'Public opinion matters'

New Constitution, grand compromise on the cards:

Manjula Fernando

Refuting Opposition allegations that the new Constitution is a 'death trap' dictated upon by Western Powers, Constitutional Law expert Dr.Jayampathy Wickremaratne, a leading member in the constitution-making process said public opinion should not be swayed by political rhetoric.

"I must tell you that not a single Article of the Constitution has been drafted. Even a formal drafting committee is yet to be appointed," he said referring to rumours that a secret draft of the new Constitution was being discussed.

"We have to get the preliminary agreements on what is possible, before we move on to the drafting stage. So this whole story that there is a draft is wrong," he said while asserting the process was moving ahead with political parties agreeing on many of the contentious issues, including electoral reform.

Dr.Wickremaratne said if all goes well, a draft Constitution will be ready by the end of this year.

Excerpts of the interview:

Q:Is the constitution- making process progressing well. Any stumbling blocks?

A: The resolution to set up the constitutional assembly was approved in Parliament unanimously. The subcommittees were appointed unanimously. Experts were also appointed unanimously. The steering committee consists of members from all parties. The UPFA members from the government as well as the Joint Opposition are represented in these committees.

I am happy to say all members, including those of the minor parties JVP, TNA, EPDP and the Opposition took part in deliberations enthusiastically. The sub committees are also representative of all parties and the subcommittee chairs have been distributed among the opposition as well. Bandula Gunawardena chairs the subcommittee on Public Finance.

The 21-member steering committee is holding deliberations and is directly involved with some of the more important issues such as the nature of the state, executive, electoral reforms, principles of devolution, religion and the Executive.

The subcommittees are on Fundamental Rights, the Judiciary, Public Finance, Law and Order and centre-periphery relations.

We are now waiting for the sub committees to hand over their reports. The Constitutional Assembly has appointed its own experts and the sub committees have been given a free hand, to get the assistance of resource persons. All the committees have been getting on board various experts.

The Public Representations Committee (PRC) report is being used to get the views of the public. Certain organisations which did not meet the PRC, have been invited by the sub committees. Political parties who are non-represented in Parliament were also invited to the steering committee. That is the process, as far as the substance is concerned.

The subcommittee reports are due on July 31. The steering Committee had a meeting with the chairmen of the subcommittees recently. They have reported progress and all asked not more than one more week to finalise their reports. Hence, we expect the subcommittee reports by the end of the first week of August.

The steering committee is working mainly on electoral reforms, there is broad agreement on a number of issues including a mixed Member proportional system, the details have to be worked out. It will be done sooner than later.

Q: On the electoral reforms, the issue was with the minority parties. They were afraid the new mixed system will wipe out their chances of entering Parliament?

A: All parties including the minority parties have agreed in principle that overall it will be Proportional Representation (PR) but within that there will be the features of First-Past-the-Post system incorporated. But the cutoff point, if it is going to be national or provincial, that has to be decided. There is broad agreement that we stick to one ballot paper and two votes to select the party and the member of choice.

Q: What will happen to the National List?

A:It is very unlikely that there will be a National List. But the PR component, will have to be worked out. The National List would be worked into the PR.

Nothing is confirmed yet, these are still under discussion. We move on the basis that nothing is agreed upon until everything is agreed. But there is broad agreement and definite progress on the electoral reforms.

Q: Minority parties are willing to compromise?

A: Not only the minority parties, the bigger parties are also willing to accommodate different views. Discussions are on the understanding that finally it will have to be a grand compromise. I cannot give you more details on that at this stage.

Q: What will be the key features of the new Constitution?

A:The main issues are the nature of the State which we will be tackled at a later stage. If you start with the nature of the state, I don't think you will get anywhere. First, let us see what we can agree on. You have to have a Constitution that will pave the way for reconciliation.

My view is that we should build on the experiences of the 13th Amendment. We know what happened and what did not happen during the 28 years of devolution, so we can take those into account and improve on the existing law.

Q:13-A is legislation that could not be implemented for decades?

A: It was not implemented for various reasons, because it had various structural problems. We have to get over those things. Some provisions are not clear, for example national policy is laid down by the centre but at the same time, the centre took away administration of some of the subjects on which national policy was made, which may have violated the provisions in the 13th Amendment.

Q: Will there be a compromise on land and police powers as well ?

A: Well everything is at the stage. I cannot and am not authorised to tell you anything off hand. The way the parties got about this whole process is encouraging. It is likely we will have a draft acceptable to the large majority of parties in Parliament.

Q: Is there a likelihood of a federal structure in the new Constitution, is it being discussed?

A: We haven't even come to that stage where we discuss the 'nature of the state'. There is no issue of a federal structure. We will first deal with the principles of devolution. Currently that is being discussed at the steering committee. Sub committees are also working on various issues, relating to devolution.

We have a -eriphery relations committee, which means devolution is going to stay. No one is asking for the abolition of provincial councils. The question is how we work it out overcoming challenges connected to past experiences.

Q: The Joint Opposition members are holding positions in the constitutional making process, some are even heading the sub committees. But at the same time they have been calling the new Constitution in the making a death trap. Your comments ?

A: I don't know the logic behind that. The Constitutional Assembly was approved unanimously by Parliament. The steering committee and the sub committees were appointed without any division among the political parties. All political parties are involved in the main committees, and even the chairs are shared between the parties. How can you call a process, that they themselves are very much part of, a death trap. I cannot answer that question, you have to ask them.

Q: So the 13th Amendment is going to stay?

A: No I did not say that. Don't put words into my mouth. We will take note of the 13th Amendment and the experiences under the 13th Amendment and move forward.

We are all clear on one thing, that this country should be an indivisible country, territorial integrity should be assured. The TNA has also made a clear statement on that.

Q: The unitary character of the state will be preserved?

A: We will ensure the territorial integrity of the country. Unitary means different things to different people.

Q: There is broad agreement that the Executive Presidency should be abolished ?

A: Earlier, there was some ambiguity on that issue. But President Maithripala Sirisena has reiterated his stance. It is welcome news. The two main parties are now in agreement. We need to discuss now the alternative to the Executive Presidency. We will start discussions on that soon.

Q: There was a meeting of Buddhist priests in one of the prominent temples in Colombo where the Archbishop made a statement saying that Buddhism must be given the due place in the new Constitution?

A: Yes we will definitely take note of that. I must tell you not a single Article of the Constitution has been drafted. Even a formal drafting committee is yet to be appointed. We have to get the preliminary agreements on what is possible before we move on to the drafting stage.

So this whole story that there is a draft of the new Constitution is all wrong. We will take into account the various views presented through the PRC directly and yes it is our duty to take into account the Cardinal's views as well.

Q: Already there are signs of public opposition to the new Constitution, mainly because of the protests and rhetoric by opposition elements ?

A: There will be people who want to sabotage this process. That is to be expected. On the other hand, look at the enthusiasm of the public. We had more than 4000 written submissions, made to the PRC. It visited all the districts and had extensive discussions with the people.

Public representations keep coming in. The respective committees are going into that, I myself make it a point to read as many as these new submissions.

Q:What is the underlying message in these public representations?

A:The underlying message is that people are not happy with the system of governance. We have to take serious note of that and respond.

Q: Have you decided on the North and East provinces - will they be separate administrative units, what is the broad agreement ?

A: That is a matter yet to be decided at committee level. But I can speak for myself. In my opinion don't think the question of the North and East merger arises today. In any case I have no issue if the 13th Amendment provisions provides for a possible merger. But any merger or de-merger should be made with the consent of the people of the areas concerned. You cannot impose mergers on people. That decision must be taken through a democratic process.

Q:How long will it take to wrap up the constitution-making process ?

A: Sooner the better. Speaking for myself, I would like to see the draft being presented to Parliament by the end of the year. That is my wish. If there is political will, we can do it.

Q:At this point it is impossible to say if Sri Lanka will be a secular state under the new Constitution ?

A:Such things are still under discussion. I have my own view on whether it should be a secular constitution or not. But finally it has to be discussed and agreed upon.

Q:Some say there is a popular trend of moving on to secular states. Bangladesh recently adopted a secular constitution, India is a secular state.Your comments?

A: Various people have various suggestions. We have not decided as . We also have to consider that this special place for Buddhism was there in the constitution since 1972. We don't want to get bogged down in these matters. What the people say on various issues will be taken note of. We are sensitive to public opinion.

Q: There is an allegation that the government is under pressure from Western forces to adopt a federal structure and make Sri Lanka a Secular State ?

A: We are mindful of international pressure but more than that we are mindful of the concerns of the people of this country. We will adopt a new Constitution in the exercise of our sovereignty. We will not be allowed to be dictated to by anyone.

What more transparency do you expect? We had a public representation committee going round the country. We keep the public informed of the progress through the media. This will not be an exercise in secrecy. The 'draft' will be discussed widely at the constitutional assembly. There will be an opportunity for the people to respond. After all the new Constitution has to be approved by a two thirds majority in Parliament and the people at a referendum.