Dr. Jayampathy Wickramaratne PC says: “WE CAN’T PREPARE A LEGAL DRAFT CONSTITUTION WITHOUT AN INTERI

Preparing the new constitution has taken center stage during the past few days with contradictory statements being made as to the very need of a new constitution, whether there is a mandate to hold a referendum, and the current status of the constitution making process. In the light of the looming confusion Daily Mirror spoke to Dr. Jayampathy Wickramaratne PC to clarify the concerns raised and to untangle the intricacies related to constitution making. MP Wickramaratne is a member of the Steering Committee appointed by the Constitutional Assembly for the drafting of a new constitution. He was also a member of the team that drafted the Constitution Bill of 2000. 

Pix by Waruna Wanniarachchi

Excerpts of the interview: 

What is the current status of the constitution making process?

The steering committee has been meeting and we have been having a draft interim report for a few months. Some parties wanted more time for internal discussions and also for discussions between parties. Now that has happened and now most parties have clear positions on the various issues. I’m not allowed to reveal details of the discussion. But I can tell you that last week the Steering Committee met thrice and we are now discussing the draft interim report, clause by clause. We have finished almost half of the report. We hope to finish the rest in the month of July. Hopefully there will be an interim report within the next few weeks.   

Is there a draft constitution prepared? 

We can’t prepare a draft- a legal draft- unless there is an interim report. If we have an interim report then we know where it’s going. Then we can start preparing a rough draft and finalize it. May be on some issues we can have alternate formulations drafted and depending on the final decision we can produce the draft constitution.   

The Joint Opposition’s parliamentary group leader Dinesh Gunawardane said that a draft constitution has been presented at a seminar at BMICH. What do you think of this?

I myself was involved in the organizing of that conference. We supervised its organizing. I can tell you that the only documents that were distributed were the parliamentary resolution for the setting up of a constitutional assembly in all three languages. This was distributed in the morning and in the afternoon we distributed copies of the six subcommittee reports which are already in the public domain.   
I can say with responsibility that not a single document was distributed apart from that. But I have seen critiques by various people. They have referred to some of the clauses that are found in the draft interim report and that draft interim report was made available only to the 21 members of the Steering Committee. Those Steering Committee members represent political parties. Within those respective political parties that draft interim report would have been used. Among themselves they would have discussed. If anything has been leaked it can only go from a member of the Steering Committee because we didn’t give it to anybody else.   

It seems that there is a delay in the constitution making process. Why is this so?

I don’t think we need to go like an express train. At the same time too much delay also defeats the purpose because the more we come to the end of the term of parliament, the more closer to the next elections, and other political factors come into play. This is what happened in the 1995/2000 process. Although we finally came up with a very good draft constitution-which is probably the best we’ve had from my perspective – it got delayed. Finally the bill was presented to parliament in August 2000, just few weeks before the dissolution. By that time the UNP and the SLFP were worried about what was going to happen at the elections, and that is one reason I think the UNP didn’t want to support, because that would have given the People’s Alliance a disadvantage at the next elections.   

Is the government looking at the 2000 draft constitution in the current constitution making process?

On certain issues yes, but not on all. What could have been done in 2000 can’t be done today. Some issues are still relevant. Some have to be looked at in the light of what has happened since then. For example, the violence is no more and the armed separatists have been convincingly defeated. But the nature of the conflict hasn’t changed. Finally it’s about sharing governmental power. That hasn’t changed.   

Ven. Rathana Thero has said that the people haven’t given the government the mandate to effect constitutional reforms that would require a referendum. What are your views on this?

I was involved in the drafting of the manifesto of the common candidate. Soon after he emerged and was recognized as the common candidate, he signed a pledge at Viharamahadevi Park with nearly fifty organizations. This was done in public. It called for comprehensive constitutional reform and called for the complete abolition of the Executive presidency. Within a couple of days, the JHU(Jathika Hela Urumaya) had signed its own MOU with the President. That is where they had said that nothing that would call for a referendum would be included. That is a matter between the President and the JHU. We aren’t a party to that.   

Then we started drafting the election manifesto. Earlier the plan was to have a comprehensive change as far as possible, and have a referendum. But then the political reality regarding the necessity to hold a general election soon emerged. If we had to wait for a referendum, dissolution would have taken another two or three months. So it was decided that constitutional reform at that stage would be done without a referendum. That was only because we had to hold general elections. Don’t forget that the Maithri-Ranil government which was formed on January 09 didn’t even have a simple majority in parliament. So people were yearning for a parliament with a majority, at least a simple majority.   
It’s for this hundred-day programme that we said that we wouldn’t go for a referendum. If any other interpretation is given, that will be a betrayal of the people’s wishes. During the elections, the President very clearly said that this is the last Presidential election and he himself won’t contest for the elections again. This meant that there would be further constitutional changes including devolution, electoral reform for most of which we would need a referendum. What can be done without a referendum would be very little. Are these people saying that we only promised to do a wee bit? Just tinker with JR’s constitution. Other people can say that, but the President isn’t saying that because he made a promise, and later at Maduluwawe Sobitha thero’s funeral, he made it clear that the executive presidency will be abolished. How can the executive presidency be abolished without a referendum? So these are people who for various reasons don’t want a referendum. I think that apart from the constitutional requirement, you should have a referendum to have comprehensive reform. My own view is that getting the people’s approval for constitutional change would give legitimacy for that new constitution.   

"There are people who don’t want a new constitution. The main plan of the January 08 change was to abolish the executive presidency and ensure the democratization of the state"

Look at the resolution that Parliament passed for the setting up of the Constitutional Assembly. That resolution very clearly said that there would be a referendum. The only issue that remained was whether it would be a new constitution or whether it would be a mega amendment of the present constitution. But on the issue of the referendum the resolution is very clear. In fact the original resolution which was presented to the parliament on January 09, 2016 was amended later to accommodate certain views expressed by the SLFP, the JVP and various other parties. This resolution was passed without a division in parliament. Even Rathana Thero didn’t object to it. So we have parliamentary approval and if anybody says that there’s no mandate for a referendum, why are they opposed to getting the people’s approval for a new constitution? That is the ultimate mandate. Sovereignty in this country lies with the people. What we say is let us ask the sovereign. If they don’t approve the constitution, we’ll accept it.  

But then wouldn’t the whole constitution making process render useless?

That is assuming that people will reject it. I don’t think so. There are people who don’t want a new constitution. The main plan of the January 08 change was to abolish the executive presidency and ensure the democratization of the state. I have no doubt that almost everybody who voted on January 08 will vote for the new constitution once the main parties agree. To that must be added the large chunk of SLFP votes which went to Mahinda Rajapaksha on January 08 and who are now with Sirisena. There is a sizable Left crowd who will vote for a new constitution. The Left can’t afford to oppose the new constitution. This is what we have been fighting for.  

The Mahanayake Theros of the three Nikayas have declared that there’s no need for a new constitution. Is this the position of the entire Sangha community?

I don’t think so. Since then there have been airing of voices from the Maha Sangha itself to the contrary. I saw a statement made by an Anunayake Thero who queried why we are preparing a birth chart for a child who hasn’t been born? Even I don’t know what the final contours of the constitution are. I only have a vague idea as to what the new constitution contains. We haven’t even agreed on an interim report, so how can you say that we don’t need a new constitution? Certainly we are  duty bound to consider the views of the Mahasangha as much as we are duty bound to consider the views of any other group of citizens.   

People aren’t very familiar with referendums. How can we ensure that people in the grassroots level will go and vote at a referendum? 

We have an example of a very vigorous campaign during the Chandrika period. I was part of that campaign. In the first public opinion survey done in 1996 we found that only 28% supported devolution. But after that vigorous campaign by 1998 the numbers had risen up to 60%. So what is needed is a campaign. People aren’t fools. Not everybody would know the details of the constitution. But they have a sense. The same question was asked from me by people in the run up to the Presidential elections-whether all what we’re saying about democracy would be understood by the people. What is needed is to sensitize the opinion makers in this country. This is what we did before January 8. We didn’t go to each an every village. We had no time. We got the opinion makers on our side and the rest followed.   

But for that you need consensus between the two main parties (UNP and SLFP). Now that the TNA is taking a realistic and sensible position it makes it easy. We are very happy that the JVP is taking a positive attitude towards constitutional change. This is a party which took arms against Provincial Councils. Today they say that if the executive presidency is abolished, if there are meaningful electoral reforms and if there is devolution, they have no problem. That is a big plus.   

If we go for a new constitution without changing the entrenched clauses (clauses which require a referendum) do we still need a referendum simply because it’s a ‘new constitution’? 

Yes, because of the peculiar wording of Article 83. It says that any amendment of those entrenched provisions would require a referendum. That means that even changing a comma would necessitate a referendum. Widening the scope of the right to freedom from torture or strengthening it, for example, would require a referendum. These are also lessons in constitution making- how we should in future not say any amendment, but only further amendments which are inconsistent with the principle laid down in that particular provision should necessitate a referendum when entrenching clauses.  

If a proposal that is disputed is included in the draft constitution, at what stage can it be challenged? 

We have to go by the present constitution. Rightly or wrongly, the present constitution provides for the entire bill to be presented before the people, not provisions. So provisions will have to be discussed earlier. Finally a citizen votes for or against the bill. I don’t think that I will agree 100% with the clauses. But overall if I am happy with it, I will vote for it.   

If you aren’t happy with one clause can you appeal to the Supreme Court?

If the Cabinet of Ministers certifies that this is a Bill to be presented to the people at a referendum following a two thirds majority, then the Supreme Court has no jurisdiction. We go to the sovereign and the sovereign is the people.   

Article 16 undermines the supremacy of the Constitution and has violated people’s rights which would have otherwise been protected by the fundamental rights chapter. Would this clause be repealed by the new constitution?

That is a matter under discussion. I can’t tell you whether it will be repealed or not. Today there is consensus that all existing laws should be read subject to the new fundamental rights chapter. For example, in the Crown Lands Grants bill where you grant crown land to the state land, in the matter of succession, it’s discriminatory against women because the eldest son is preferred. But the sensitive area is personal laws. As far as Kandyan law is concerned, I haven’t heard any voice saying that Kandyan laws must be preserved as they are. They also have discriminatory provisions. Regarding the Tesawalamai Law, I have spoken to Tamil leaders. They say that most of the provisions can survive a challenge on the basis of equality. I’m not an expert on Tesawalamai Law. There may be one or two provisions which will have to be removed. But even from the Tamil people (and I’m subject to correction) there’s no one saying that if there are discriminatory provisions they should be retained. The problem is with the Muslim Personal Law. There is a vigorous debate within the Muslim community itself. If the Muslim community can come to an understanding before the elections, so much the better.   

Why is it important to have judicially enforceable socio-economic rights, children’s rights and women’s rights?

Well, otherwise they are only declaratory. People who are opposed to these rights say that people can decide at an election. But then what happens between elections? Are we letting MPs and the executive to decide on anything between two elections? Take the case of South Africa. The judges have been very very careful. Since there are no ESC rights both in India and Sri Lanka, we have been using the equality provision to decide on matters relating to health, education etc. It’s now that the judges can go berserk. If you take the South African Constitution there are four limitations. One is that it’s only access. Then the State is only required to take reasonable measures. It’s progressive realization of the right and should be within available resources. 

Would ESC rights, children’s rights and women’s rights be heard in a Supreme Court just as fundamental rights?

As far back as 1990 the World Conference on Human Rights recognized the indivisibility of rights. So there’s no reason for ESC and other rights to be given a lesser status than civil and political rights.   

Wouldn’t it increase the backlog of cases?

That’s why the Sub Committee on Fundamental Rights has suggested that the Court of Appeal should sit in the provinces and original jurisdiction related to fundamental rights should be exercised by the Court of Appeal. You can appeal to the Supreme Court, but with leave so that not every case will end up in the Supreme Court.   

How will the new constitution address power devolution?

At the end of this year it will be the 30th Anniversary of the 13th Amendment. Next year we will complete 30 years of provincial councils. So we have 30 years of experience as to how the provincial councils work. The Chief Ministers and the leaders of the Opposition came together before the Steering Committee and the various sub committees, and told us about their experience. The Governor can override any decision of the provincial public services commission. The secretaries are appointed by the Governor. Even the President of this country has no power to override the decisions of the National Public Services Commission. In many provinces-not all- the Governors have been using the power of appointment and disciplinary control of officials to wade into the territory of the Chief Minster. They want that removed, but they’re not saying that they should be obtaining that power. They are only asking to present it to the independent public services commission. We are proposing independent public services commissions at the Provincial level appointed on the recommendation of the Constitutional Council at the center.   

• We are now discussing the draft interim report clause by clause, and we have finished almost half of the report  

• I don’t think we need to go like an express train. At the same time too much delay also defeats the purpose  

• What can be done without a referendum would be very little.  

• Are these people saying that we only promised to do a wee bit? Just tinker with JR’s constitution?   

• Getting the people’s approval for constitutional change would give legitimacy.  

• We haven’t even agreed on an interim report, so how can you say that we don’t need a new constitution?  

• We are proposing independent public services commissions at the Provincial level appointed on the recommendation of the Constitutional Council.  

• New provision to give the center the power to intervene in the provinces in the Provincial councils where there is a clear and present danger to the territorial integrity and sovereignty of the country.   

In the making of national policy on devolved subjects Chief Ministers and leaders of Opposition have asked to obtain their views and let there be a participatory process, and national policy not to be declared through cabinet decisions and circulars. If national policy is to be followed and made binding on provincial councils, such national policy should be legislated in the nature of framework legislation. This happens in many countries. Then any provincial statute will be read subject to that national policy. No state can be made which is inconsistent with that declared national policy. Not only declared, but adopted by Parliament because it’s finally Parliament that has legislative power.   
We are all doing this within the proposed structure of the state, which will be an undivided, indivisible Sri Lanka. The sovereignty of the people won’t be divided as in a federal or quasi-federal state. The ultimate authority would be in a central legislature. There’s a proposal to also have a second chamber which I think is a very good idea. So it will be the central legislature that will make or change the constitution and where applicable the people will express its position at a referendum.   

We’re also including a new provision in the Constitution to give the center the power to intervene in the provinces in the Provincial councils where there’s a clear and present danger to the territorial integrity and sovereignty of the country. This is a power that isn’t provided in the present constitution. When the Varadaraja Perumal incident took place, because the constitution doesn’t provide for dissolution of the provincial councils in such circumstances, special legislation had to be brought. These special legislations can be taken away tomorrow by a simple majority.   

How do you see the road ahead to introduce the new constitution?

I have very high hopes. We have the potential of a two thirds majority. I know some people will return to the Rajapakshes. From what I’ve heard there are people in the Joint Opposition who want to join the government. There are some who will vote according to their conscience. Unlike in Brexit or Columbia we go to the people at a referendum after a two thirds majority. When you go armed with a two thirds majority I don’t think there is any reason to fear.