By Ahilan Kadirgamar, Lakmali Hemachandra, Mahendran Thiruvarangan, Niyanthini Kadirgamar and Swasthika Arulingam on behalf of the Collective for Economic Democratisation
The current process of constitutional reform has given much needed importance to concerns such as structures of the State, rule of law, separation of powers and power sharing arrangements. However, such an approach to Constitution-making has ignored a major concern for the people, of economic depravity and harm caused by development projects.
Constitutional mechanisms to address the problems arising from economic development policies of the Government have largely remained unexplored. Mega development polices rarely benefit those marginalised by class, caste, gender and ethnicity. Rather such projects deepen the marginalisation through dispossession of land, property, livelihoods and environment. The overall impact of such development can be greater inequalities and increasing marginalisation of larger segments of society.
Centralised Unitary State and Mega Development
The political structures that were consolidated with the 1978 Constitution have led to centralised, authoritarian state power resulting in attacks on minorities and economic dispossession of marginalised communities. The call for the abolition of the executive presidency and greater devolution have been towards ensuring the political rights in a democracy undermined by the legacy of authoritarian power, and the democratic participation of minorities and those living in the regions.
A much neglected aspect of the constitutional debate on a centralised, unitary State with an Executive Presidency is the manner in which it contributes to unaccountable development policies. For example, the largest development project in the history of the country initiated in 1978, the Accelerated Mahaweli Development Scheme and related land development and colonisation policies, led to real and perceived acts of discrimination against the minorities in the Dry Zone. In this context, ensuring that mega-development and urban-development projects do not lead to the dispossession of marginalised communities would call for the abolition of Executive Presidency and ensuring a non-unitary structure of the State.
Indeed, the unitary structure of the State results in the bureaucracy and even the judiciary addressing a range of issues from industrial development, agriculture to education with a centralised mind-set.
Therefore, a constitutional structure that seeks to reverse the history of uneven development and rising inequalities needs to abolish the Executive Presidency and remove the unitary structure of the State entrenched in our current Constitution. Such changes will be an important check on the unrestrained use of state power for development that may cause harm to marginalised communities. However, particularly in the era of liberalisation, mega development projects backed by powerful donor agencies and financial interests have overwhelmed constitutionally devolved powers.
Hence, there is also the need for constitutionally-mandated mechanisms to address the grievances of the people, mediate between the state and the people and address calls for redressal in relation to development projects.
It is such a concrete mechanism that is the focus of this submission.
Limitations of Judicial Redress and the Rights Framework
Economic, social and cultural rights should be enshrined in the Constitution to give due recognition to the concerns of marginalised communities. However, judicial redress through a rights-based approach is limited by narrow interpretations afforded through the notions of ‘rights violations’ and/or the ‘imminent infringement of rights’. Furthermore, judicial remedies are costly, complicated and long drawn, leaving the most deserving out of its purview. Persons challenging the harmful impact of development projects are forced to wait till the project commences before seeking judicial remedy. For example, the fishermen challenging the Port City project in the Supreme Court were unable to address threats to livelihoods or damage to the environment directly, as their demands had to be limited to the rights guaranteed under the Constitution.
Centralised and Accelerated Development Policies
Development policies are formulated and are predominantly driven by the Central Government with little consultation with the people in the regions.
Often, they are fast paced, mega infrastructure projects commencing and concluding in short periods of time. Indeed, the lack of proper consultations has resulted in displacement of communities, without provisions for adequate compensation or suitable alternatives to restart their lives.
In post war Sri Lanka, the acceleration of urban and mega development initiatives increases the risk of displacement and economic depravity. Such unjust economic policies could lead to resistance and unrest. How does this new Constitution seek to address the pressing economic and development concerns? What mechanism can it include to ensure the non-occurrence of another “Rathupaswala” incident and better handling of people’s concerns? We are seeing ongoing mobilisations around a similar incident of water pollution in Chunnakam, and a massive protest by the fishing community in Vadamarachchi East against the proposed desalination plant. The forcible eviction of the residents of Thotalanga in the wake of a massive urbanisation plan is another example for rising fears of depravation.
Even as the State takes steps towards better governance and reconciliation, it is crucial that harm inflicted by development policies does not lead to further alienation of the people. Rather, the inclusive and democratic prerogatives of constitution-making require political structures that engage people’s concerns about development projects.
Need for a Constitutional Body
Given these concerns there is the need for a constitutionally-mandated body, which can act as an intermediary between the State and the people, mediating and addressing concerns pertaining to economic development initiatives. Therefore, we propose a ‘Commission to Address Economic Development Grievances.’
This body may take the form of an existing Constitutional Commission, with a panel of Commissioners appointed by the Constitutional Council. The Commissio-ners will be persons who have experience working with marginalised segments of society and can be drawn from a wide group of persons including professionals, activists and academics. The Commission should have regional presence with offices set up in each province.
The regional offices may be entrusted to take forward activities which include the following:
1) Ensure wide information dissemination within the province on the Government’s development plans which will impact the province or individual districts within the province.
2) Convene consultations and meetings with concerned citizens, district and provincial level officials on contested development projects.
3) Raise development concerns of the people to the Government and advocate for reformulating development priorities.
4) Empower to obtain compensation and relief for any person affected by such development projects.
Given the similarity of the proposed Commission to the Human Rights Commission, both Commissions could be housed in the same office. However, the functions of the proposed ‘Commission to Address Economic Development Grievances’ is qualitatively different in that it seeks to disseminate information and mediate the workings of economic development.
It is commendable that the new Government has taken steps to repair the damaged political fabric of the country by adopting a participatory approach in the drafting of the new Constitution. It is crucial that in this constitutional process the Government also addresses concerns arising from economic development. We hope that the need for a structure which is recognised by the Constitution can be met through the formation of a Commission to Address Economic Development Grievances.
This piece was published in the Sunday Times on 20 Mar 2016.