Constitution-making in Sri Lanka

Constitution-making in Sri Lanka 

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The present Constitution-making process seems awfully narrow and politically dictated by the leaders of this government. This is not a “public driven” drafting process. What is highlighted by this government as “public consultation” is a collection of proposals from interested individuals, groups and some organisations. Done through a Committee appointed for that job. The “Report on Public Representations on Constitutional Reforms – May 2016” gives these numbers as follows: Over 2,500 persons/organisations have appeared before the Committee, another 800 via e-mail, 150 via facsimile messages, 60 by telephone text messages and 700 representations via post and handing over personally. 

This much only in a society that has 15 million registered voters! Even if there was adequate public “consultation”, that cannot be substituted for people’s “participation”.   

There had not even been adequate and serious consultations on those proposals. It is impossible to imagine what would have come out of proposals that were received via e-mail, fax, personally-delivered and by post. From what the report says, the Committee members have gone through all those proposals received. But for sure, interpreted them the way they personally understood the proposals.Then recommended what they thought was good.  

Constitutions in this modern democratic world are made by people to govern themselves. Constitutions are not made by political leaders to govern people, and Constitutions are not made in a haste to say “another election promise” is being honoured.  

In South Africa (RSA), dismantling of the apartheid State was done through very heavy people’s participation.The process began with an agreement with “White” apartheid leaders and the African National Congress (ANC) that guaranteed the rights of the disempowered minorities. The Constitution-making process in RSA is thus termed “people decided, and not pre decided”.  

On May 8, 1996 the historic day the new Democratic Constitution of South Africa was promulgated, Cyril Ramaphosa, chairperson of the Constitutional Assembly addressing the assembly said “Since we embarked on the formal Constitution-making process 24 months ago, South Africans from across the country have embraced the process as their own. It is no exaggeration when we say that a team of 43 million people worked on this constitution.” (emphasis added) That’s what people’s participation is.  

In a research paper for the University of Wisconsin Law School, titled “South Africa’s Experience in Constitution Building” (http://ssrn.com/abstract=1808168) Heinz Klug says,”At its second meeting in August 1994, the Constitutional Assembly established a 44-member Constitutional Committee to serve as a steering committee and created an administrative structure to manage the process of constitution-making. Not only were they required to handle administrative support for the Assembly itself but the CA‘s administrative team was also responsible for facilitating other important aspects of the process including: a Pubic Participation Programme including both written and electronic submissions; a Constitutional Education Programme; a Constitutional Public Meetings Programme; and a newsletter, Constitutional Talk devoted to explaining the process and responsible for distributing four million copies of the working draftapproved by the CA in November 1995” [emphasis added].  

These 4 million copies were translated into all languages including tribal, that are in use in the RSA. A remarkable feature was the extensive use of the radio in their “Constitutional Education Programmes”. Reason for extensive radio use was their low literacy rate. Most people had to be talked to, more than given to read. (1994 literacy rate in SA was 67.3%) Also important were the structures created for direct public participation.  

The most recent experience in Constitution making is that of Mexico City with a 20 million population, almost equal to Sri Lanka. Out of them, nine million are counted as adults. The Mexico City residents are out to create a new Constitution by January 2017 to provide its main city the status of an autonomous Federal State. The heavy use of social media and web tools in harnessing public participation for that exercise is popularly termed, “progressive, inclusive, pluralistic and civic experiment in democracy”.  

The initial “Discussion Draft” is to be drafted by a Committee of 28 persons appointed by the present Mayor. Most were surprised by its gender participation (50%) and expertise included from varied fields of disciplines. Proposals could be made to this “draft” and deliberated upon by the nine million adults in the city. “Chilangos” (city locals) could file their proposals at 300 “drafting pubs” spread across the city. The City Council has outsourced Change.org to run an online public petition platform people could use to collect signatures to their proposals. If 10,000 signatures endorse the proposal, authors of the proposal would have access to another digital tool called the “PubPub”, one similar to ‘Google docs’ and edit the draft constitution to include their proposal. Those who don’t go online with their proposal have public seminars, meetings and discussion forums to collect the required 10,000 signatures that makes their proposal a base document in the drafting process.  

A few months ago, the most campaigned for proposal was for a provision to impose a minimum limit of 99 sq. ft of “green cover” for every city resident. This proposal was immediately endorsed with 30,000 signing it. Some calculations say if the proposal goes through, it would provide Mexico City with a green covering of around 10% of the city area. On another proposal, there were popular debates on the issue of a minimum wage in the city and social security as a “people’s right”. There were also serious and heated debates around the proposal to legalise abortion that the Catholic Church vehemently opposes.  

A new Constitution for Sri Lanka needs such people’s participation for discussions and debates. As with “White” participation in governance that was a contesting issue and on legalising abortion in Mexico City creating heavy opposition, to have provisions for a decent, workable and sustainable devolution package included in the Constitution, the South especially, would need serious debates and discussions. People need to understand what “devolution” is. They have to understand and be convinced “federalism” is a tested and proved State mechanism for “unity” and not “separation”. Such issues cannot be smuggled into the Constitution on undisclosed agreements between the government leadership and ITAK. People should have social space to decide what they need guaranteed in a Constitution.  

For such dialogue, the President can make public the Final Report of the All Party Representative Committee (APRC) that still lies out of public reach. This in fact is the only time serious work was undertaken collectively through 128 long sessions from 2006 June to 2010 July to gain a very wide political consensus for power sharing. This should not be wasted idling in a presidential shelf. The government should take the responsibility to promote a vibrant dialogue around it through different communication tools.  

The absence of such open and inclusive social dialogue is what allows for racial ranting in the South.  

Jaffna “Eluzha Thamil” protest and Wigneswaran now being flogged with glee is all about absence of dialogue, discussion and engagement with differing opinions and views. The most popular claim that the “Eluzha Thamil” demands put forward at the protest he led and his own “federal” demand would provoke Sinhala extremism. That only means this society is racially biased and wholly ignorant of what it wants as democracy. It only proves that the Colombo’s urban middle-class is happy maintaining the present status quo and not in advancing and accommodating dialogue for democratic change.  

This government that promises a new Constitution, therefore has the responsibility of creating social space for serious public dialogue. It has the social and political responsibility of facilitating platforms and fora and leading such dialogue. It has within its authority the State-owned media that could be used for a Constitutional Education Programme, similar to the one that South Africans conducted in drafting their democratic Constitution. Unfortunately, and sadly, this responsibility is shunned and instead we have negotiations between government and TNA leaders trying to smuggle in provisions they feel and think would be what are required as answers to what they perceive as problems of the Tamil people. No Constitution would have legitimacy in a society that has not been part of drafting its own Constitution.  

I would therefore propose the use of the APRC as a base document for the initial draft the parliamentary committees would work out and facilitate a social dialogue on it through a much broader and open participatory process before the parliament sits to discuss the draft.For such social discourse the government should with adequate funds establish,  

1. A Constitutional Committee comprising of Chief Ministers of all provinces  

2. A Committee comprising of public sector trade union representatives and trade union representatives of the National Labour Advisory Committee (NLAC)  

3. Provincial Constitutional Committees that would comprise of professionals, social organisations including environment, community development and business chambers.  

Without any public participation, this Constitution-making process has allowed rabid racist outbursts that would not help a “Referendum” needed, even if it turns out to be a well-crafted Constitution.  

- See more at: http://www.dailymirror.lk/117018/People-s-participation-answer-to-racist-outbursts#sthash.QDfgnpNw.dpuf