Abolishing the Executive Presidency

Fundamental changes to constitutional structure needed - Dr Jayampathy

Interviews by Manjula Fernando

Q: Is there a necessity for a new Constitution for Sri Lanka. India's Constitution was drafted in 1950 and even after 100 amendments, no government thought of replacing it?

A: In India, according to the Supreme Court, the basic structure of the Constitution cannot be changed. But in our case, the 1978 Constitution was modeled on a presidential form of government with a strong executive at the centre. Today there is a mandate for the abolition of the Executive Presidency. It calls for fundamental changes to the present constitutional structure. No new Constitution can be built on the existing structure, that is the reason why we need a new Constitution.

Q: The main allegations against the two Republican Constitutions of Sri Lanka is that they were violent and caused division and heightened suspicion among communities. Your comments?

A: The 1972 Constitution and 1978, as originally enacted are basically majoritarian Constitutions. While the 1972 Constitution had very good features such as the breakaway from the British crown, the introduction of fundamental rights, it also set up a centralised structure dominated by the majority.

For example even the safeguards for public servants were taken away. I understand the need to ensure that the public service works in accordance with the decisions taken by the executive but without stopping there even appointments, transfers, disciplinary control and dismissal of public service and the police were brought under the Cabinet of Ministers. The 1978 Constitution followed suit and made it worse.

Q: How do you propose to do that, have you come up with any suggestions ?

A: Yes and no. These issues have been talked about for the last so many years. With regard to the presidential form of government, we have been having a 37-year-old debate. The people's voice is clear - they want to do away with the Executive Presidency.

The APRC proposals were tested a few months before the end of the war. A large number of people, even among the Sinhalese endorsed these proposals. When the poll was re-conducted one year after the war, the support for an APRC type of a political solution had shot up to nearly 80 per cent. These figures speak for themselves.

A Tamil academic told me once,Tamil hardliners don't want a political solution but a hardline government in Colombo because they stand to benefit from that.

Q: But there are concerns that the LTTE is re-grouping elsewhere and the demand for a separate state is still valid?

A: The LTTE was defeated in Sri Lanka but the LTTE is out there.The LTTE is a fringe group now.

Some individuals in the Tamil diaspora whose names were taken out from the banned list, used to be pro-LTTE and argue with us. But its refreshing to see that some of them have renounced violence and accept that the ethnic issue needs a political solution.

Q: There will not be any loose provisions in the new Constitution to fuel cessation?

A: There will be clear safeguards against cessation, in fact there were such safeguards in the 2000 draft Constitution also, provisions to outlaw separatism.

Q: There is the 1987 example, former Chief Minister Varadarajah Perumal unilaterally declared independence.

A: I am not defending what the Vardarajah Perumal administration did. But what led to that was the negation of the 13th Amendment and mollycoddling the LTTE. The LTTE wanted to eliminate the Varadarajah Perumal administration. The declaration was foolish and they accept it now.

But when separatist elements are roped into a political solution, those devolved powers were never used to separate. There is not a single example in the world.

In Scotland, it was on the brink of leaving the UK. It was a separate kingdom forced into the United Kingdom against the wishes of the Scottish people.

But since there are people in the country who think that devolution may lead to separation, we have to address their concerns, and therefore we need to put in place, constitutional safeguards, against cessation and against any powers devolved in the provinces being misused.

Q: How will it affect the day-to-day life of the people - Devolution and a new Constitution ?

A: A political solution would mean that this country makes peace. We won the war but we did not win peace. If we regain peace in that way, then, relations between the communities will be much better. Defence expenditure can drop. That is as far as the ethnic issue is concerned. Devolution will also solve the development of underdeveloped areas.

I was born in a remote village called urukohogama in the foothills of the Knuckles range. My grandfather went to teach there and we became naturalized Kandyans. When I came to a big school in Kandy city, I realised the difference. The village is much better now but the development gap between Kandy and Kurukohogama is still wide.

You need devolution not only to solve the ethnic issue but also to strengthen the periphery. It must be done genuinely.

Q: There is a committee of parliamentarians and an expert committee appointed to discuss the draft Constitution, when will the people and civil society come into play ?

A: Last Saturday the Cabinet Sub-committee met and decided to go ahead with the parliamentary process. Parliament will appoint a Commission to lead the public consultation process.

The Cabinet committee itself will call for public submissions within the next few days, even before the Commission is appointed. A group of researchers and volunteers will assist in the process to analyze the feed back. We will encourage civil society to have their own campaign in this process.

Q: Is this a time bound process ?

A: There is no time bar. We would like to finish it in six months ideally.

Q: We were on the brink of introducing the 20th Amendment with electoral reform?

A: The new Constitution will have a new electoral system as well. In my opinion the 20th Amendment failed because it was too close to a general election. Despite what they say in public, most of the political leaders are comfortable with the old electoral system. They had not nursed their electorates.

Q: How can you strike a balance between the protection of citizens and the protection of human rights?

A: I am for a strong Bill of Rights. The trend worldwide is to have a strong Bill of Rights. It must not be limited to civil and political rights but must include social, economic and cultural as well as women and children's rights.

Q: We are discussing repealing the PTA and Emergency regulations, the West is ready to introduce tougher anti terrorism laws.

A: We need to have an anti terrorism law. But such law should be on par with international standards.

There have been international studies on that. Terrorism is a global phenomenon, it has to be met domestically and internationally. There has to be cooperation between governments, but at the same time you need to have protection for people who may be rightly or wrongly accused of terrorism. We need to ensure that they get a fair trial. We also need to have specially trained prosecutors and judges as well as laws to protect witnesses and victims.

Q: Will there be provisions for Hybrid Courts in the new Constitution ?

A: No. Firstly the government has not agreed to a Hybrid Court. It will be a domestic mechanism and will encompass the four corners of the Constitution. That is clear.