We Cannot Have A New Parliamentary Form Of Govt . On An Old Foundation – Dr. Jayampathy Wickramaratne

By Camelia Nathaniel-Sunday, January 10, 2016

Dr. Jayampathy Wickramaratne, the leader of a three-member team that prepared the 19th Amendment to the Constitution says the country cannot adopt a new Constitution after every general election, and therefore a fresh start is required in order to draft a new Constitution. A committee, headed by UNFGG Parliamentarian Dr. Jayampathy Wickramaratne, has already been appointed to draft a new Constitution. He pointed out that Sri Lanka adopted their constitution in 1972, have deviated from the Soulbury constitution and sat as a constituent assembly outside parliament and adopted the constitution. However he said that can be done may be once after independence or after a military dictatorship. “In that case we can bypass the Constitution and do a constitutional revolution. But now we have a constitution legally adopted in 1978,”    Dr. Wickramaratne told The Sunday Leader.

Following are excerpts from the interview;

Q:  You have been calling for a new Constitution and have said that we cannot continue with the existing one. Why do we need a new Constitution?

A: The present constitution is built on a different foundation of an executive presidency and it already underwent change in the 13th amendment where you have provincial councils where you have a parliamentary form of government. Now the executive presidency is being dismantled. Hence you cannot have a new parliamentary form of government on an old foundation. Therefore you have to start afresh and the whole thing has to be changed. In any case since the current constitution has undergone so many changes and now for example we would like to have a new bill of rights, the structure of the judiciary and all that has to change. So we have to start afresh now.

Q:  How different is the envisaged Constituent Assembly to the one that drafted the 1972 Republican Constitution?

A:  A constituent assembly like the one we had in 1972 adopts a new constitution bypassing the procedure laid down by the Soulbury Constitution, it symbolically in the first meeting and the last meeting outside of parliament. It was a complete breakaway from the soulbury constitution. This time the committee of the whole house meeting in parliament as part of parliament, with every word published in the hansard. It’s basically a parliament sitting but it’s a committee of the whole house and it will be a very transparent process open to the public and opened to the media. Every document tabled will be open to the media and it’s a constitutional assembly but it’s a whole committee of the whole house but it has no power to adopt a new constitution. They only draft a new constitution document which can hopefully muster a 2/3rd majority. After that there will be long discussions where every clause will be discussed.

Then after that cabinet takes over and cabinet certifies the bill as one requiring a 2/3rdmajority and a referendum. Because it’s a new constitution in any case a referendum is required and the bill is certified, gazetted and sent to the provincial councils, then placed before parliament proper. Hence we are not bypassing the procedure laid down in the constitution.

Q. But was it not done before?

A:  Yes it was. But you cannot have constituent Assemblies after every election. You can do it for example the first time after independence, but it will be very difficult after that especially when you have a democratic process available.

Q:  The government says that a key objective of the new Constitution would be that of ethnic amity and national reconciliation. In this regard how inter-racial justice and equality would be addressed?

A:  The Tamil political issue needs to be resolved and there has to be a political solution. The issues of the minority communities Tamils and Muslims cannot be swept under the carpet anymore. I strongly think that the new constitution should be acceptable to the Tamils as well as the Sinhalese. Don’t forget that 1972 and 1978 constitutions were both adopted without representation of the Tamil representatives. We cannot have another constitution which does not have the support of the Tamils. This time it is essential that we have the Tamil parties on-board.

I am supportive of meaningful devolution. I am also for safeguards against devolution to be put in place in the prosecution but at the same time the centre must not be able to cause the devolution through the so-called safeguards. While there should be safeguard against devolution and arbitrary action on the part of the provinces, it is also essential that there should be no room for arbitrary actions by the centre. For me devolution is not only for the North and the East.

Q: How long will the whole process of formulating the new Constitution take?

A:  We hope to finish it in six months. These issues have been discussed over the past so many years and we don’t need to go over them repeatedly. The public representation process has already commenced. The committee has been appointed and they have already started their work. Even though notice has still not been published, this will happen over the next few days. Yet still people have not even waited for the notice and they have already started sending in their representations.

Q: While the shape of the new constitution will be determined by a long drawn out and elaborate process of consultation both within and outside parliament (through parliamentary committees and the Public Representation Committee) a change which has been decided upon already is the abolition of the Executive Presidency. Do you think it is wise to give up the Executive Presidency when it has been able to give the country a stable and strong government – a single point of authority – which enables the government to finish terrorism and put the country on the path to rapid development?

A:  Well these are being raised by some parties, but the people have spoken and they have given a verdict clearly on January eighth, 2015 and in August last year. However there is still a minority who think that the executive presidency has to be retained. But the people have expressed their stand at the elections.

Q: Why not just implement the devolution package under the 13th Amendment fully? Or just make some adjustments in it? Why go through the process of discussing the issue all over again. After all, discussions on devolution have been on since 1994-95 when CBK came to power with the promise of devolution?

A: We must learn from the shortcomings of the 13th amendment. There are various loopholes, for example what was given with the right hand, the centre was able to take back with the left hand. Therefore we must learn from the past and we can improve on the 13th amendment and plug the loopholes.

Q:  Since ethnic reconciliation is one of the objectives of the new Constitution, what can be done towards this end through the new Constitution. Devolution of power to the Tamils is one way to bring reconciliation but is there are other ways which can be made part of the Constitution?

A:  I am strongly not only for the devolution of power to solve the problems of the numerically smaller communities, but I am more strongly for devolution as an instrument of development for the provinces which are underdeveloped. For example if you take Monaragala it is as bad as Mullaitivu. I hail from and received my initial education in a very remote area in Udadumbara which is now part of Meda Dumbara in Kandy. I for one know the difference between the village and the city. Today the villages have been improved but the gap between the cities is still as wide.

The people there are tenant cultivators and earlier matters concerning tenant cultivators were handled by the agrarian services then it was handled by the provincial councils. But misinterpreting a Supreme Court judgement the centre took back the powers and the departments and then again in 2003 the Supreme Court clarified that matters of tenant cultivators are handled by the provinces, but in spite of that still it is the centre that holds the department of agrarian services under them. So this clearly shows that these things have to be clarified. So I see devolution not only as a solution to the ethnic problem but it is also devolution and taking power closer to the people. It is also an instrument for the development of the underdeveloped districts.

Q:  Since the bureaucracy and other structures of the government are dominated by the Sinhala community, do you think places should be reserved for minorities in jobs and educational institutions as in India where there is 28 percent reservation for the Backward Castes in the Central government and 69 percent for them in Tamil Nadu?

A:  No, this issue of quota is a very sensitive question. Under the equal protection laws quotas are allowed but quotas should be very carefully tailored and they should not be open ended. It must be for a very short period and reviewed. It is a very sensitive issue and must be very carefully reviewed.