In the making of a new constitution:

Electorate is the ultimate arbiter - Suri Ratnapala

by Manjula Fernando

It is possible to have a well-written constitution but that does not necessarily mean a constitution that serves the people, said Emeritus Prof. Suri Ratnapala, a public law professor who played a pivotal role during the constitution- making processes in 1972 and 1978.

Prof. Ratnapala who is in Colombo on the invitation of Prime Minister Ranil Wickremesinghe to share his expertise with the government's effort to draft a 'people friendly' constitution, told the Sunday Observer this was history in the making, as Sri Lanka has never placed a constitution before the people for their approval, making it an inclusive process.

Excerpts:

Q:How do you view the current Sri Lankan Constitution?

A:It is a flawed constitution but not the worst in the world. There are many constitutions which are far worse. You can have a very good constitution written down in a book. But that is not necessarily a constitution that is operational or has a positive impact on the lives of the people. A living constitution is different to a paper constitution. Even if one has a very good written constitution, that does not ensure constitutional governance.In the end, it is the conduct of those who wield power and those who hold people to account that matter. The political culture of the people is critical for the success of a constitution. That needs to be built.

Q:Why should Sri Lanka promulgate a new constitution?

A:Firstly, the current constitution has not worked. It was an adaptation of the French constitutional model, which was amended by successive governments, to make the presidency more powerful. Its biggest defect is that it created an office of an executive president with the ability to overpower the legislature. The supremacy of the Parliament was eroded. That's a major problem with this constitution. There are other issues, but that's the main structural problem, which most people have felt disappointed with. It is clear that the public wants to change that system.

Q:There is a public perception that the all powerful Executive Presidency was well-utilised to eliminate terrorism in Sri Lanka. It is believed that the former president was constitutionally empowered to make unpopular decisions for the benefit of the public due to the powers he derived?

A:Parliamentary democracies also have successfully defeated terrorism. In fact, the biggest war effort the world had ever witnessed, was combated by Prime Minister Winston Churchill, who functioned within a parliamentary system. In a national emergency, a responsible Parliament can take strong decisions to ensure national security. It is not entirely correct to say that an all- powerful presidency is needed to discharge such duties. Certainly, it might have helped.

Q:Collective decision-making, a country needs mature politicians who prioritise the country. But ours is a largely divided society that often promotes partisan views?

A:In India, there are more communities than here. There are more divisions there than in Sri Lanka. The Indian Government runs on a parliamentary system and indeed has curbed terrorist activities continuously. It is possible. But I would agree that governments that represent all communities are likely to be helpful in managing such situations. In the end, the character of the politicians, the spirit of the nation and the communities only can make things work.

Q:You have been invited by the Prime Minster to contribute to the constitution- making process. How involved are you?

A:The Prime Minister and I have been good friends since school and university days. When he sought assistance, I agreed. It was not due to my friendship that I got involved but because I strongly feel there is a great opportunity to make a difference and adopt a constitution that might have a lasting beneficial effect on all people. It is an opportunity to lay a strong constitutional foundation to consolidate democracy. I have that hope within me..

Q:You said you were not part of the previous constitution- making process but represented both the Attorney General and the Solicitor General in constitutional litigation?

A:Yes. The 1972 constitution introduced by the Sirimavo Bandaranaike government was drafted under the leadership of Dr. Colvin R. De Silva. The 1978 Constitution was drafted by a team of experts, including Neelan Tiruchelvam and Harry Jayewardene QC. We had no direct role to play except polish the documents afterwards. I have been involved in a number of cases where I was a junior counsel representing the Attorney General and the Solicitor General. By now, I have a fair amount of experience with the constitution-making in this country, although I have been away for 35 years.

Q:Are we considering any particular model at the moment?

A:There is no one single model that we can simply take off the shelf and plant here. Sri Lanka can derive important lessons and examples from different experiences and different models. There is a strong belief that we should revert to the parliamentary system.

Q:What may serve as role models for Sri Lanka?

A:The most well- known parliamentary system belongs to the United Kingdom. It has faced many challenges, dealt with the Irish insurgency, Falkland's war and it is also a world power. It is indeed a shining good example. Many of the successful, prosperous democracies have robust parliamentary systems; Germany, Japan, Canada, New Zealand and Australia to name a few.

Q:The government received a mandate to abolish the Executive Presidency. What other areas are likely to be priority concerns in the making of a new constitution?

A:Some problems have been eliminated by the introduction of the 19th Amendment, which ensures the independence of key institutions, such as the Judiciary, the Department of Elections, the Auditor General and the Attorney General. It is a major achievement. Parliament has appointed a Constitutional Council as well. The challenge now is to consolidate on that, to make it work, make it strong and last. The other major concern is conserving the unitary nature of the country and ensuring the rights of the minority communities within that framework. It is an ongoing discussion.

Q:Are you discussing the creation of separate Upper and Lower Houses of Parliament?

A:One way in which the constitution protects the regional and minority interests is through an upper house. For example, in Australia, Canada and US, the upper house provides equal representation to the different provinces or states, irrespective of the size of the population. Restoration of the upper house emerged during public discussions. It will have to be considered but there is no final decision.

Q:The government has announced a fairly long process of public consultations. Will it be possible to work within the stipulated time frame for the introduction of a new constitution?

A:I believe, the government has chosen the right process. This is the very first time in our history that a constitution will be adopted by the people.

Q:Is the new constitution likely to embrace a secular state, similar to India?

A:One thing that is undesirable for any constitution is to include discriminatory provisions. There is a notion of higher status being conferred upon Buddhism by the current constitution. It is the responsibility of the government to foster Buddhism while protecting other religions practiced here. The provision has no legally discriminatory effect though it has more cultural significance. No change is envisaged at present.

Q:Is there a likelihood of the fundamental rights chapter being further strengthened as well as the guarantee on freedom of expression?

A:I believe so. One of the contentious features of both the 1972 and 1978 Constitutions is the citizens' inability to challenge any enacted law, Even if it is inconsistent with or violates the same constitution. It is possible to challenge it before it becomes law but not after. The reality is, often we may not know whether a particular law has a damaging effect until something happens or someone is affected by it. I believe that there is consensus on the need to change this. It naturally increases the protection granted by the constitution to all citizens, be it freedom of expression, freedom of religion or equality before the law. This new approach will be a major step in the direction of constitutional governance.

Q:The 13th Amendment remains a contentious topic and is viewed by different groups quite differently. When the new constitution is made, is it going to be 13-less or 13 plus?

A:That is obviously an area where there has to be some serious discussion and agreement. This constitution has to be approved by the people, and they decide the degree of decentralisation acceptable to them. All communities will have to reach some consensus. Naturally, 13 A will be revisited. But the bottom line is that the parties are committed to maintaining the unitary character of the republic.

Q:There is opposition to combining the abolition of Executive Presidency with electoral reforms. Political parties have been debating electoral reforms for years. There is a notion that the linking of electoral reforms to the abolition of the Executive Presidency will result in a non-starter of events. What is your opinion?

A:I am not familiar with the politics of it. But my understanding is that, all the parties are in favour of seriously amending the current electoral system and moving towards a multi- member proportional representation system, which will strike a balance between representative principle and stability. It will still ensure minor party representation and the formation of majority government or coalition governments, which are workable. There is some discussion about the details. The parties favour a system similar to that of New Zealand or Germany.

Q:Former president Mahinda Rajapaksa has opined that the new constitution should be presented as a bill to amend the Constitution, enabling people to petition the Supreme Court if they are not satisfied with the provisions. What is your opinion?

A:I had the opportunity to read Mr. Rajapaksa's comments. What he says is that if the constitution is amended piecemeal, each individual bill can be tested before the Supreme Court to see if it violates Article 2 of the Constitution, which guarantees the unitary character of the State. This is correct, provided the Cabinet of Ministers does not certify that the amendment is intended to be submitted to a referendum under Article 85. In my view, the benefits of adopting a coherent new constitution with the approval of the people, outweighs the consideration advanced by the former president.

Q:The opposition has alleged that this constitution- making process is done to suit Western powers, inferring that the new government is pressurised to go through this process. What is your comment?

A:This is a question to be addressed by the political authorities. My role is strictly technical. However, the countries in the Organisation for Economic Co-operation and Development (OECD) are liberal democracies. It is no secret that they encourage embracing of liberal democratic values and institutions around the world. These are also values promoted by the United Nations. They are values that successive Sri Lankan Governments of different persuasions have embraced. The proposed constitutional reform process is transparent and public. The electorate will be the ultimate arbiter of the shape and content of any new constitutional arrangement.

Q:You have returned to Sri Lanka after 35 years. You have been mostly a distant observer of what happened in this island over the past two decades including events like the JVP insurrection and the LTTE war, for which, some blame the present Constitution. What right do you have to be involved in the constitution- making process in this backdrop?

A:I do not claim any right, moral or otherwise, to be involved in the constitution-making process here. I am responding to a request by the Prime Minister to provide technical assistance. The tragedies of the past had multiple causes and some of these predate the present constitution. The democratic deficits and the structural weaknesses of post-independence constitutions would not have helped. The constitutional history of the nation offers some invaluable lessons. It would be a mistake not to heed them.