There is no draft

19 January 2016 06:30 pm Views - 3040

The Dailymirror was in conversation with Dr. Jayampathy Wickramaratne PC  and Member of Parliament on the recent changes in  formulating a new Constitution. As well as pointing out the advantages  of such a process Dr. Wickramaratne clarified several allegations that  have arisen with regard to the process.



Q Did the Constitution come up because of a conducive political environment or was it the need of the hour irrespective of any political change?

The contradiction
The present Constitution is based on the executive presidential form of government. With the 19th amendment vast changes have been made, and even before that, changes were made which introduced specific things. The 13th amendment gave powers to the provinces but it was a parliamentary form of government in the provinces with the governor acting on the advise of the Prime Minister whereas at the centre an executive presidency existed. This was a major contradiction. Such cases of different forms of governance in the centre and the periphery are not found in many Constitutions. In the United States it is the executive form for both the centre and the state. In India it is parliamentary form both in the centre and the states. With the 17th amendment more powers of the executive were curtailed and the 19th amendment went further and took away powers from the executive presidency.


The golden opportunity
Now, the President has indicated his willingness to completely abolish the Executive Presidency. So had the UNP and the other parties that contested together. You cannot build a new Constitution on an old foundation. We need a new Constitution suited for a parliamentary form of governance. 

This is also the first time in the history of the country that the two parties have united while being in Government and while being in Government they have come together to adopt a new Constitution. Therefore this is a golden opportunity that cannot be missed.

Our Constitution should have been supreme. In 1972 although it was declared to be supreme we saw that the National State Assembly could pass laws that were inconsistent with the Constitution with a 2/3rd majority. Post-enactment judicial review was taken away. Pre 1972 laws were all validated and inconsistent provisions would continue and in the 1978 Constitution the President was given near total immunity. Therefore the principles of the Constitution were not there in practice.


QWhat changes should be included this time?
These are my own views. All executive, legislative and even judicial Acts violating the Constitution must be declared null and void which means there has to be post-enactment judicial review and there should be no immunity for any executive actions. All existing laws must be made subject to the new Constitution. We may have difficulty in relation to personal laws because that is a sensitive issue so maybe we can exempt it  for now since there are two schools of thought regarding this. 


Q What would be the focal point of this new Constitution?
Parliamentary supremacy is only one aspect. What we also need is a democratic Constitution and to democratize the entire purpose. It should be inclusive in the sense of our multicultural society. We need to get different communities of interest taking part in government. Executive Presidency needs to be completely abolished. We are for a Parliamentary form of government but even in such a form there needs to be certain safeguards against the arbitrary exercise of powers. That is why the independent commissions and the constitutional council process need to be further strengthened. For example through the constitutional council process there will be a national consensus on many of the important aspects. For the country to be democratic by different interest groups being involved in Government devolution needs to be exercised properly. 


Devolution
In regards to devolution it must be not only to the provinces but also to the local authorities and villages. The administration of certain subjects and functions are devolved on the provincial councils and even some subjects can easily be given to the local authorities. Decisions regarding development can be given to the villages themselves by setting up new institutions recognized in the constitution. They can administer certain functions without legislative powers. 

Devolution is not only a solution to the national question but also for solving the issue of uneven development. For example, the level of development in Monaragala is as bad as Mullaitivu. Everything is being done from Colombo. Therefore the periphery should be strengthened and people should be able to take decisions at the local level. Devolution is also for empowering the village level bodies and you will have localized communities who will get empowered such as the local authority area dominated by the Sinhalese in Vavuniya.


Q There have been several allegations against the Constitutional process: The first is as to the Constituent Assembly being unconstitutional and the independence of the Steering Committee with the Prime Minister chairing it.

Constitutional not Constituent
No. It is not a Constituent Assembly but a Constitutional Assembly. This is Parliament itself acting as a committee of the whole house. It won’t have the power to adopt a new Constitution as the Constituent Assemblies had in 1970 and 1972 but it can only come up with a consensus draft that will have to muster a 2/3rd majority. Thereafter it will be certified as any other Constitutional amendment bill and the process laid down in the Constitution would follow. 


Importance of the Steering Committee
When you have the whole house all 225 cannot draft the Constitution therefore there is a steering committee; a 21 member all party committee which will do this headed by the Prime Minister. Even if we had a Select Committee it would be chaired by the Prime Minister and it would come to the same thing. He cannot override the committee because it will be an all party committee that will reflect the composition of Parliament and in any case the whole house will anyway have to vote for it. If it cannot muster a 2/3rd majority the exercise will fall.

There are some groups which don’t want a new Constitution for various reasons. Some want to sabotage the process. Some don’t want to take a stance on it since issues such as poverty and the national question are quite sensitive.


Q Allegations that the preamble is being tampered with so as to ensure executive presidency remains
Some MPs thought that the preamble would give some direction. In my view it is best if we don’t have any preamble at all. Then the Assembly is free to take up any issue of importance.


Q Why can’t we amend our present constitution?
As I pointed out earlier we cannot have extensive Constitutional reform built on this old foundation which is executive presidency.


There is no draft
There are allegation that there is already a draft. I chair the technical committee that assists the Prime Minister and I can categorically state that there is no draft even on a single article! You cannot draft anything until the assembly takes certain decisions. It is only then that you can start drafting. These allegations of a draft are completely false.


Q Will the unitary nature of our country change?
We already have devolution in place. If you ask anyone of the road, a good 90% will say that unitary means an indivisible state and territorial integrity. This is something we all agree on. The country cannot be divided. 


No proper definition
In constitutional law terms however unitary has a different meaning and there also there is no agreement as to what it is. Some say there is no unitary state but instead a unitary form of governance. Earlier unitary and federal were put in separate compartments but now it is seen as a continuance. This is after the experience of the United Kingdom where within the mother of all unitary sates there is extensive devolution. Therefore there is no agreement on it. 
If unitary means indivisible state then I am completely for it.

 Tamils want devolution given to them on the condition that tomorrow the majority cannot take away all powers given to them without the consent of all other communities. If it is unitary in that sense then I also agree that what is given today cannot be negated without the consent of the various groups clamoring for safeguards.

These labels of ‘unitary’ and ‘federal’ are also meaningless. What is important is territorial integrity. There have to be safeguards against cession and there must be powers for the centre to intervene if there is a threat to the country. At the same time these so called safeguards can’t be permitted to be used arbitrarily by the state. Therefore there has to be a reasonable balance.


Q There has been much talk on the necessity and the constitutionality of a referendum. What are your views on that?
Article 75 states that if the present constitution is being repealed by a particular law the same bill must contain the new Constitution to replace the existing Constitution. Therefore this has to be done with just one bill.

Article 83 gives a list of 13 articles and says that the replacement of any of these article will require a referendum. It again speaks of ‘A’ bill for the replacement of these articles needing a referendum. In my view it is clear that this process has to be done by one bill and this same one bill has to be put to the people at a referendum. This has been done by the 2000 Constitutional Bill presented on behalf of the CBK administration by Prof. G. L. Peiris. On the 3rd of August 2000 he presented this Bill which  had a certificate that the entire bill was being placed before the people  at one referendum.

I don’t want to comment on the Professor’s statement on this but certainly Prof. Peiris didn’t advise the Government of that day that there should be 13 different referendums. 

After the 2/3rd majority in Parliament the Bill will be put to the people and they will have to accept it or reject it. Whether to have different referenda or not is governed by the present Constitution and my reading of it is that there can be only one referendum for a Bill or a bill that provides for the repeal of the present constitution and the adoption of a new constitution


Q What is the process of peoples’ participation?
The Public Representation Committee has already started work today and will go around the country having sittings. This has never been done before. I am sure there will be a lively debate and the whole country will benefit as the Parliamentarians themselves will be influenced by the debate. After the initial discussion the draft Constitution will be debated clause by clause by a committee of the whole house. This is unlike a Select Committee because all proceedings will go into the Hansard and all proceedings will be known to the public. It will be very transparent unlike a Select Committee which is very opaque which is why I am not in favor of them.


Q After the Constitution has been formulated would you say education has a role to play in making people aware of the Constitution?
That is a very good point. Students should be taught about it at a very early stage. Unfortunately only students of political science get to know about it. Civic education for the general public will be welcomed


Q What are your views on Article 9 regarding Buddhism?

Not a state religion
A number of non-Buddhists have told me that they did not have much of a problem with the Buddhism clause. The Supreme Court of Sri Lanka in two judgments, one in the famous sound pollution case judged by Chief Justice Sarath N. Silva, has stated that while there is a special place given to Buddhism in the Constitution it does not make Buddhism the state religion. We are a secular state and don’t have a state religion. It has just given a foremost place as the majority religion and most people don’t have an issue with this.

Even one of the latest constitutions, the Nepali one, while declaring the state to be secular also gave prominent status to the traditional religion. The reason for this would be for historical purposes.

For example in Sri Lanka in 1815 when the British took over the Kandyan Kingdom they gave this protection to  Buddhism and this may have been one of the reasons why as special mention is given to it in the ‘72 Constitution. Dr. Colvin R De Silva who was the Minister of Constitutional Affairs said “There is nothing, and I repeat nothing, in the ‘72 Constitution which in any manner infringes on the rights of any religion in this country”
So I don’t think it’s a big issue. If so there would have been other groups clamouring for the removal of this article


Q What are the obstacles that have to be faced in formulating this Constitution?
 If UNP and SLFP get together and have a common view on this it will be very easy. At the same time we have had two home grown Constitutions and a national question and these two were made without the participation of the elected representatives of the Tamils. We cannot do it a third time also. It is essential that the two main parties, the TNA and the smaller parties representing the Muslims and the hill country Tamils come together and agree and that they will all be flexible enough since this is not an opportunity that we will get for a very long time. Of course at the beginning the parties will pitch their demands high, that is to be expected but finally we all have to agree. The ‘72 constitution and the ‘78 constitution were imposed on us by the UNF and the UNP. It is good that no party has a 2/3rd majority this time so that it will be a consensus document for which compromises will be made. At the end there should be no losers but all winners.