Point Counter point
The making of a new constitution:
This is a test for the Left parties – Dr. Jayampathi Wickremaratne
Subscribing to the strike while the iron is hot theory, Dr.
Jayampathi Wickremaratne, MP and constitutional expert is convinced this
is the best time for the constitution making process, as the two major
parties, the UNP and the SLFP, are working hand in hand in the
government. In an interview with the Sunday Observer on the constitution
making process, he expresses his belief that the new constitution will
put a strain on the opposition as it will definitely do away with the
executive presidency and will give a long lasting solution to the ethnic
Q: We are talking about a Constituent Assembly and a
Constitutional Assembly in the constitution making process. What is the
difference between these two?
A: From 1970 to 1972 there were constitutional reforms that
led to the adoption of the 1972 Constitution. The United Front
consisting of the SLFP, LSSP and the Communist Party at the general
election asked for a mandate to form a constituent assembly consisting
of MPs. That was an extra constitutional process and it did not follow
procedures set out in the existing Soulbury Constitution. The 1978
Constitution was passed according to the procedures laid down in the
1972 Constitution. That was not an extra constitutional process. This
time also we intend to follow the procedures laid down in the 1978
Constitution because we can’t have a Constituent Assembly outside the
parameters of the constitution after every general election.
Q: What is the procedure to be adopted this time?
A: Today there is no need to go outside the parameters of the
constitution. We are not setting up a new body for the constitution
making process. All 225 MPs of the present Parliament will meet as a
committee of the whole House within Parliament because they are
entrusted with a special task and we are giving it a very special name,
Constitutional Assembly. The 1970 - 72 Constituent Assembly adopted a
new constitution. The New Constitutional Assembly will not adopt a new
constitution. That will be left for Parliament meeting as a Parliament
not as a Committee of the whole House. The Constitutional Assembly is
tasked with coming out with a consensus document, a draft constitution
which can muster two thirds majority, the basic requirement for any
Q: What would be the procedure adopted by the Constitutional
Assembly in formulating the new constitution?
A: Unlike in the past, we will adopt a transparent process
when making the new constitution. This time Parliament will be sitting
as a Committee of the whole House therefore proceedings will be open to
the public and every word that is spoken will be recorded in Hansard.
All the documents to be presented will be pubic documents and therefore
accessible to the people. Also it will be open to the media and to the
Q: How will the Constitutional Assembly act to formulate the
A: It will have its own sub committees and there is procedure
even for some of the sub committees. There will be a 12-member Steering
Committee and it will have representatives of all the political parties.
The Steering Committee will be responsible for the business of the
Constitutional Assembly and for preparing the draft of the new
constitution according to decisions taken by the Constitutional
Assembly. Parallel to this process, there will be a public
representation process with a 24- member Public Representation Committee
tasked with collecting and collating submissions made by the public,
summarising them and submitting same to the Constitutional Assembly with
their own recommendations. Apart from that various special groups, like
those working for the rights of women and the disabled can have their
representation to the Constitutional Assembly to make the process very
Q: There is a perception that the constitution making process
is done in violation of the present Constitution. Your comments?
A: The resolution is very clear that the new constitution will
be passed by a two-thirds majority and it will be approved by the people
at a referendum in accordance with the present Constitution. Once the
Steering Committee prepares the draft in accordance with the various
ideas that have been put forward in the Assembly and by the people, the
draft will be placed before the Constitutional Assembly and there will
be a full discussion on the principles of the document before it is
passed. Then the Constitutional Assembly process will end and Cabinet
will take over. The draft that has been approved, will require a two
thirds majority in Parliament for it to be certified as a Bill in
accordance with the present Constitution, after it will be subjected to
Q: Why should it go for a referendum?
A: Article 83 of the Constitution has 13 Articles that
specifically state any bill that amends or repeal those provisions will
have to be subjected to a referendum for people’s approval. Literally
speaking, a referendum is required even to change the commas of those
Q: Some political parties have raised concerns about
representation in the Steering Committee?
A: The Steering Committee consist of the Prime Minister,
Leader of the Opposition, Leader of the House, Minister of Justice and
17 other members. There are observed rules in Parliament and normally
all parties will get representation in the select committees and the
Steering Committee as well. We want to make this inclusive and we will
ensure all parties in Parliament are represented in this Committee.
Q: What are the changes you propose to be included in the new
A: We need a constitution that will do away with the Executive
Presidency and replace it with a parliamentary form of government with
necessary safeguards against abuse of power. Even in the parliamentary
form of government, members of the Cabinet can abuse their powers. We
want to see independent commissions being strengthened, independence of
the judiciary ensured, all democratic institutions and parliamentary
system strengthened under the new constitution. We also want a
constitution which ensures the supremacy of the constitution. We would
like to have in place post-enactment judicial reviews with provisions to
challenge a law once it is passed, because the effect of a Bill can only
be seen once the law is enacted. At present challenging a law is a
violation of the Constitution. We would also like to see a durable
solution to the ethnic question, a new electoral system, provisions to
ensure social, economic and cultural rights and special rights for
children and women.
Q: Your response to the representation by all political
parties, especially the Tamil political parties, with regard to
resolving the ethnic issue?
A: The TNA and other Tamil political parties will be
interested in finding long lasting solution to the ethnic problem. They
will make their own proposals and we need to understand their views and
respond to them positively. We are for power sharing and at the same
time we are also for the unity of the country. Both are not mutually
exclusive. We can learn from other countries, but I am totally against
adopting a particular constitutional model from other countries. We need
to model our own constitution according to our needs.
Q: Some political parties have raised concerns about the
amalgamation of the North and Eastern Provinces in the constitution.
A: This will be what the TNA will propose because the two
provinces were temporarily merged and a referendum was never held. There
was a demerger judgement. So they will come up with the proposal. My
position is that any amalgamation or any change of boundaries, any shift
of people from one place to another, must be done only with the consent
of the people. The receiving province must agree that the consent of the
people of that particular province is necessary.
Q: We are talking about the rights of the minority but what
about the rights of the majority people in the country?
A: The majority rights should also be safeguard and there is
no question about it. Usually, special provisions are needed to
safeguard minority rights. If the majority also think there should be
special provisions to safeguard their rights, why not we have it. But
not at the expense of minority rights.
Q: What about the time frame given to complete the
constitution making process?
A: I think we need to complete it in six months, we have been
discussing most of the issues for past so many decades and we do not
need to reinvent the wheel. Constitutional reforms were in the public
domain for many years. However, this is the first time the two parties
are involved in this process. When parties get together the relationship
may come under strain. Hopefully, we can avert in the next four and half
years. Why take chances when the relationship is good. We have to strike
while the iron is hot.
Q: Do you think the government can secure the support of all
A: This is a test for the left parties like the LSSP and the
CP. What are they going to expect from a new constitution, which I am
sure will be supported by a large number of leftists in this country. So
how can they oppose it. This constitution is going to put a strain on
the joint opposition as well. How is Tissa Vitharana going to oppose a
constitution, which does away Executive Presidency and provides a
lasting solution to the ethnic issue? How can he do that? It will
certainly put a strain on the opposition.