08 03 2016
The New Constitutional Edifice
By Jayampathy Wickramaratne*Translation of the speech made by Dr. Jayampathy Wickramaratne in Parliament on 23.02.2016 on the Resolution for setting up a Constitutional Assembly, as a Committee of the whole House
Today, a golden opportunity has opened up for us to build a new constitutional edifice, with the broad support of the people and various political parties. We take the first step towards that today. Why do I say so? Have we not made constitutions before with the support of the people and all political parties? The 1947-48 Constitution was not made by us. It was given to us by our colonial masters, the British. It is true that the Soulbury Commission heard the views of the people to some extent and that the Ministers’ Draft was considered. But, finally, it was a constitution imposed on us by the British. That is why it was opposed. There was considerable interest in adopting soon, a constitution rooted in our soil, an autochthonous constitution, as other countries that emerged from colonial rule did.
There were several issues. Could we have repealed the Soulbury Constitution was a whole, acting through Parliament? Dicta of the Privy Council in several cases raised doubts about that. Also, a two-thirds majority for any party seemed impossible to achieve. So, the United Front, at the general elections of 1970 asked for a mandate from the people to adopt a new constitution, acting through a Constituent Assembly outside Parliament. Quite unexpectedly, the United Front obtained more than a two-thirds majority. However, because of the legal issue mentioned earlier, a new constitution was not attempted through the Parliamentary process. Most people do not know that when the Members of Parliament were invited to meet at the Nava Rangahala, all 157 MPs, representing the Government and the Opposition, attended the first meeting. The Federal Party, Tamil Congress, United National Party, Lanka Sama Samaja Party, Communist Party- they all attended. There was thus the unique opportunity to build a constitution with the participation of all parties. Mr. Chelvanayagam was an active member of the Steering and Subjects Committee.
It is regrettable that the Constitution that Sri Lanka got was one that the United Front wanted, not one built with the support of all. This is evident through a reading of the Constituent Assembly debates. We, of the Lanka Sama Samaja Party, took part in the exercise. One of our leaders, Dr. Colvin R. de Silva, was the Minister of Constitutional Affairs; that is a different issue. We need to look at what happened objectively. Looking back, that is the lesson to be learnt. Hon. Presiding Member, the best example on the national question is the proposal made by Mr. Dharmalingam, the father of our Hon. Siddarthan. He proposed federalism on behalf of the Federal Party and said: “We ask for a Federal State. But if you cannot accept federalism, can you not at least abolish the Kachcheri system and set up bodies at District level as the parties belonging to the United Front promised at successive elections?”
Sir, that is stated in Column 429 of Volume 1 of the Constituent Assembly Debates of 16th March 1971 and I quote:
“If this Government thinks that it does not have a mandate to establish a federal Constitution, it can at least implement the policies of its leader, S.W.R.D. Bandaranaike, by decentralizing the administration, not in the manner it is being done now, but genuine decentralization, by removing the Kachcheris and in their place establishing elected bodies to administer those regions.” There was no response to the Federal Party’s compromise proposal to set up bodies at District level. All political parties must take the blame for this. Especially, the parties in the United Front Government did not reply, did not respond.
Hon. Presiding Member, if we had responded to the proposal of Mr. Dharmalingam and set up District Councils, the history of this country would well have been different. The Federal Party would not have later discontinued attending the Constituent Assembly. Even if they did not finally support the Constitution, they would have been part of the constitution-making process. We lost that opportunity. Many believe that the Federal party walked out at that stage. They did not. Thereafter, they tried to come to an understanding about language but even that was not possible.
What did Mr. Chelvanayagam then say in the Constituent Assembly? He did it very apologetically. There was no walkout. He said,” We do not want to make a dramatic walkout. But, I want to announce that from tomorrow, the Federal Party will not attend the Constituent Assembly proceedings.” We lost the opportunity. If we had adopted a constitution that was acceptable to all parties, there would not have been an armed conflict and democracy would have been better preserved. We lost that historic opportunity. The 1972 Constitution had several good features. The complete political break from the British Crown, introduction of fundamental rights and principles of state policy were very progressive steps. But the 1972 established a very centralized structure. The Cabinet of Ministers took over powers relating to the public service. The final decision regarding appointments to the lower judiciary was for the Cabinet to make. The Constitution did not therefore last long.
Before bringing in the 1978 Constitution, the United National Party stated at the elections that it accepted that there was an ethnic problem. In its election manifesto, the United National Party accepted that the Tamil people have been pushed to separatism as their problems had not been solved. This is the first time that a non-Left party had made such a statement. But what happened after winning a 5/6 majority at the elections? Before the elections they said that they would convene a round-table conference. But there was no discussion or a round-table. As the United Front did in 1972, the United National Party imposed on the country the Constitution it wanted. We live under that Constitution today.
Hon. Presiding Member, what is the need for a new constitution? Why do we stand for a new Constitution? The 1978 Constitution is based on the executive presidency. That foundation has now cracked. Some of the executive powers were devolved on Provincial Councils by the Thirteenth Amendment. There is another big contradiction. That is an Executive Presidency at the Centre and a Parliamentary form of government in Provincial Councils.
By the Seventeenth Amendment, we took away some of the powers of the Executive Presidency. But the last Government negated all that through the Eighteenth Amendment and made our Executive Presidency the strongest in the world. But after our victory on January 08, we were able to take away about 60 to 65 per cent of the powers of the Executive Presidency. President Maitripala Sirisena has made it clear, especially at the funeral of Maduluwawe Sobitha Nayaka Thero, that he stands for the complete abolition of the Executive Presidency. Hon. Presiding Member, we cannot build a new constitutional framework on this old foundation. A constitution does not mean only the abolition of the Executive Presidency. We need to find a solution to the national issue. A new electoral system is needed. A new fundamental rights chapter is needed. Our fundamental rights are restricted to civil and political rights. What is the trend all over the world? In addition to civil and political rights, women’s rights, children’s rights, social, economic and cultural rights are included in constitutions as rights enforceable through courts. We need such a modern constitution. Not merely a new constitution but a modern constitution.
There are three ways in which a new constitution can be achieved. One is to meet outside Parliament and adopt a constitution as in 1972. But we cannot go outside the Constitution after every general election. Especially after passing the Seventeenth and Nineteenth Amendment almost unanimously, we cannot go outside the Constitution as was done in 1972. The second is to work through a Select Committee. There was such a Select Committee in 1996-2000 during the Presidency of Chandrika Bandaranaike Kumaratunga. I attended it in my capacity of the Consultant of the Ministry of Constitutional Affairs. On the basis of my experience, I say that the Select Committee procedure must never be adopted for constitutional reform. Why? A Select Committee does not meet in public. Those outside do not know what is happening in the Committee. Some MPs say one thing outside and another in the Committee. Documents presented are not known to the country; it is not transparent. The Select Committee process is not transparent and that is why I support the resolution before us. This time, a constitution will not be made through a process where a committee sits in a closed room. All 225 of us will sit as a Committee of the whole House in the chamber of Parliament to make a constitution. This is a very open, very transparent process.
Parallel to this, the Public Representations Committee is functioning very well, visiting all Districts to receive representations of the public. An opportunity is given to Sri Lankans living abroad to make representations through video conferencing. Every word of what we say in the Constitutional Assembly will be published in Hansard. The whole country will be able see the proceedings on television and hear them over the radio. All documents produced will go into Hansard. What has been proposed is a very transparent process. I cannot think of a better process. That is why I fully support the proposed process.
Hon. Presiding Member, I will describe in detail the Constitutional Assembly that is proposed. All 225 of the Members of Parliament will meet as a Committee. There will be a 21-member Steering Committee representing all Parties. The main work will be done by that Committee. Based on the discussions in the plenary that all 225 of us take part in, the reports of the various sub-committees and the report of the Public Representative Committee, the Steering Committee will prepare an initial draft. All this is stated in great detail in the resolution. The initial draft will then be discussed at a general debate and MPs can propose amendments. After such a full debate, the Steering Committee will meet to consider views expressed at the debate and amendments proposed and submit a draft constitutional proposal to the committee of the whole House. As stated in this resolution, the draft constitutional proposal will then be discussed clause by clause. We will thus try to prepare a draft that can muster a two-thirds majority. Out task is then complete.
The Cabinet of Ministers takes over from there. The Cabinet will certify the draft as a Bill that requires to be passed by a two-thirds majority and approved at a Referendum. It is then published in the Gazette. The Bill will be sent to all Provincial Councils as required by the Constitution. Anyone can challenge the Bill in the Supreme Court. The Constitution states that where the Bill is certified as one requiring the approval of the People at a Referendum, the Supreme Court has no jurisdiction over the Bill. But still, there is nothing to prevent anyone from going before the Supreme Court.
Thereafter, the Bill will be debated in Parliament as any other Bill. It will be discussed clause by clause and approved by a two-thirds majority. Thereafter, it will be approved at a Referendum. I cannot propose a constitutional reform process which is more transparent, with more participation of the people and with more involvement of all parties and communities. Those who oppose this do so for two reasons. Some do so for purely political reasons. Some do not support this process because of their reluctance to take a stand on the various issues that will come up in the debate.
We must begin this process with an open mind. All issues must be on the table for discussion. We have our own respective ideals. As a Leftist, my ideal is socialism. Some parties are for a mixed-economy. There are parties who wish to continue with a capitalist economy. There are parties that are committed to a unitary state and others who are for a federal state. Finally it will be a compromise. We need to agree on a compromise constitution, a consensus constitution, without imposing a constitution as was done in 1972 and 1978. All will not agree on all the provisions of the Constitution. This is an opportunity to adopt a constitution that is acceptable to the people as a whole and to all political parties.
I say that this is a golden opportunity for another reason. Hon. Presiding Member, the United Front had a two-thirds majority in 1972. In 1978, the United National Party had a five-sixths majority. Today, the United National Party does not even have a simple majority, let alone a two-thirds majority. The Sri Lanka Freedom Party does not have even a simple majority. But these parties work together. Together with parties that sit in the Opposition, such as the Tamil National Alliance, the EPDP and others, this Government has the support of two-thirds of Members. We were able to pass the second and third readings of the Budget with a two-thirds majority. Thus, the chances of approving a Constitution with a two-thirds majority are very high. But what we should do is not to pass the Constitution with the votes that we already have. We must try to garner more support. Not all will support us finally. But we must try to get the support of as many as possible after a healthy debate. It is through such a debate that the people will know why some oppose for narrow political gain. That is why an extensive discourse is needed.
Hon. Presiding Member, with your permission, I would like to mention a political matter in conclusion. In this Parliament, I represent the Majority Group of the Lanka Sama Samaja Party. Our former leader, Dr. N.M. Perera, stood for a new constitution from 1978. He pointed out the weaknesses of the 1978 Constitution. With remarkable foresight, as if he was looking at a magical black pigment, he prophesied how things would turn out. Most happened in the manner he predicted. In addition, we have experiences of many years. We cannot go back to a situation of conflict. We need to find a solution to the national question. We must get the acceptance of all political parties and the Sinhala, Tamil, Muslim, Hill-country Tamil and other communities for a long-lasting constitution.
As I said before, we need a modern constitution. We may have to amend a constitution. I am not opposed to amending constitutions, as a matter of principle. If a constitution needs amendment, it must be amended. But we must try our best to create a modern constitution that is long-lasting. We do not need a mere document as a new constitution but a Constitution that is forward-looking. We need to make a Constitution, not with a blank stare at the future, but with a futuristic vision. I end my speech expressing hope that we will be fortunate to be able to make a new constitution with a futuristic vision. Thank you.
colombo telegraph.com 03 03 2016