Kumudini Samuel is a member of DAWN’s Executive Committee and is on DAWN’s Political Restructuring and Social Transformation (PRST) team.

An early call for presidential elections in January 2015 served as the impetus to catalyze a wide spectrum of forces, ranging from civil society to cross party political elites, into a coalition that made possible democratic regime change in Sri Lanka. The coalition was based on a platform of good governance, anti-corruption, opposition to dynastic politics, and abolishing the all-powerful executive presidency. Critical to this mobilization was a stranglehold on dissent, and triumphalist majoritarian, and nationalist authoritarianism exercised by incumbent President Mahinda Rajapakse.

Winning the Presidency as the common candidate of the opposition Maithripapa Sirisena and the new Prime Minister Ranil Wickremesinghe consolidated their alliance with a victory at the Parliamentary elections of August 2015. They established a national unity government and moved to bring in a Constitutional amendment to curb Presidential powers and establish independent commissions dealing with human rights, elections, corruption, the public service, police and the judiciary among others. The new government also attempted to restore media freedom and ended the culture of white van abductions of media and political opponents. It also began the slow process of demilitarizing the north and east and restoring some State acquired land to civilians. Investigation commenced into corruption and political killings and the government unfolded an ambitious plan to revive the economy. A year into office it begin the process of constitution making and commenced work on identifying mechanisms for transitional justice central to democracy, national unity and reconciliation.

Making the democratic change possible was a rainbow coalition of civil society groups and mobilizations ranging from key trade unions, human and women’s rights organisations, families of the disappeared, environmentalists and economic rights disability rights and cultural activists, academics, persons of diverse sexual orientation and gender identities, youth and ethnic minority groups from Tamil and Muslim communities. This concerted civil society engagement to ensure democratic regime change opened up the possibility of a process of political negotiation for State reform, political restructuring, and anticipated social transformation. Civil society and women utilized this political space to ensure that marginalized groups, including women, have greater voice and representation in nation building than ever before.
Constitutional Reform

In 2016, a Public Representations Committee on Constitutional Reform (PRCCR) was established and consulted widely on Constitution making. A new Constitution is critical to state reform and a solution to Sri Lanka’s protracted ethnic conflict. At the heart of this deliberation is the sharing of power between the center and the periphery; the nature of the state – whether unitary or federal; the nature of the executive and the need to check its excessive powers and a new electoral system that is inclusive and representative. As the Constitution making process opened up, women’s organizations from across the country mobilized to make individual and collective representations to the PRCCR at national and district levels.

They called for recognition of the inherent and individual dignity, autonomy, and personhood of every person. Women’s right to life, bodily integrity, and protection from violence without reservation, women said, should be specifically recognized. They called for an inclusive equality clause that protected marginalized groups including people of diverse sexual orientation and gender identity from discrimination. As the report of the PRCCR noted , women’s representations covered all areas of the Constitution and in general “women from all parts of the country called for the recognition of Sri Lanka as a plural, multi-cultural and multi-religious country” Women also “argued for the democratization of the polity, peace, reconciliation, nondiscrimination, equality including equality of opportunity” (p.115). As a consequence the PRCCR recommend that the Bill of Rights should include a special section on Fundamental Rights for Women and called for the establishment of an independent Women’s Commission. Significant in the PRCCR process was that while men were more concerned with state reform and devolution of power, women focused on who would wield power and how power would be exercised and directed their attention to social justice concerns, personal and economic security, including rights to land and employment, health, education, and environmental justice.

While the PRCCR process was very inclusive the next stage of Constitution making is inevitably less so. Parliament is now also constituted as a Constitutional Assembly and six sub-committees and a steering committee are drafting the Constitution. Political representation across ethnic and political divides must now come together to negotiate and inevitably compromise to reach a consensus. The new Constitution requires a 2/3rd majority in Parliament and must be endorsed at a referendum. Women are already experiencing setbacks. While the sub-committee negotiating the Fundamental Rights chapter did include provisions for socio-economic rights and expanded an inclusive equality clause, it chose to ignore the PRCCR recommendation for a specific articulation of women’s fundamental rights. Despite strong submissions from women, their predominantly male representatives in Parliament chose yet again to deny women stronger protections under the Constitution. Patriarchal discrimination prevailed and it appeared easier to accede to specific rights protection for children, the elderly and the disabled than to women.

The Fundamental Rights chapter is also silent on the establishment of an independent Women’s Commission, essential to ensure policy coherence, equality, nondiscrimination, investigation and monitoring to protect and promote women’s rights. Also, critically, while recommending repeal of Article 16(1) of the Constitution (which does not allow for judicial review and repeal of discriminatory laws), the sub-committee proposed an exemption for Personal Laws (including the Muslim Marriage and Divorce Act – MMDA) despite numerous submissions and appeals by Muslim women’s groups calling for its repeal. Muslim personal law reform has been fraught with contention and a commission has been studying its review since 2009. Constitutional Reform provided the best opportunity for progressive change but the State continues to give greater weight to the opinions and recommendations of male Muslim MP’s and religious leaders, rather than Muslim women’s groups and women and girls directly affected by MMDA. Reform of discriminatory personal law continues to be considered a politically sensitive issue. There is a perception that these laws are ‘customary’ and reform will infringe cultural or religious sensitivities despite the clear information base on influences of colonial law on the customary laws.

With these setbacks, the lack of significant political representation for women has yet again surfaced in the Constitution making process where Parliament, with less than 6% women, will now decide the fate of Constitutional Provisions. Making submissions before the PRCCR women called for redress of historic discrimination in politics through affirmative action in an entrenched clause in the Constitution.

These recommendations were strongly articulated in the report of the PRCCR. However we are yet to know what provisions will feature in the draft on electoral reform now mired in partisan political bargaining by MPs. Away from Constitution making in what has been hailed a somewhat double-edged victory for women is a legislative amendment allowing for the appointment of 25% women to Local Authorities. Currently represented by less than 100 women, this requirement will see an increase of approximately 2100 women local counselors if the much delayed local government elections are held according to this amendment. While welcoming this affirmative measure women’s groups and women within political parties are also asking that their right to contest elections is protected and that women are guaranteed equitable nominations to contest the 60% first past the post seats as well. Representation is a critical issue for women but equally critical is the urgent need to ensure voice for women at decision making levels within political parties and a serious strengthening of internal democracy and transparent governance within them.

Transitional Justice

The transitional justice process also allowed women across ethnic identities to work together. They made representations before a Consultative Task Force (CTF) and Zonal Task Forces (ZTF) seeking public views on potential mechanisms for truth seeking, justice, reparations, and non-recurrence. For women working on conflict, transitional justice is a critical concern. It includes both restorative justice and redistributive justice stemming from a deep concern to seek redress for civil and political rights harms, but also socioeconomic rights harms. Over 7300 submissions were made to the CTF/ZTF. Many persons expressed frustration at the lack of answers despite numerous testimonies to various earlier established commissions. They questioned continued lack of accountability for crimes of the past which entrenched impunity. Yet they hopefully expressed a strong desire to be part of both the design and implementation of mechanisms for justice and reconciliation that would be created. They also wanted to know the fate of missing loved ones; truth about disappearances and killings; State acceptance and accountability. They spoke of reparations both material and symbolic and from all ethnic communities came the call for confidence building and reconciliation. Constitutional reform that will bring about a sustainable solution to the ethnic conflict was a key factor, and demilitarization together with the repeal of draconian legislation such as the Prevention of Terrorism Act and the return of land appropriated by the military were foremost in many submissions.

The comprehensive and sensitively written CTF report, released in January 2017, proposed a range of recommendations in relation to the four pillars of its mandate, the establishment of an Office for Missing Persons (OMP), a truth and reconciliation commission, an office for reparations and non-recurrence. They called for legislation for the mechanisms, strengthening existing legislation for the OMP, a strong victim-witness protection law and a strengthening of access to justice and the rule of law. It set out a range of confidence building measures that could be applied immediately through meaningful outreach across all communities including measures for grieving, memorialization and reconciliation. This process of transitional justice demanded by a UN Human Rights Council resolution but more meaningfully representing needs expressed by a large number of citizens affected by conflict, war and political violence, expressed with deep felt hope for healing and non recurrence, truth, justice and reconciliation has disturbingly not resonated with state or partisan politicians.

The report of the CTF is yet to be endorsed with a strong and committed political will to implement its recommendations. Instead political and media response has concentrated more specifically, not on reconciliation, truth and justice, but on recommendations for a hybrid court to deal with accountability and the possible inclusion of international expertise in the court and the prosecutor’s office. In this impasse legislation approved in August 2016 to set up the OMP has yet to be gazetted and the office yet to be established. While there is some expectation that legislation will be drafted to establish an office of reparations and a truth commission, accountability still remains an elusive consideration.

Unmet Promises

A number of electoral promises and expectations remain unmet. Among these the government’s inability to punish or stop violence and hate speech against Muslims instigated by the extremist monks of the Bodhu Bala Sena (Buddhist Power Army) nor stop attacks on evangelical churches; the presence of key officials across the state sector supportive of the policies of the previous regime and blocking progressive reforms is a critical concern. Similarly it is believed military non-corporation has stalled progress in a number of investigations into disappearances and extra judicial executions. The inability of the current government to significantly reduce militarization in the north and east in particular and the proposed replacement of the Prevention of Terrorism Act with a Counter Terrorism Act drafted in the main by a committee of military and police officials is a troubling indication of the military’s continued role in State and politics.

A perceived fundamental failure has been the government’s inability to bring about any promised economic relief to a vast majority whose living standards are steadily deteriorating as the government struggles with a huge debt burden inherited from the previous regime. Current policies of economic liberalization come with high social and political costs in the form of higher taxes, privatization, withdrawal of subsidies, and trade and investment policies that give politically controversial advantages to exploitative foreign companies and governments. And public disaffection continues with the government’s inability to investigate and prosecute rampant corruption of the previous regime nor prevent corruption among its own. The main saving grace of this period is a very comprehensive and far reaching Right to Information Act that has just been adopted.

The rainbow coalition of CSOs will now have to be both critical and constructive to force the national unity government to regain the courage of their convictions and be serious about their promises on reform and reconciliation so that Sri Lanka can finally enjoy a just and sustainable peace.