicians. However in spite of all this happening there wasn’t a single case that was filed against the perpetrators.
CJ Thrown out
Then the Chief Justice Shirani Bandaranayake was thrown out of her position and the supreme court and the court of appeal gave two judgements saying that the procedure adopted was wrong. However, the political powers at the time dismissed these verdicts and refused to accept it. That it itself shows that there was a complete breakdown of the rule of law, and also a complete breakdown of democracy. The actions of the government at the time clearly violated the fundamental rights of those who were wronged, but no one was able to protect them. That was a failure of the whole democratic process. At that time even in some areas the police don’t file cases because they have to ask the politicians whether to file the cases or not. That was the situation that existed at the time. The law of this country allows for freedom of speech, expression, association and peaceful assembly, but the previous regime restricted these rights in practice. In addition these legal rights were significantly limited by other laws and regulations in place, such as the 1979 Prevention of Terrorism Act (PTI), which contained broad restrictions, such as the prohibition on bringing the government into contempt.
The Rajapaksa regime systematically suppressed the freedom of expression. Journalists were subjected to surveillance, where their phone conversations were monitored including their online communications. Journalists were accused of treason by senior government officials for publishing critical stories about the government and its policies and in certain instances for criticising the governments actions. Government officials threatened and intimidated editors into printing stories that portrayed the government in a positive light. Critics of the government, including human rights activists, were subjected to harassment, intimidation, violence, imprisonment, enforced disappearances and killings. This resulted in most journalists resorting to self-censorship in order to safeguard themselves.
The media was scared and they even refrained from publishing any corruption of the government, said Wijenayake, adding that there was a complete breakdown of democracy in the country. “Therefore when the people wanted change and when they voted on the 8th of January 2015, it was to restore that democracy. The earlier constitution too was not strong enough to defend democracy. The courts were not strong and they were filled with judges that the then president wanted. Hence there was a complete breakdown of the constitution,” he added.
Wijenayake pointed out that therefore, today it is of vital importance to draft a new constitution where the democratic rights of the people (human rights) will be safeguarded and the people will be protected. For this to happen, he said, there should be a strong judiciary and no one, not even politicians should be allowed to interfere with the judiciary.
That is what you call democratisation of the state. That is the most important thing that should happen under the new constitution. There is a complete breakdown of the present constitution and that is why we need a new constitution. The present constitution was saved to some extent by the 19th amendment, but that is not sufficient. So drafting a new constitution is of paramount importance if democracy and the rule of law is to be established in the country.”
There is cautious optimism in the country that Maithripala Sirisena, could steer the country towards real change. Among the factors that led to the defeat of the Rajapaksa regime were that he was becoming increasingly authoritarian and nepotistic to resentment at the high cost of living, corruption, encroachment on judicial independence, and attacks and curbs on journalists and civil society groups. The new government has taken Important steps to reform the Constitution, revive independent institutions, and restore an environment for free expression and debate.
Powerful symbolic gestures of reconciliation have been made, for instance the singing the national anthem in Tamil.
However other steps, such as the release of land held by the military, reviewing the cases of security detainees, and resolving the issue of disappearances, need to move forward faster, reconciliation is also of vital importance, if we are to heal the wounds of war and move forward as one nation. According to Wijenayake, when it comes to reconciliation, the war is now over and we need reconciliation in order to heal the wounds left by the war. “Without reconciliation, we cannot move forward. In order to move forward we need to build a society based on trust and everyone is treated in an equal manner where all can live with dignity.
Hence the second most important thing in drafting a new constitution is reconciliation. The new constitution is needed especially to focus on these two areas. This does not mean that the other matters are not important or less important. There are environmental rights, women’s rights, child rights and protection of the disabled etc. All these have to be incorporated into the new constitution. However of these the vital two are Democratisation of the state and national reconciliation,” he said.
There were varying thoughts and opinions that amendments to the existing constitution should be made, while others felt we needed a fresh constitution. However now all have come to an agreement that we do need a new constitution and amending the existing one will not suffice. “Now everyone has accepted that a new constitution should be drafted. Amending the existing one is fruitless as it has been amended 19 times already.
There are basic defects in the existing constitution and further amending it would not serve the purpose. We have to understand and decide what the basic structure of the constitution should be. There are basic structural changes that is needed in the existing constitution, and the supremacy of the constitution has to be restored. Not the supremacy of the parliament but the supremacy of the constitution, so that no one can violate the constitution. Even 100 MP’s or all of the MP’s voting cannot violate the constitution,” added Wijenayake.
The most important requirement for a constitution is for the people and the civil society to get involved based on the needs of the community. Since the establishment of the Public Representation Committee on Constitutional Reform, the public have been very enthusiastic in getting involved with the formation of the new constitution. Moreover unlike in any of the previous constitutions, for the first time all political parties in the country are in support of the drafting of the new constitution which is a very positive sign.
However drafting a new constitution might not be the solution to all the problems faced by the country, but as the Supreme law of the land, it could be considered a great step forward in terms of progress. It is a positive sign that the process of drafting a new constitution has gone beyond party-driven politics, and let us hope that this time it will be a solid document that will truly serve the interests of the nation.