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Published online by Cambridge University Press: 11 May 2020
What lessons can we learn from the way in which the South African experience of transformative constitutionalism was invoked in Sri Lanka's recent constitutional reform experience? What conditions allow experiences of transformative constitutionalism to travel? In this article, I respond to these two questions, using Frankenberg's idea of a ‘layered approach’ in comparative constitutional law. My analysis affirms that in the comparative enterprise, a thick explanation that allows each experience to ‘speak for itself’ heightens the value of a comparative example. In the case of South Africa, I demonstrate that transformative constitutionalism is in fact a specific genre of constitutionalism. It demands attention not only to substantive constitutional guarantees and institutional design, but also to the process of constitutional reform. Moreover, effective measures for transitional justice are an essential component of transformative constitutionalism. A closer reading of the South African experience that paid attention to these factors would have led to better use of this experience in Sri Lanka's post-war constitutional governance.
LLB (Hons)(Colombo), LLM (Harvard), PhD (Colombo), Attorney-at-Law (Sri Lanka). Postdoctoral Fellow, ARC Laureate Program in Comparative Constitutional Law, Melbourne Law School; concurrently Senior Lecturer, Department of Public & International Law, Faculty of Law, University of Colombo. A draft of this paper was presented at the ‘Public Law in Four Nations’ conference convened by the Faculty of Law, University of Witwatersrand, South Africa on 2–5 July 2019. I thank Toerien Van Wyk, PhD candidate, Melbourne Law School, for her comments on this paper, and the Academic Research Service at the Melbourne Law School for their research support. Research for this paper was undertaken from April 2019 to August 2019 and was fully funded by the Australian Government through the Australian Research Council (ARC) Laureate Program ‘Balancing Diversity and Social Cohesion in Democratic Constitutions’.
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39. The independent commissions are the Elections Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery and Corruption, the Finance Commission, and the Delimitation Commission: Seventeenth Amendment to the 1978 Constitution, Schedule to art 41B. The high offices are those of the Chief Justice and the judges of the Supreme Court, the President and the judges of the Court of Appeal, members of the Judicial Service Commission, the Attorney-General, the Auditor-General, the Inspector-General of Police, the Parliamentary Commissioner for Administration, and the Secretary-General of Parliament: Seventeenth Amendment to the 1978 Constitution, Schedule to art 41C.
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44. The 1978 Constitution, art 107(3) provides that Parliament ‘shall by law or by Standing Orders’ provide for all matters relating to the impeachment of judges of the appellate courts. The procedure in place for impeachment has been established by way of a Standing Order. It provides that a Parliamentary Select Committee (PSC) should investigate and determine the allegations made against the judge in question. In the case of Chief Justice Bandaranayake, the government of the day followed this procedure; however, the Chief Justice was not afforded the guarantees of natural justice during the hearings before the PSC.
45. For instance, it was described as a ‘threat to the independence of the justice system’ by Gabriela Knaul, the United Nations Special Rapporteur on the independence of judges and lawyers. See ‘UN independent expert concerned over reports of intimidation of judges in Sri Lanka’ (UN News, 31 December 2012) <https://news.un.org/en/story/2012/12/429212-un-independent-expert-concerned-over-reports-intimidation-judges-sri-lanka> accessed 31 Mar 2020.
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47. The reports commissioned by the Secretary-General are the Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka (31 March 2011) and the Report of the Secretary-General's Internal Review Panel on United Nations Action in Sri Lanka (November 2012). The relevant reports by the UN Office of the High Commissioner for Human Rights (OHCHR) are: A/HRC/22/38 (11 February 2013); A/HRC/25/23 (24 February 2014); A/HRC/30/61 (28 September 2015); A/HRC/34/20 (10 February 2017); and A/HRC/37/23 (25 January 2018).
48. The Commission found that human rights violations such as enforced disappearances and extra-judicial killings were the acts of individual members of the armed forces and not in furtherance of a policy. See Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (November 2011), para 4.282 ff <http://slembassyusa.org/downloads/LLRC-REPORT.pdf> accessed 31 Mar 2020.
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51. For a discussion of these developments see Bhavani Fonseka et al, ‘Two Years in Government: A Review of the Pledges Made in 2015 through the lens of Constitutional Reform, Governance and Transitional Justice’ (Centre for Policy Alternatives, February 2017) <https://www.cpalanka.org/wp-content/uploads/2017/02/2-February-2017-FINAL-REPORT-.pdf> accessed 31 Mar 2020.
52. Notable among these reforms are the Right to Information Act (Act No 12 of 2016), the Office of the Missing Persons Act (Act No 14 of 2016), and the International Convention for the Protection of All Persons from Enforced Disappearance Act (Act No 5 of 2018).
53. For an analysis of the Nineteenth Amendment, see Welikala, Asanga (eds), The Nineteenth Amendment to the Constitution: Content and Context (Centre for Policy Alternatives 2016)Google Scholar.
54. Resolution adopted 9 March 2016 by the Eighth Parliament of Sri Lanka, as recorded in 2(243) Parliamentary Debates (Hansard) 212 ff.
55. Six sub-committees were appointed by the Constitutional Assembly on the following themes: fundamental rights, the judiciary, law and order, public finance, public service, and centre-periphery relations.
56. This Committee was appointed by the Cabinet of Ministers on 22 December 2015.
57. The 1978 Constitution, art 82.
59. The report was submitted by 10 May 2016.
60. Interim Report of the Steering Committee of the Constitutional Assembly of Sri Lanka (21 September 2017) <http://constitutionnet.org/sites/default/files/2017-09/Interim%20Report%20of%20the%20Steering%20Commmittee%20of%20the%20Constitutional%20Assembly%20of%20Sri%20Lanka_21%20September%202017.pdf> accessed 31 Mar 2020.
61. Subsequent to the Nineteenth Amendment, the President's power to dissolve Parliament could be exercised only after 4.5 years of the term of Parliament had elapsed: 1978 Constitution, art 70(1). This effectively meant that the President had no power to dissolve Parliament until March 2020. See Sampanthan v Attorney General SC (FR) 351–356, 358–361 of 2018, SC Minutes, 13 December 2018.
62. On 21 April 2019, six suicide bombers set off bombs in three churches and three hotels in Sri Lanka, leading to over 250 deaths.
63. The new President (the defence secretary up to 2014 and a brother of former President Mahinda Rajapakse) was nominated by a new party, the Sri Lankan Podujana Peramuna [Sri Lanka People's Front] (SLPP). This party was formed during the constitutional crisis. Soon after the election of the new President, the Prime Minister resigned, and the former President Mahinda Rajapakse was appointed as the new Prime Minister.
64. Nine provincial councils were established through the Thirteenth Amendment to the Constitution. This Amendment was enacted pursuant to the Indo-Lanka Accord signed between India and Sri Lanka, in which the Sri Lankan Government committed to constitutional reform for the devolution of power. The devolution of power was for the purpose of providing a political solution to the separatist demands by the Liberation Tigers of Tamil Eelam (LTTE). However, the Thirteenth Amendment has been criticised for failing to provide an effective solution to the ethnic conflict. See in this regard Rohan Edrisinha, ‘Debating Federalism in Sri Lanka and Nepal’, and Welikala, Asanga, ‘Constitutional Form and Reform in Postwar Sri Lanka: Towards a Plurinational Understanding’, both in Tushnet, Mark & Khosla, Madhav (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015) 291, 320Google Scholar.
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68. Final Report of the Consultation Task Force on Reconciliation Mechanisms, vol 1 (17 November 2016), vii <http://war-victims-map.org/wp-content/uploads/2017/02/CTF-Final-Report-Volume-I-Nov-16.pdf> accessed 31 Mar 2020. The Task Force was appointed in January 2016.
69. Report on Public Representations on Constitutional Reform (May 2016), 28 (referring to the South African Constitution, art 2) <http://constitutionnet.org/sites/default/files/sri_lanka_prc_report-english-final.pdf> accessed 31 Mar 2020.
71. Final Report of the Consultation Task Force on Reconciliation Mechanisms (n 68) 114.
75. See Report on the Second Mandate of the Presidential Commission of Inquiry (n 67). This Commission was initially appointed in August 2013 and its mandate was extended in July 2014.
76. See Interim Constitution of South Africa Act 200 of 1993 (as amended by Act No 2 of 1994 and Act No 3 of 1994), sch 4.
77. For a critical assessment of the public participation process in the South African constitution-making process, see Synnove Skjelten, A People's Constitution: Public Participation in the South African Constitution-making Process (Institute for Global Dialogue 2006).
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85. The two Members of Parliament (MPs) who led the process for constitutional reform were Dr Jayampathy Wickramaratne PC and MA Sumanthiran PC. MP Wickramaratne was nominated to Parliament by the United National Party (UNP) through the National List. MP Sumanthiran represents the Tamil National Alliance and was elected from Jaffna, the urban centre of the Northern Province of Sri Lanka. Both MPs are senior lawyers who entered the arena of representative politics in the last decade.
86. For an assessment of public perception, among others, of constitutional reform, see ‘Opinion Poll on Constitutional Reform: Top Line Report’ (Social Indicator, Centre for Policy Alternatives, March 2017) <https://www.cpalanka.org/wp-content/uploads/2017/04/Rapid-survey_final-report_March-2017.pdf> accessed 31 Mar 2020.
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90. Examples include the Illankai Tamil Arasu Kachchi [Lanka Tamil State Party, commonly known in English as the Federal Party], the Sri Lanka Muslim Council, and the Jathika Hela Urumaya [National Sinhala Heritage Party].
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93. The two exceptions are the Inkatha Freedom Party (IFP) and the Afrikaner People's Front. See Sparks, Allister, Tomorrow is Another Country: The Inside Story of South Africa's Negotiated Revolution (Mandarin 1995) 230Google Scholar.
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104. ibid 104 ff. The sectors were: judiciary and legal systems, business, children's rights, traditional authorities, religious groups, youth, labour, women, national machinery and the advancement of women, local government, socio-economic rights, and land rights.
105. Ebrahim & Miller (n 101).
108. ibid 159. See also generally South Africa History Online, ‘Chapter 13 – The public participation process’ (1 September 2019) <https://www.sahistory.org.za/archive/chapter-13-public-participation-process> accessed 31 Mar 2020.
109. Ebrahim & Miller (n 101) 111.
110. For a discussion of this initiative, see ibid 91 ff.
113. See eg Alexander Edward Hudson, The Impact of Public Participation in Constitution Making (PhD dissertation, University of Texas at Austin 2018) 46 ff.
114. The themes were: nature of the state, form of government, basic structure of the constitution, fundamental rights and directive principles of state policy, legislature, supremacy of constitution or parliament, separation of powers, independence of the judiciary and the court structure, constitutional court, devolution and local government, sharing of power at the centre, constitutional council and independent commissions, public service, electoral reforms, judicial review of legislation, powers of president under parliamentary system, election of president under parliamentary system, public security, finance, and any other issues. See Report on Public Representations on Constitutional Reform (n 69) 211.
115. Report on Public Representations on Constitutional Reform (n 69) iii.
117. For a detailed analysis of these proposals, see Mario Gomez et al, ‘Constitutionalising Economic and Social Rights in Sri Lanka’ (CPA Working Papers on Constitutional Reform No 7, September 2016) <https://www.cpalanka.org/wp-content/uploads/2016/09/Working-Paper-7.pdf> accessed 31 Mar 2020; Tom G Daly, ‘A Constitutional Court for Sri Lanka? Perceptions, Potential and Pitfalls’ (CPA Working Papers on Constitutional Reform No 15, April 2017) <http://constitutionalreforms.org/wp-content/uploads/2016/06/CPA_WP_CR_No_15_Final-TDrevno-tracks.pdf> accessed 31 Mar 2020.
118. See eg ‘Introduction’, in Report of the Sub-Committee on Fundamental Rights (Steering Committee of the Constitutional Assembly of Sri Lanka, November 2016) <https://www.colombotelegraph.com/wp-content/uploads/2016/11/01-Fundamental-Rights-ste-1.pdf> accessed 31 Mar 2020.
119. See in this regard CA Chandraprema, ‘Radical changes in the Judiciary: New draft constitution – part 4’ The Island (7 August 2018) <http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=189224> accessed 31 Mar 2020.
120. Discussions at the public meeting organized by the Sri Lanka Bar Association on ‘The Report of the Sub-Committee of the Constitutional assembly on Fundamental Rights – perspectives on the inclusion of Socio-Economic Rights in the new constitution’, 10 January 2017.
121. Report of the Public Representations Committee (n 69) 100 ff.
122. See eg the Constitution of Nepal 2015 and the Constitution of Kenya 2010.
123. 1978 Constitution, art 9.
125. See Interim Report of the Steering Committee (n 60), Part IV.
126. See generally ibid.
127. See eg Pierre Legrand, ‘The Impossibility of Legal Transplants’ (1997) 4 Maastricht Journal of European and Comparative Law 111.
128. ‘We enter into a covenant that we shall build a society in which all South Africans, both black and white will be able to walk tall, without any fear in their hearts, assured of their inalienable right to human dignity – a rainbow nation at peace with itself and the world’: President Nelson Mandela at his inauguration speech, as cited in Sparks (n 93) 229.
129. Klare (n 16) 150.
131. See eg Moffitt, Benjamin, The Global Rise of Populism: Performance, Political Style, and Representation (Stanford University Press 2016)Google Scholar.
132. See Gunter Frankenberg, ‘Critical Comparisons: Re-thinking Comparative Law’ (n 14).
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