Crafting of a constitution

President’s Counsel and member of the Lanka Sama Samaja Party (LSSP) majority group, who entered Parliament through the National List of the United National Party, Jayampathy Wickremeratne talks about the new Constitution and the ‘much-discussed process’ adopted by the Government in drafting it. 

In an interview with the Daily FT, the constitutional expert says it is up to the people to accept or reject the new constitution which will be drafted by all members of Parliament as a committee of the whole House. 

“All proceedings will be open. It will be very transparent and every word will be going to the Hansard. Once we have a consensus document, the process ends there. Thereafter the Cabinet takes over and certifies this as a bill requiring a two-thirds majority and a referendum. Then the usual procedure is followed. Finally it will be approved by the people through a referendum,” he points out.

Following are excerpts:

Q: The President and members of the Government claim the present Constitution does not support national unity and reconciliation. What are those features? 

A: I cannot comment on behalf of others but let me share my views. This is not an inclusive Constitution. This Constitution does not provide for an inclusive government. We need to get all communities taking part in government. This is basically a majoritarian Government. We need to have structures which are inclusive, which permits all communities, all political minorities as well as ethnic minorities. They all need to be in government. 

My view is that we should not have a centralised state. There should be sharing of power between the centre and the periphery. Our party is for devolution going below the provincial council level. While we are for clear-cut division of powers between the centre and the provinces, we say that they should not stop at the provincial level. We are strongly for local authorities to be given more power. Some of the subjects under the provincial councils can be easily administered by local authorities. That has two positive aspects: one, the localised ethnic communities get an opportunity; two, the powers go down. We also think power should sweep further down to village level. Set up new institutions at the village level and street level.

You will find enough full-stops and commas in the 13th Amendment which enable the centre to take back the powers that have been given away and that has been consistently done by every government since 1978. 

There is no example in the world of a provincial or state unit which has used those powers given to secession. But since there are people who think that might happen, we have to allay their fears. That is why I am for all for safeguards against secession and that is why I was involved in the 2003 Constitution draft and we put in safeguards so that the centre could intervene where there was a threat to unity and integrity to the extent of dissolving a provincial council. At the same time we have to be careful that the centre does not misuse those powers. We have provided for that too. That’s a healthy balance. 

Our party is very committed to social justice in this capitalistic system. For social justice, civil and political rights are not enough. That is why we strongly push for social, cultural, political, women’s and children’s rights. We want all of these to be included in the Bill of Rights not merely as declaratory rights but as enforceable rights. 

Changing of the electoral system and strengthening of democratic institutions are other important facts. 

Q: Why do you want to bring a new constitution to do make these changes? Why can’t you do it within the present Constitution?

A: Firstly, the present Constitution is based on an executive presidential system. Already we are having problems with that because at the provincial councils we are having a Parliamentary system. If you want to abolish the executive presidency, we need a new constitution. 

Q: Is this the biggest problem that matters to the people in the country, the changing of the constitution?

A: People may not understand the importance of this. Everybody may not understand the significance of a strong Bill of Rights. But it is the duty of the people who understand this to get it through. 

You cannot solve all the problems through the Constitution. But we should be able to lay the constitutional basis for the resolving of such issues, such as the right to education and then strengthen democratic institution so that corruption is minimised. 

Q: Can you explain the method adopted by the Government in drafting a new constitution? 

A: This process is in accordance with the present Constitution. Namely, the present Constitution requires a two-thirds majority in Parliament plus approval of people by referendum. So finally it would be Parliament that will pass it with a two-thirds majority and it will be people who will take the final decision. Now this is different to what happened in the 1970s. At that time, there were doubts that complete repeal of the Soulbury Constitution will not be possible. This was thought in view of some of the statements made by judges of the council. At that time a two-thirds majority was considered almost impossible. 

The United Front; the LSSP, SLFP and the Communist Party when they contested the election in 1970 asked for a mandate for the members of Parliament to sit outside the Parliament, to sit as member of a Constituent Assembly, which is an entirely different process. But still because of the legal issue and also the desire of the leaders of the parties to have a significant break from the old Soulbury Constitution, they decided to summon the Constituent Assembly. It is also significant that all members of the Parliament attended the assembly, which means all members of Parliament agreed on the new proposal. Of course we were not able to see the opportunity because in my view it was a United Front constitution and not a consensus constitution. It was imposed on the country. As much as the J.R. Jayawardena Government, it was their own bill in 1978. 

Significantly when the unitary resolution was being debated, the Federal Party proposed a counter-resolution to say that Sri Lanka should be a federal state. Then Dharmalingam who spoke for the Federal Party said, “If you in the United Party cannot agree to anything outside a unitary constitution, do what you have said in your successive election manifestos: namely the abolition of the kachcheri system and their replacement by elected bodies at district level.” They said, “We are not giving up on federalism but why don’t you do this?” That opportunity was not seized. If the United Front responded positively to that or even if the Federal Party finally voted against that Constitution, that setting up of district councils, its second powers, would have become the basis for a future resolution of the ethnic issue. It was very sad to have missed these opportunities.

While the 1972 Constitution had some significant aspects such as break from the British ground and introduction of fundamental rights, otherwise it also provided for a very centralised state. Then came the 1978 Constitution. The same thing happened. The UNP promised at the election that they would convene a round table conference and address the ethnic issue. But after they got the majority, there was no round table at all. The Federal Party representatives and the TULF boycotted the Select Committee and the meeting of the Constitution. So we have had two constitutions without the representatives of the Tamils taking part in the making of the constitution.

Q: What is the significance of this process? 

A: We saw in 1978 and even during the Chandrika Kumaratunga administration in ’94-’95, the Select Committee process. So the Select Committee process was followed, but it was very opaque. They can sit in public but they usually don’t do it and nobody knows what happens in select committees. The documents are not available and nobody knows what’s happening inside the committee. 

Therefore, this time we insisted there should not be a Select Committee and they agreed. So this time there is no Select Committee. It’s not a Constituent Assembly of the 1972 type where they sat outside the Parliament. This time the procedure laid down in the Constitution will be followed for the ultimate adoption – but for reaching consensus where as in earlier instances the Select Committee was followed, this time the entire House would constitute the committee. Of course they will work in sub committees and much work will be done in the committees. More difficult questions will be dealt with in back rooms. However all 225 members will be participating. The advantage will that be every word said in the Constitutional Assembly will be known to the public.

We call it a Constitutional Assembly as opposed to a Constituent Assembly. A Constituent Assembly adopts a new constitution. A Constitutional Assembly does not adopt a new constitution. Its task is coming out with a draft which is acceptable to a two-thirds majority. So all proceedings will be open; it will be Parliament sitting as committee of the whole House like any other bill draft. Every word will be going to the Hansard. There will be live broadcast. It will be a very transparent process. Of course parallel to that there will be a Public Representation Committee. I was told that even before they published advertisements, representations were already coming in. So that’s basically the process. 

Once we have a consensus document, meaning a document which can muster a two-thirds majority, the process ends there. Thereafter the Cabinet takes over; Cabinet certifies this as a bill requiring a two-thirds majority and a referendum. Then the usual procedure is followed. It’s gazetted, sent to provincial councils then passed by a two-thirds majority in Parliament. It will be approved by the people through a referendum. 

Q: How long will this take? Do you have a specific timeframe?

A: Well, we are hoping to finish in six months. 

Q: Will there be daily sessions?

A: That is for them to decide. The Government does not want to impose anything on the Constitutional Assembly. The Constitutional Assembly at its first session will decide on whether they will meet in the morning or normal sittings or whether to have special days. Probably the party leaders will also meet separately. 

Q: How can the public get involved in this process? 

A: It is a Parliament sitting as a committee of the whole House, so anybody can go there. It is open to the public. There are two ways of doing it; one is the Public Representations Committee. That will receive written representations and they will also conduct public sittings and have oral submissions. Apart from that as usually happens civil society and other interest groups will have their own campaigns. It will have an effect on the main process. They could pressurise their own MPs to take up their issues. They can write to Parliament; there are various committees. 

This committee of the whole House is empowered to meet even outside the Parliament, except that voting and presentation of papers will all be done in Parliament. 

Q: How can you expect a constitution acceptable to all when there are allegations about the composition of this Parliament? 

A: How can there be such allegations regarding the composition? This Parliament was elected by people. Very clearly, from day one, President Maithripala Sirisena has been saying that he would be setting up an all-party government. Prime Minister Ranil Wickremesinghe too said that that the two parties would work together.

Q: That was distorted with Mahinda Rajapaksa campaigning for the UPFA; a section of the UPFA joined the Government while some remained in the Opposition. Your views?

A: We don’t know how many voted for Sirisena and how many voted for Rajapaksa. However, at the end you have to get a two-thirds majority and go before the people. Some people say the SLFP does not have a mandate. Some say the UNP has no mandate. But finally if you do not have a mandate, then that is why you are going to ask the people. 

Q: The Prime Minister in his speech stated that this is based on the sixth Constitutional Amendment. Can you explain this?

A: What he said was that everybody in Parliament has taken an oath under the Sixth Amendment against separatism. All of us, including the TNA, have all taken an oath under separatism. 

Q: Is it ‘against separatism’ or ‘based on unitary state’? 

A: When you swear to the Constitution, the Constitution is for a unitary state. We finally exercise legislative power as Parliament subject to the role of the people of the referendum who have the ultimate power.

Q: How can you bring in a brand new constitution when you do not have the mandate to do so? 

A: Again, it is a matter of interpreting the election results. I am not conceding with those allegations. Even if you assume there is no mandate, finally it will be the people who are ultimately sovereign – who will decide according to the present Constitution. So the question about a mandate does not arise. The same people did not say that for the 18th Amendment, which made the executive presidency the strongest executive presidency in the world. They did not get a mandate, they did not even ask for a mandate. On the other hand they said they will reduce the powers of the executive presidency in 2010 but within six months they strengthened it. There was no mandate for that. Where were the people who question about a mandate at that time? Where were they? 

Q: Is there a legal requirement to have a mandate to change the Constitution? 

A: No you don’t need a mandate. A constitution does not require a question to be put to the people at a general election upfront. That is why it requires a two-thirds majority. If the bill for constitutional change is inconsistent with some of the basic features, then you need the approval of the people at a referendum as well. The question of a mandate does not come. Of course parties sometimes do ask for mandate and some don’t. As long as you don’t touch the basic features of the Constitution, a referendum is not required. If you do, you need a referendum.

The only condition for repeal and replacement of the Constitution is that the bill that repeals the Constitution must also include the new Constitution. You can’t have a situation where there is no constitution. That’s the only requirement. 

Q: Will this Constitution pose a threat to the Sinhalese people and Buddhism in the country? 

A: We may have differences but do you think any Sinhalese leader would destroy the Sinhala race? There may be a few leaders who want to destroy other races. It’s ridiculous to say a leader wants to destroy his own race. All those questions can be discussed in this assembly. Nothing is decided upfront. The Government does not want to impose anything on Parliament. Nothing has been drafted. I am involved in the Technical Committee, no drafts have been done. If I was drafting a constitution, I wouldn’t have the time to talk to you. Finally, it will be the people who will decide whether to adopt this Constitution or not. It’s the people of Sri Lanka who will decide. 

Q: Some question the legality of the process the Government is following. What are your views? 

A: This is ridiculous. It is the process which is laid down in the Constitution. 

Q: Why is the Opposition up in arms against this? 

A: The Opposition is going to lose if we have a new constitution. The Government will have a lot of praise. I think it is straight politics. 

Q: Is the Government trying to diminish the popularity of the Opposition by bringing in this Constitution? 

A: Well, the people want a new constitution and we too want a new constitution. If in the process we get more popular than the Opposition, what can we do? This is not an exercise for popularity.