Proposals of the Centre for Women and Development for Constitutional Reforms

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The Chairman
Public Representations Committee on Constitutional Reforms,
Secretariat for PRCCR,
Visumpaya
Staples Street,
Colombo.2

Sir,

Proposals of the Centre for Women and Development for Constitutional Reforms

At the outset we would like to brief the social and political background existing in Srilanka before suggesting proposals/amendments to the current constitution;

Tamil peoples’ rights were suppressed for the last 40 years under emergency rule and 30 years under the Prevention of Terrorism Act.

Murders, torture, degrading treatment and arbitrary arrest during that period were covered under the carpet.

Though commissions of Inquiry were appointed to investigate into the above illegal acts the reports of the commission were never published.

Since the state resources, media, political power were misused and abused during the elections the elections were not free and fair

Laws of the country were abused to make false charges and detain accused without producing to courts.

Three organs of the state, Executive, Parliament and Judiciary were just namesake institutions and they too indirectly contributed to the situation.

1978 Constitution gave unlimited powers to the Executive President. Human rights violations and economic burdens were on the increase.

Rule of law took a backseat under the powerful executive presidency. Several social problems emerged. Instead of democratizing through peace the powers concentrated in a single institution, executivepresidency. Winning the war became a license for suppression.

Agitation for limiting the president powers resulted in bringing 17th amendment to the constitution. Because of the weakness of the amendment the constitution was not duly respected and the election commission was appointed by violating the 17th amendment. Mahinda Rajapakse appointed his nominees to the constitutional council. Democratic values were ignored and 13th and 17th amendments were violated. Under the demeaned political culture thoughts for restructuring the state is a well come move. It is an appreciable and democratic approach of the new government to request for public representations aimed at amending the constitution. Ourcenter would like to forward the following amendments to twenty aspects of the constitution of Srilanka.These are all the recommendations of a group of experts;

Formation of Government

 There should be two houses in the parliament, upper house and lower house. Representatives of the upper house beelected by the people. Members from various professional backgroundsbe appointed.to the lower house and one third of the members should be from minority races of the country. Parliament and Provincial councils to appoint members to the lower house.

Power sharing

  • Proposed draft for constitutional amendment should deviate from unitary state concept andprovide more devolution of power to Tamil, Muslims and plantation Tamils.
  • Proposed constitution should absorb more federal aspects than unitary status.
  • The words Unitary and federal should be omitted.
  • New draft for constitution should have protections not to change the provisions affecting Tamil people without their consent. Minority protection clauses should be incorporated in the draft. In the system of central government and provincial government a new system of Federation of provinces could be introduced. In place of parliament a parliament and a regional legislative assembly should be established. Legislative powers should be shared. All the bills should be approved by both houses and regional units. The bills proposed by the central government cannot be accepted unless the consent of the regional units.

A new constitution will be enacted with the amendments. It should be confirmed in the new constitution that a right incorporated in the new constitution should not be repealed.

Judiciary

  •  There should be 100% judiciary independence. There should be a North east Regional Judicial service commission consisting of judges in the north and east. There should be a regional High court for north and east. Judicial proceedings should be under the guidelines of the regional judicial commission. Except constitutional affairs and any matters which does not have concurrence between central government and regional governments, the constitutional court should be represented by regional governments which should have veto powers.
  • There is no arrangement for judicial review in the present constitution new constitution should have provisions for judicial review.
  • There should be provisions for judicial interference when bills are proposed in contravention of the constitution.
  • There should be provisions to atop cross overs by elected members.

Fundamental rights

  • Jurisdiction of fundamental rights should be vested in the regional judiciary.
  • Any actions to disrupt the identity of the minorities should be interpreted as violation of fundamental rights.
  • Rehabilitation of the war victims irrespective of race, religion and language should be identified and be incorporated in the fundamental rights.
  • Right of remembrance of those who died as a result of the war should be made as a fundamental right.

Language rights

  •  The new constitution should be in three languages and form and contents should be easily readable. This arrangement would ensure there would not be any need for interpretation.
  • Constitution of 1978 placedutmost position for Buddhism and Sinhala language and Sinhalese people were given prominent place and minorities were marginalized. The new constitution should deviate from the above.
  • Constitutional status was given to Tamil language as one of the state languages and there should be constitutional guarantee for the implementation of Tamil language. There should be arrangements in the constitution for Public Interest litigation when people are affected by the use of language.

Land rights

  • Boundary delimitation and demarcation of regional boundaries should be assigned to Regional councils. North east merger and the territorial rights should be recognized in the new constitution. Lands in the provinces should be registered in the Regional councils. Incase lands required by central government request should be made to regional councils. All colonization projects by the central government should be stoped.Land distribution and colonization should be done according to the district, provincial population.
  • Land rights under the law of Thesavalamai should be favorable to women.

Women’s rights and representation

  • Land rights under the law of Thesavalamai should be favorable to women.
  • Parliament representation to women should be 50%.The arrangement of one man to one woman may not require a quota system.
  • Statue can only confirm social change. Provisions for protection of women’ rights should be incorporated in the new constitution.
  • Statue can only confirm social change. Provisions for protection of women’ rights should be incorporated in the new constitution.
  • There should be a separate women court to investigate into matters pertaining to women. These courts should be established in each region.
  • Article 12 prescribes all are equal before law. But Dalak enable a Muslim man to divorce his spouse. There is no provision for a Muslim woman to initiate divorce case.
  • Internationally accepted conventions pertaining to women and children should supersede local customary laws.
  • UN conventions 1325, 1820 which recognizes the rights of women should be incorporated in the new constitution and there should be provisions in the constitution to implement the CEDAW recommendations.
  • There should be provisions in the constitution to legalize abortion with a physician’s advice when a woman becomes pregnant as a result of rape or forced sex.
  • There should be provisions in the constitution to specifically mention male/female name as the householder in the government forms. This arrangement would enable women to face challenges.
  • Political representation for women in regional councils should me 25% and the Commissioner of election should recognize this arrangement.

Names of those who contributed to the draft constitution

  1.  Saroja Sivachandran –    President, Centre for women and development
  2. T.Vignarajah –                   Retired Judge
  3. K.Kurunathan –                  Retired Land Commissioner
  4. M.Remidiyas –                   Attorney at Law
  5. V.Thirukumaran –              Attorney at Law
  6. DouglasSiyani –               Attorney at Law
  7. DusaniSampanthan – Attorney at Law, Lecturer in law, University of Jaffna
  8. Janakan Muthukumaru – Attorney at Law, Lecturer in law, University of

Jaffna

  1. S.Kumaravel –                    Medical Officer, Jaffna
  • A.Thamarachchelvi – Development officer
  • S.Vimaleswary – Retired Youth service officer
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