by Dr Nirmala Chandrahasan
In a recent article in The Island captioned “Alleged war crimes lame excuse to introduce new Constitution”, the writer puts forward the view that the process initiated by the previous UNF government to draft a new Constitution, with the Parliament constituting itself into a Constitutional Assembly in 2016, was as a result of the UNHRC Resolution on “Promoting Reconciliation Accountability and Human Rights in Sri Lanka” of 2015. This resolution which was adopted by consensus in the United Nations Human Rights Council and co-sponsored by Sri Lanka, along with the United States, has been subsequently reaffirmed in the Council in the succeeding years. My article is a refutation of the above view.
It is a well documented fact that the process of constitutional reform commenced nearly 30 years ago. From the time that the 1978 Constitution was passed, setting up an Executive Presidential form of government, there has been opposition thereto in this country. The Sri Lankan people had experienced a Parliamentary form of Government under the Westminster model for many years, and people were not happy with a form of government with so much power concentrated in the hands of one person. As President Jayewardene, who was the chief proponent of the 1978 Constitution, was to say, it gave him the power to do everything except change a man into a women and vice versa. Furthermore, this was a Constitution in the making of which the representatives of the Tamil people had not participated. Hence this was another reason for making a new Constitution which would be acceptable to all sections of the people of the Country.
At every general election, since 1977, the need for constitutional change has been an issue and the party in Opposition made a campaign promise to do away with the executive Presidency and the 1978 Constitution. At the 1994 presidential election, the SLFP and its allies, named as ‘the People’ Alliance’, under the leadership of Chandrika Kumaratunga, pledged to do away with the executive presidency and to introduce constitutional reforms. In 2000, the PA Government presented the Constitutional Reform Bill for a new Constitution in Parliament. The proposed constitution not only sought to do away with the executive presidency but also addressed the need for greater power sharing and devolution of powers to the provinces, a process which had been initiated by the 13th Amendment to the Constitution during the Jayewardene era following the 1987 Indo- Sri Lanka Accord.
The Constitution Reform Bill of 2000 had the support of all the members of the PA government, i. e. the SLFP and its allies the MEP and the left parties. It was a very forward looking document which envisaged a greater devolution of powers and a Union of Regions. While it was being formulated it had received the support of the United National Party under the leadership of Ranil Wickremesinghe. However, when the Bill was introduced in Parliament the UNP opposed it citing the transitional provisions in the Bill under which the sitting President would continue to exercise the executive powers for the remaining period of office as the reason. It would appear that the actual reason was the opposition of some sections of the Buddhist clergy to the Bill. The UNP withdrew its support and copies of the Bill were even burnt in Parliament by UNP members. The Prime Minister and leader of the UNP at the time was Ranil Wickremesinghe. Sadly the TNA members found themselves unable to vote for it because of the LTTE’s opposition to the Bill.
The constitutional reform project has been on the anvil for a long time starting with the 13th Amendment to the Constitution during the presidency of Mr Jayewardene, and continuing with the Mangala Moonesinghe Select Committee report with proposals for greater devolution, during the Premadasa presidency.
This was followed by the Chandrika Kumaratunga Constitution proposals and the Constitution Bill of 2000. Mahinda Rajapaksa, who took over the Presidency after the 2005 elections, also, initiated a process of constitutional reform. In 2006, he set up the All Party Representative Committee APRC, under the Chairmanship of Prof. Tissa Vitharne, together with the multi ethnic Experts Committee to assist them. The Experts Committee subsequently submitted its Majority Report in 2006. The APRC after deliberating on this report and other matters submitted its report in 2010, incorporating many of the recommendations of the Experts Committee’s Majority Report.
One of the recommendations of the APRC was the return to the parliamentary form of government and doing away with the executive presidency. The following parties namely the SLFP, the MEP, the JHU, the LSSP, the CP, the SLMC, the CWC, the Upcountry People’s Front, All Ceylon Muslim Congress, the Western Peoples Front, the Ealam People’s Democratic Party and the Thamil Makkal Viiduthalai Puligal were all represented in the APRC and parties to the Report. The Report had the support of all the parties in Parliament except the UNP and the TNA. It is therefore not surprising that members of the SLFP and the SLPP participated in the Constitutional Assembly of 2016 and sat on the different Committees set up under it, in the context that these parties had approved the Constitution Bill of 2000 and the APRC Report of 2010. What is surprising is that the UNP had participated in and undertaken a Constitution reform project. I might mention that the LLRC (the Lessons Learnt and Reconciliation Commission) set up by President Mahinda Rajapaksa calls for constitutional reform and the need for power sharing. Unfortunately, these excellent reports were not implemented during the period of the UPFA government. The UNF government, in 2015, started on the process of drafting a new constitution, reinventing the wheel as it were, when they might have just given effect to the APRC report.
At the presidential election, in January 2015, the issue of constitutional change and abolishing of the Executive Presidency were once again taken up by the Opposition parties. The Opposition’s Common Presidential Candidate, Maithripala Sirisena, pledged to do so. He went on to win the presidential election, and thereafter the UNF won the parliamentary elections in October 2015. In 2016 the UNF government passed the 19th Amendment in pursuance of the undertaking they had given. This amendment made some changes to the powers of the President, but it did not do away with the executive presidency, one of the key election promises. In pursuance of this objective and to enable greater power sharing through devolution, the constitutional reform project was commenced once again, with Parliament constituting itself into a Constituent Assembly, in 2016, with the concurrence of all the parties, including the Opposition.
It must be noted that the UNHRC Resolution was passed only in October 2015, whereas the constitutional reform project as we see above has been on the anvil for a very long time. Hence it could not have been the reason or as the article says the “excuse to introduce a new Constitution”. There seems to be a misconception about the Human Rights Council and its role. It is not a body which is set up to persecute any particular country. It is an intergovernmental body within the UN System responsible for strengthening the promotion and protection of human rights around the world, and for addressing situations of human rights violations and making recommendations on them. In situations of civil wars and armed conflicts there are not only violations of human rights but also of International Humanitarian law, i. e. the laws of war, and this body also addresses these violations. Membership is based on equitable geographical distribution, and the states elected as members of the Council are from the different geographical regions, namely Africa, Asia Pacific, Latin America and North America Western Europe and Eastern Europe. The Council consists of 47 countries elected for three year terms by the General Assembly of the United Nations. In the 2015 Council there were countries such as Botswana, Nigeria, Pakistan, Bangladesh, India, Japan, China, Estonia, Ireland, the USA, etc. Besides discussing topics concerning the promotion of human rights in general, the Council also conducts specific scrutiny of countries where there are allegations of human rights violations or violations of humanitarian law during internal armed conflicts. In these instances resolutions may be passed. Israel for example has been condemned in many resolutions, as for example its military reprisals in Gaza in Palestine. The HRC was set up in 2006 and in the period from 2006 to 2015 it has initiated country specific reports/Resolutions, concerning Israel/Palestine, Syria, Sudan, Libya, Eritria, Lebanon, Cote D’ivore, North Korea and Sri Lanka. It will be noted that in most of these countries there had been internal armed conflicts. More recently in 2019, the Council has had country specific scrutiny on Chinas policy in Xinjiang province towards the Uyghur minority as also Myanmars (Burma’s) treatment of its religious minorities. Hence one can hardly say that the Council has been selective in scrutinising Sri Lanka.
The UNHRC Resolution 30/1 of 2015, titled “Promoting Reconciliation Accountability and Human Rights in Sri Lanka” is not a confrontational or condemnatory one, possibly because it was co-sponsored by Sri Lanka. The resolution has been framed in terms of encouraging Sri Lanka to undertake a comprehensive package of judicial and non-judicial measures necessary to advance accountability and reconciliation in Sri Lanka as well as to strengthen protection of human rights, democracy and the rule of law. The resolution states “recognising also that a credible accountability process for those most responsible for violations and abuses will safeguard the reputation of those, including the military, who conducted themselves in an appropriate manner with honour and professionalism.” It then goes on to state “recalling the responsibility of states to comply with their relevant obligations to prosecute those responsible for gross violations of human rights and serious violations of International Humanitarian law (Laws of War) Constituting crimes under international law with a view to ending impunity, welcoming the commitment of the Government of Sri Lanka to the devolution of political authority, Requesting the Government of Sri Lanka to implement effectively the constructive recommendations made in the LLRC Report.”
The focus of the resolution is as we may see on the question of addressing and punishing violations of human rights and Humanitarian law, where they may have occurred, keeping in mind the responsibility of states to comply with their international obligations. The Report also in section 7 makes reference to the LLRC, which was a home-grown Sri Lankan Commission appointed by President Mahinda Rajapaksa. The resolution encourages the GOSL to implement effectively its own commitments to the report of the LLRC as well as the recommendations of the report of the OHR. Interestingly, we have here the Council advising the government to implement the recommendations of its own Sri Lankan Commission. The resolution does not concern itself with constitution making except in so far as it aids in the process of reconciliation, which is one of its main recommendations. Accordingly section 16 states and I quote “welcomes the commitment of the GOSL to a political settlement by taking necessary constitutional measures, encourages the Government’s efforts to fulfil its commitments on the devolution of political authority which is integral to reconciliation and the full enjoyment of Human Rights by all members of its population.”
It is stated in the article critiqued that “the Geneva resolution was based on a pack of lies”. I will not examine the veracity of this statement as it is outside the ambit of my article. However, I would draw the attention of the reader to the composition of this Council, which is made up of state parties who can be expected to act responsibly. The resolution itself was passed unanimously. Sri Lanka as a non-aligned country has had good relations with all the states which were members of the Human Rights Council in 2015, and there was no hostility towards Sri Lanka from these States. We can conclude that there was some credible evidence on which the resolution was framed.