On March 15, a momentous day for Sri Lanka's future passed by in silence. The twenty-member Public Representations Committee ("PRC") on Constitutional Reforms accepted its last public submission to feed into a new national Constitution. The PRC sought inputs from all across Sri Lankan society, in an island-wide exercise that included public sittings, oral submissions over the phone and even receiving comments on Facebook. For the first time in living memory, Sri Lanka asked its own citizens to decide the future of their country.
Sri Lanka is currently on its fourth Constitution since 1931, its third since independence from the British Empire in 1948, and second since it declared itself a Republic in 1972. Whereas the first and second Constitutions of then Ceylon (as Sri Lanka was known prior to 1972) were formed on the basis of public consultations and helped established a peaceful and prosperous nation; post-independence Constitutions of Sri Lanka were promulgated on the people by governments. They stand today as examples of failure in constitution-making -- eventually turning the pearl of the Indian Ocean into its teardrop.
Since the end of its brutal civil war in 2009, and the resurgence of democratic governance after President Maithripala Sirisena's historic election in January 2015, Sri Lanka has been pursuing a nation-building programme. Led by its astute and technocratic Prime Minister Ranil Wickremasinghe, Sri Lanka understands it needs restructuring if its governing structures are to last. As Prime Minister Wickremasinghe himself said, "Sri Lanka needs a Constitution for the 21st century" that meets the aspirations of all her people, a Constitution that enshrines the proud democratic traditions of her history, a Constitution that leaves no one behind.
One of the final submissions to be received by the PRC, on its closing day, called for the constitutional process to "bear testimony to the inherent dignity of LGBTIQA people in Sri Lanka" and to recognise that "all Sri Lankans are equal in their liberty and their dignity". This landmark appeal, by a collective of individuals, was in addition to unprecedented submissions received from all districts in the island calling for the express inclusion of sexual orientation and gender identity in the equality and non-discrimination provisions of Sri Lanka's proposed Constitution. A number of submissions also called for the supremacy of the proposed Constitution and to remove the arbitrary powers of politicians to derogate individual liberties. All of these calls were in light of the fact that Sri Lanka remains amongst the 78 jurisdictions worldwide that continue to criminalize same-sex sexual relations between consenting adults.
During its periodic review by the UN Human Rights Committee in October 2014, the Sri Lankan Government stated that LGBT persons are protected from discrimination. They argued that Article 12 of the present Constitution implicitly protects persons from discrimination on the basis of sexual orientation and gender identity. However, Sri Lanka's submissions ignored the impact of Article 16 of its current Constitution, which reads that "all existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency" with the Constitution, giving supremacy to existing laws (including its 19th century laws that criminalize homosexuality) over constitutional interpretation and precluding judicial review. Article 16 therefore effectively invalidates the equal protection implied towards LGBT persons in Sri Lanka under Article 12.
For too long Sri Lanka's LGBT community have been excluded from the recognition and protections that they deserve. A community made unequal under the law by criminalization. The present PRC process, however, clearly demonstrates that Sri Lankans of all sexualities and gender identities are committed to fairness and to preventing the same injustices from repeating themselves whilst reshaping our nation.
Our political leaders have consistently failed to make Sri Lanka the inclusive, peaceful and prosperous country that it was meant to be. At its time of independence, the island nation was a model of peaceful transition to self-governance and a symbol of hope to many. However, short-sightedness, prejudice and our inability to respect those different to us have left a fractured society, scarred by a generation of civil war.
But this year, Sri Lankans have the chance to take their destiny into their own hands. A chance to reshape our country so that we do not repeat the mistakes of our past. By enshrining the fundamental dignity of each Sri Lankan into our Constitution, we have the chance to create a new Sri Lanka -- a Sri Lanka that is better for everyone, whether you're Sinhalese or Tamil, a man or a woman, gay or straight.