No time better than now for new constitution: Dr. Jayampathy W

By Himal Kotelawala

There is no better time than now to formulate a new, modern constitution that includes provisions on, among other things, cultural and socioeconomic rights as well as a lasting solution to the national question, President’s Counsel and UPFA National List MP Dr. Jayampathy Wickramaratne said.

Briefing a group of media personnel on proposed constitutional reforms on Tuesday, Dr. Wickramaratne said that, unlike in 1972 and 1978 when a new constitution was “imposed” on the populace, there is now an opportunity to reach a wide consensus that includes all political parties and civil society organisations.

“This time, no party has even a simple majority, let alone a two-thirds majority. The UNF has 106 seats, the UPFA has over 90. But when they get together, and with the support of minority parties, there is over two-thirds in potential votes. There is no better time than now to come up with a constitution that suits the country and one that everyone can agree on. It’s a golden opportunity. Such political moments are very rare. The country needs to capitalise on this,” he said.

Emphasising that he was speaking in his personal capacity, Dr. Wickramaratne said the foundations that the present Constitution were built on in 1978 have now been shaken irrecoverably.

“At first, there was the 13th Amendment. With the introduction of the provincial councils, some of the executive and legislative powers were granted to the provinces, diluting the executive presidency’s powers somewhat. The 17th Amendment further curtailed the executive presidency,” he explained.

However, the 18th Amendment nullified those cuts and established what Dr. Wickramaratne called the strongest executive presidency in the world. Even the checks and balances that had been introduced in the original 1972 Constitution, he said, were removed by the 18th Amendment Regardless, the 19 Amendment that was brought forward last year was able to reverse that.

“What this means is that the foundation our Constitution is built on is no longer very strong. We cannot move forward with this. It has to be a brand new constitution. It cannot be amended on this existing [and weak] foundation. Which is why we need a new constitution [built on a new foundation],” he said.

Elaborating on the need for a new constitution, Dr. Wickramaratne said that the 1978 Constitution was written on a single premise: Power centred around one person. There was a gulf between the provincial councils and the centre’s form of government. The centre has an executive presidency; the province has a more familiar parliamentary system akin to the Westminster system.

“Wherever there was devolution of power, it has the same model. In India, both the centre and the state has the same system of governance (parliamentary system). In the US, Washington, that is the centre, and the states have an executive system. Every state has a governor with powers parallel to that of the president. But in Sri Lanka, there are different forms of government in the centre and province – a big contrast,” he said.

Explaining the process of introducing a new constitution, Dr. Wickramaratne said that a select committee comprising all parties has to write a draft, get the said draft approved by the Cabinet, present it to Parliament, secure a two-thirds majority vote and go for a referendum.

Between 1995 and 2000, he recalled, there was a select committee procedure. There were about 25 members, but with no serious discussion. Any meetings were held behind closed doors, with no media or public participation. MPs could say one thing inside and another outside, he added.

“This time, I told the Prime Minister that the select committee process is too opaque. It has to be transparent. So it has been proposed this time that all 225 Members of Parliament meet as a Parliamentary Committee of the Whole with a 21-member multi-party operations committee to oversee it. After initial discussions, that committee and the Parliamentary Committee of the Whole will present a draft, whilst seeking public opinion. Discuss every provision and agree to a draft that has the potential to win two-thirds support,” he explained.

This process is transparent, open to the media, and will be documented on the Hansard, he added.

There are provisions to nullify the existing Constitution and establish a new one – if and only if a new constitution can replace it concurrently.

“There can’t be a single second where there is no constitution for the land. The two have to happen simultaneously. There can be only one draft. That draft has to nullify the existing one and create a new constitution,” he said.

It is this draft that will be presented to the public for a referendum. The new constitution doesn’t become law until it has the approval of two-thirds of Parliament as well as the voting public.

“I’m okay with 12 or 13 referendums, however. To change even the provision about changing referendums, you need a referendum,” said Dr. Wickramaratne.

“Constitutions don’t last forever. Amendments are required where necessary. But it’s good if you can maintain its essence for an extended period of time,” he added.

According to Dr. Wickramaratne, the President has agreed to abolish the executive presidency completely and with the 19th Amendment, the Supreme Court has said that to further curtail the powers of the executive presidency, a referendum would be required.

“This doesn’t mean the post of the presidency is going to be discarded. It has to be discussed whether it’s going to be nominal like in the case of Gopallawa or as in India, where the president retains some powers,” he said.

The electoral system – to abolish the preferential vote system and appoint an MP for each area – will also be discussed, he said, adding that a system that ensures the electability of small parties and minority representation.

Suggestions are being considered for a constitutional solution to the national question, he said.

Pointing out that the new Constitution in East Timor has the best fundamental rights chapter in any constitution found in Asia, Dr. Wickramaratne said a new chapter on fundamental rights is also being considered.

“We only have civil, first generation rights – that is civil and political rights – guaranteed by the present constitution. Socioeconomic rights, cultural rights, women’s and children’s and groups’ rights are not mentioned. We have only won those rights thanks to other provisions,” he said.

There are also proposals to include provisions on media freedom and freedom of speech, he said. The suitability of including provisions on social media is also being discussed, he added.