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| Sunday, 30 May 2004 |
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Constitutional Reforms Our staff reporter Jayantha Sri Nissanka interviewed Professor of Political Science and Public Policy of the University of Colombo, Dr. Laksiri Fernando and Attorney at Law J. C. Weliamuna regarding the proposed constitutional reforms.Changing the present undemocratic Constitution which has fundamental defects will pave the way for economic progress, permanent peace and finding a lasting solution to the ethnic problem, says Dr. Laksiri Fernando, while J. C. Weliamuna argues that Government's attempt to introduce a new Constitution through a Constituent Assembly is unconstitutional. Excerpts of the two interviews. 'It would pave way for progress' - Dr. Laksiri Fernando, Professor of Political Science and Public Policy of the University of Colombo
Q: Most people favour Constitutional reform but attribute different reasons. Why do you think the present Constitution should be abrogated? A: This Constitution came in to being in 1978. Since 1978 to 1988 there have been 16 amendments. But those were not improvements except one amendment that is the 13th amendment. All other amendments were brought for political reasons distorting the nature of the democratic constitution. Therefore I describe this Constitution as an undemocratic Constitution. Q: Why do you say so? A: The reason is that we deviated from democracy and basic norms of democracy to a great extent in 1978 by having the Executive Presidential system. It is not a just Presidential system. It has given so much power to the Presidency. Therefore I call it an authoritarian political system. It was criticised by many people from the beginning including Dr. N. M. Perera. To my knowledge full authoritarian powers were exercised to a full extent but not to the fullest extent by previous Presidents. The danger is that unless we change the Constitution now, future Presidents could exercise the powers to the fullest extent moving completely out of democracy. But this is not the only reason we should change the constitution. Q: What are the other reasons? A: Other reasons are changing the electoral system, placing the Constitution as a supreme law of the country with judicial interpretation, improvement of the fundamental rights chapter and principle of state policy, change the nature of undemocratic character of the Constitution towards a democratic character. But special reason is to amend the Constitution in order to facilitate the peace process then to make it flexible to change the structure after we come to a final agreement. Q: But it will take years to find a lasting solution to the North and East problem. Until then can we hold the reforms? A: Constitutional reforms go through a process. There are certain stages in the peace process. For an example, let us say that the peace process started two years back. During this period there was a ceasefire. We call it a negative peace. Because there was no war and no political settlement. There were no steps towards settlement of humanitarian needs. That is why we need an interim administration. My question is, it is possible to have an interim administration arrangement under the present Constitution. My answer is no. Of course we can have some interim arrangements in a very narrow area under the 13th amendment but that is not sufficient. That is not what the LTTE and other parties are asking. It is true that they are asking the maximum but no government is in a position to give everything they ask. But there can be a compromise arrangement during the interim period where the LTTE and other parties manage reconstruction and reconciliation jointly with the government. That interim period is also not the final solution. But the question is whether we can accommodate that interim administration in the present Constitution. Therefore, it is necessary to amend the Constitution to facilitate the peace process. It is a process and opens up a window for changing the structure at the final solution. The present constitution is highly rigid. It requires a 2/3 majority and a Referendum to amend it. A Referendum is a completely acceptable necessary element for a major Constitutional change, for a new constitution or an interim Constitution. It is a practical difficulty to obtain a 2/3 majority for Constitutional amendment. Q: Without a 2/3 majority is it possible to amend the present Constitution? A: The 2/3 is not a barrier. We should attempt all other possibilities of agreeing with all parties to achieve consensus on a new Constitution to facilitate the peace process. There are two ways. At the moment what we require for the peace process is an interim administration. But not exactly what the LTTE has proposed but a refined one after negotiation. The major question is how to implement the interim administration, are we going beyond the present Constitution or within the Constitution. Those who oppose Constitutional changes, should answer a basic question, i.e., if there is any agreement between the Government and LTTE for an interim administration, how could that be achieved? Is it possible to achieve through the present Constitution. If not, at the first stage of the Constitutional process, we achieve the general requirements as I said earlier. We have to make this Constitution more flexible. Then we can go to the second stage of amendments for devolution. We should ensure possibility of a stable Government for the final solution. Because in 2002 Prabhakaran expressed concern over unstable Government in the South at a press conference. A stable Government is a very important factor. When changing the electoral system we must ensure a stable Government. Also we must ensure a political requirement to have Constitutional amendments in a flexible manner. For example, if we change the electoral system there is a possibility that there will be a reasonable grouping in Parliament. A reasonable grouping gets the 2/3. Therefore when the final solution is reached with the LTTE there should be a possibility to incorporate it in the Constitution. Q: The majority in the South see the Constitution amendments procedure stipulating a 2/3 majority as a trap that ensnares the popular will of the people. Your views. A: When we talk of constitutionalism or making constitution, we normally talk about two approaches- change the Constitution through the existing one. But that is not possible but that may be the ideal way because the present Constitution is too rigid and fundamentally defective. Because it has an electoral system which is not giving any party a 2/3 majority in the House. An electoral system which does not allow to amend the Constitution. Therefore, there is a contradiction within it. It is a trap laid for neither party to obtain a 2/3 majority in Parliament. But forming a Constituent Assembly to frame a new Constitution is an acceptable method in many countries. We did it in 1972. The benefits of a Constituent Assembly are many because the process is more democratic and contextual. In a Constituent Assembly there in no division between parties, no atmosphere for confrontation, parties will consider questions differently, rules of procedure will be different, seating arrangement is different, members will participate as representatives of people, more flexibility, etc. Q: But in 1972 most of the political parties participated in the Constitution making. What will happen if parties boycott the future Constituent Assembly and what will be the legality of the new draft constitution. A: My personal opinion is that the Government will not call the Constituent Assembly immediately. There are missing elements for a conducive situation for such a assembly. But I am not saying it is impossible, but there is a process that we need to go through. We have to convince certain parties. The Government should not go back on it because there is a mandate for it. It is the duty of the Government by the people on Constitution change. People gave a mandate for the People's Alliance even in 1994. Some parties obstructed the 2000 draft Constitution as well. There will be obstructions by political forces on the success or failure of peace negotiations. If we can come to an understanding on the peace issue, then the TNA support would be favourable. I believe other minority parties would follow suit. I believe the UNP would also not obstruct the peace process though they don't have much faith on the Government's peace process for various reasons. I Q: In the event of the Government failing to get a 2/3 majority in Parliament, it has been mooted that the amendments be presented to the people for approval before tabling them at a Constitutional Assembly. What are your comments on the constitutionality of the procedure. What is the legality of such a Constitutional draft. A: It is legal if people accept it at a Referendum. It happened in the Philippines and South Africa. Since the French Revolution there have been five Constitutions in France. All the French Constitutions broke away from the previous ones. The prevailing Constitution is a barrier for Constitutional development in Sri Lanka. That is the point we have to understand in the case of Sri Lanka. It is not only undemocratic its fundamentally defective, its extremely rigid, We have to have lateral thinking. If you have a difficulty in solving a problem in giving a structure what you have to do is to go beyond the structure. But one condition is that, movement away from the present structure should be a democratic one. Here we are not talking about changing the Constitution undemocratically, but democratically and more democratically through a Constituent Assembly. So if we stick to the present Constitution, the procedure is not very democratic. For example, if we try to change a dictator by rules of the dictator we can not do it. It is not logical for anyone to say that we must follow the rules of this defective Constitution. Those who are against the Constituent Assembly procedure, I believe they want to stick to this undemocratic Constitution. That is the fact. They are prisoners of the present Constitution. They can not think beyond and they are tied. Q: Their argument is that this is an exercise to extend the political life of President Kumaratunga. What is your answer to them. A: I don't think that is the major issue here. It's not a rational argument. It's a peripheral thing. The incumbent President can not contest for the third term but can become the Prime Minister. There is no obstacle to it. But for a long period we were discussing changing the present Constitution. That still remains. Today a crucial problem is changing the electoral system because it does not allow for a stable govt. It is not conducive to the peace process. During the last four years there were three elections. If the instability goes on there will be another election. Again the question is whether we can have a stable government even after that. This kind of instability hampers the peace process. 'It is unconstitutional' - Attorney at Law J. C. Weliamuna
Q.The Government is planning to amend the present Constitution in order to rectify its weaknesses and find a solution to the North and East problem. What are your views? A. Most people believe that we have to have a new Constitution or an improved one to address the present problems of the country, because the present Constitution has weaknesses and defects. But the question is how are we going to annul it? The basic recognised method is to introduce a new Constitution in accordance with constitutional provisions. The 1978 Constitution has specific provision that the draft Constitution has to be passed in Parliament by a 2/3 majority. In addition if provisions are inconsistent with the Constitution, then go for a Referendum as well. It is mandatory to follow these rules when there is a provision in the present Constitution. But someone will ask whether it is possible to introduce a new Constitution with these provisions. Yes, it is possible. The best example is the 17th amendment. All parties got together for that effort and there was no opposition because it was a genuine effort. It was passed by Parliament unanimously without a Referendum. But the Government is now resorting to another method of amending the Constitution which has not been welcome in most other countries. That is called changing the constitution according to the "Grumd norm theory". If the Constitution cannot be changed and if there are no possibilities of changing it, then somebody will adopt a Constitution. It happened in Sudan and Pakistan where there was total calamity or totally unmanageable situation soon after military coups. So there was no provision to introduce a Constitution in those countries. But Sri Lanka is not a Sudan or Pakistan to introduce such a partial constitution. Q. Then how was the 1978 Constitution introduced? It was not presented for public debate. A. It was introduced under the provisions in the 1972 Constitution. But the 1972 constitution was not introduced under the Soulbary Constitution because all the political parties in Sri Lanka including the UNP and Tamil parties agreed that we needed a home grown Constitution which was passed outside the law. There was unanimity among major parties though there was a debate on the content. They sat in Nawaragahala and became a Constituent Assembly. But we have to keep in mind that now nobody can use the 1972 method as an example to change the main process of drafting a Constitution because today its a different scenario. We still don't know what the Government is going to do. But according to views in newspapers of the promoters of the new Constitution and political leadership, they are coming out with all types of conflicting theories. But I gather when I read between lines that they are going to have closed door discussions with a select number of people to draft the new Constitution. Then pass it in the Constituent Assembly and put it before the people. All these attempts are totally illegal. It sets a bad precedent because when there is a change of government there can be a new Constitution. Its is a terribly bad procedure that they have adopted. It is unethical for Constitutional makers to even think like this because the process is wrong. Because, basically Constitutions are drafted after public discussions. But, has there been a discussion until now? Q. Was there any public discussion of the 1978 Constitution draft? A. The 1978 Constitution also is a questionable one because it was not presented for public discussion. That does not mean that the UPFA has a right to follow what J.R. Jayawandene did. The present Constitution is going to be one drafted by a handful of people picked by the political Head. But they must understand that the Constitution is not their personal deed. It is not the deed of their personal property. The Drafting is also questionable because it lacks transparency. Thereafter, the Government plans to present it in the Constituent Assembly and later put it before the people. The President will direct the Elections Commissioner to call a Referendum. But this Referendum will be a totally unconstitutional one because this is not a Constitution making Referendum. Referendums are clearly classified in the Constitution. It says that if a new Constitution is to be introduced by a Constituent Assembly, first obtain a 2/3rd majority in the House. Before that the Government must show that at least they have a simple majority in the House. Q. But at a Referendum people can decide what they want. Do you say that they are denied that right? A. From a Referendum the Government will only ask a question. That does not make a Law. By using that method you cannot introduce a Law. Q. If people say yes to that document? A. People will be asked a printed question whether they accept this Constitution or not. According to my view this question also can not be asked lawfully under the present Constitution. Q. What is the reason? A. The reason is very clear, that is, a Constitutional question at a referendum to introduce a law. If it is to introduce a law, then a law making Referendum has a prerequisite, that is first get 2/3 majority in the House. I gather from what politicians say that later the judiciary will decide. That is the question. If judges accept it then it will become law even though it is totally illegal. It happened in Sudan and Pakistan. Basically they pressurise the judiciary to recognise their Constitution. We don't know what will happen in Sri Lanka. However, the UPFA is confident of the judicial process. Its a huge question. At the end, my personal view is that the political process adopting the new Constitution will lead to turmoil in the country. If Tamil political parties, the UNP, and other parties withdraw from the Constituent Assembly, are we going to introduce a one party (UPFA) Constitution?. There should be a combined effort. The whole mistake is that the UPFA is trying to have a Constitution of their own like what J.R.Jayawandene did. Q. How do we get them together to amend the Constitution or introduce a new Constitution? A. There is a way out. The entire country is undoubtably supportive of a new Constitution due to so many reasons. All the political parties will agree upon certain issues such as ensuring the independence of members of Parliament, integrity of institutions, change, of Presidency, financial accountability of the country (Auditor Generals powers needs to be improved), electoral system, etc. It is for the UPFA to convince other political parties on these vital issues and amend the Constitution, if they have a real interest without playing politics. Then other parties will certainly join with the Government to address these issues. Then the process will be normal and Constitutional. Q. But this Constitution will address the North and East issue as well. A. Then why are they hiding it. It is true that the 1972 and 1978 Constitutions did not address the North and East issue. Whether it is an ethnic problem or not ultimately it will be a political settlement. To have a political settlement, we need to have a Constitution which tackles the problem. Our Constitution does not permit a settlement of the North and East issue because it start by saying it is a unitary Constitution. Buddhism is the main religion. I am not saying that Sri Lanka should not be a unitary state. But the issue is the law makers should have taken care of this situation. Q. Do you say that the outcome of the Constitutional Assembly will be an illegal document? A. It is a difficult question to answer. Because if the Supreme Court or judicial system recognises it, then its a lawful document and it is valid. But at the moment we are at the process stage. The process is wrong. You can not get the process right by getting the stamp of legality from the judiciary. Then the question of the integrity of the judiciary will come up. But subject to that we will have a different Constitution but we are running a huge risk of bad precedence. If the Tamils MPs in the North and East get together and frame a Constitution who can stop it because they will also follow the same procedure. Q. You said the 2/3 majority in the House is mandatory to pass the new Constitution. But there is a trap in this Constitution. The electoral system does not allow any party to obtain a 2/3 majority, but emphasises the need a 2/3 majority for Constitutional amendments. It is a conflicting issue? A. There is no trap. That is one of the reasons why people have some breathing space on good governance. No Constitution is changed by a single party in the world. In other countries Constitutional change means a combined effort. It was J. R. Jayawardane who did it as a one party exercise with a 5/6 majority. But it is not a trap laid in the Constitution because it prevents political parties abusing power for their survival. Like the 17th amendment why can not they get together to address national issues. Q. But the major issue is the North and East problem. When the 2000 draft Constitution was introduced the UNP sabotaged it and provoked hardliners to protest against it. So how are we going to solve this problem? A. If the Constitutional amendments have been prepared purely to settle the North and East problem, at least major political parties will get together. But I am not saying the Jathika Hela Urumaya will support it. But if it goes beyond the North and East problem, then other parties will not support it. Certainly my view is that the People's Alliance, the UNP with Tamil parties will also support, if there are Constitutional amendments for the North and East problem. While negotiations are on, the Government must try to get the support from the South as well. Q. You must me aware of what Charles De Gaulle did in France when his decision to have the people to directly elect the President, after he completed his two terms was opposed by the National Council, which brought a no confidence motion against him. De Gaulle dissolved the National Council and put the proposal before peoplewho supported it. Every one respected the people's decision. The French Constitution continues to exist even today. Are you contending our public do not have the right to decide what they want. A. Are you telling me that we need a De Gaullian Constitution here. The background to the fifth French Constitution is different. You can not compare our situation today with their situation in 1958. The French people at that time decided to have an Executive Presidential system. Are we going to follow the same way he got to pass the Constitution. He suppressed student movements, etc. |
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