Point Counter point

The making of a new constitution:

This is a test for the Left parties – Dr. Jayampathi Wickremaratne

By Ranil Wijayapala

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 problem.

Excerpts

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 constitutional change.

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 public.

Q: How will the Constitutional Assembly act to formulate the new constitution?

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 transparent.

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 a referendum.

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 provisions.

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 constitution?

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. Your response?

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 political parties?

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.