Make-or-break window for constitutional reform as Unity Govt. crosses 2-year mark

• If the current Parliament fails in its constitution-making effort, the road to constitutional reform will be exceedingly difficult, says Dr. Jayampathy Wickremaratne

By Dharisha Bastians

New constitutions are best drafted and enacted in the first half of a Parliament’s term, a key architect of the drafting process warned this week, signalling a fast-closing window for major constitutional changes under the National Unity Government which marked two years in office this month. 

Dr. Jayampathy Wickremaratne, ruling party MP and senior constitutional lawyer, told Colombo-based foreign correspondents on Monday (21) that the process to draft a new constitution “cannot go into the tail-end of a Parliament’s term, when elections get too close”. 

“Delays will only make it more difficult,” the senior lawyer contended, explaining that the 2000 draft constitution had suffered a similar fate. The proposed 2000 constitution was one of the best drafts, Dr Wickremaratne said, but it came too late – a few weeks before Parliament was dissolved. Towards the latter part of a Parliament’s term, “other factors come into play,” he explained, alluding to electoral compulsions and incumbency problems. 

“We have six or seven months to go,” Dr. Wickremaratne warned, before the current Parliament completes the first half of its five-year term. 

Dr. Wickremaratne chairs the Management Committee of the Steering Committee tasked with drafting the new constitution. Since March 2016, the 21-member Parliamentary body chaired by the Prime Minister has been thrashing out the knotty questions of devolution, the future of the executive presidency and electoral reform – areas where political consensus is vital to ensure the passage of the draft proposals through Parliament. 

The committee has had an interim report containing draft constitutional proposals ready since December 2016, but delay after delay, especially on the part of the Sri Lanka Freedom Party (SLFP) led by President Maithripala Sirisena, has stalled progress.

The endless delays and an apparent stagnation of the process have caused major frustration for the Tamil National Alliance, which said “enough is enough” last week, and fired off letters to the UN and foreign diplomatic missions in Colombo, urging international intervention to ensure the Government keeps its promises on reconciliation and devolution. 

According to Dr. Wickremaratne, the UNP, TNA, JVP, Left parties and the UNFGG alliance comprising several smaller parties all favour a new constitution. “We still don’t know the position of the SLFP. We expect their views to be submitted to the Steering Committee this week,” the senior lawyer told the Foreign Correspondents Association. 

Ironically, the major sticking point for the SLFP is the abolition of the executive presidency, even though the party has railed against the all-powerful presidency since it was instituted in 1978. Political analysts noted that despite the SLFP’s four-decade campaign against the executive presidency, the office has best served the centre-left Party. Three of Sri Lanka’s five executive presidents elected to office since 1978 have been members of the SLFP. 

Once the Steering Committee circulated the interim proposals, political parties requested time to study the draft and submit observations. Dr. Wickremaratne said the JVP requested time and came back to the committee in two months. “The JVP is in agreement on the three major issues,” the ruling party Parliamentarian said, “devolution, electoral reform and the abolition of the executive presidency.”

As far as the Sirisena-led SLFP is concerned, the party still appears uncertain about whether the current drafting process is aimed at enacting a new constitution or an amendment to the current 1978 Constitution. 

Dr. Wickremaratne noted that the resolution of Parliament setting up a constitutional assembly to draft constitutional changes leaves this question open, but makes a referendum necessary either way. In any event, a mega constitutional amendment that alters the powers of the executive, redefines the nature of the State and expands the bill of rights, will require the people’s consent at a referendum and a Parliamentary super majority in order to take legal effect, as stipulated in the present Constitution.

As for the tricky question of devolving powers to the provinces, Dr. Wickremaratne said the best proposals for meaningful devolution had come to the Steering Committee from the Chief Ministers of the south. These provincial representatives made representations before the Steering Committee to urge that the new constitutional proposals lay out a clear division of powers between the centre and the periphery and limit the powers of Provincial Governors especially over provincial public service officers.

And while the 13th amendment lays down no specific provision for the dissolution of provincial councils – resulting in special legislation being enacted to dissolve the North-East PC following Chief Minister Vardarajah Perumal’s declaration of independence in 1990 – the new proposals include a safeguard written into the constitution, which cannot be repealed by a simple majority of Parliament. 

“This time around, the draft proposals will specifically state where there is clear and present danger to Sri Lanka’s territorial integrity and sovereignty, the Centre can take over the functions of the provincial councils, take over the functions of the Governor and board of ministers, and even dissolve the councils.”

The senior constitutional lawyer was particularly upbeat about proposals for electoral reforms in the new constitution, which he said had got broad consensus. The new proposed system would be based on proportional representation with a first-past-the-post, constituency based voting system worked in. The new proposals satisfy the smaller parties in Parliament, by ensuring perfectly proportionate representation to political parties based on the nation-wide vote. 

“If the last election had been held under the proposed system, the JVP would have had 12 seats in Parliament,” Dr. Wickremaratne said, explaining that the number of seats was perfectly proportionate to the 5% the party obtained in the nationwide vote. 

Ultimately, the whole constitutional process hinges on agreement between the two major parties on the fundamental issues, the ruling party MP said. “That is the major challenge facing the process. There are three main actors in this process – the SLFP, UNP and TNA,” he explained. If the UNP and the SLFP reach agreement, the process can move forward, Dr. Wickremaratne urged. “Things would then be clearer and we can start educating the people about the proposals,” he said. 

If the Government is serious about this constitution-building attempt, most analysts agree that time is running out. Dr. Wickremaratne, speaking for himself, said he would prefer that the process moves forward sooner. “If this Parliament fails, it is going to be very difficult to enact a new constitution,” the senior lawyer remarked. 

Dr. Wickremaratne explained that in the current context, the Tamil leadership was moderate and reasonable and the ruling UNFGG-led Unity Government had pledged a new constitution in its manifesto. “Failure to deliver will only help extremists to take very radical positions – in the north and the south.”