‘Need safeguards against majoritarianism’

(By Dr.Jayampathy Wickramaratne )Jayampathy Wickramaratne on the importance of an inclusive Constitution in Sri Lanka.

Jayampathy Wickramaratne, 67, is one of the most keenly watched persons in Sri Lanka at the moment. He chairs the committee appointed by Prime Minister Ranil Wickremesinghe to provide technical support to the Constitution-making process currently underway. A constitutional expert and Member of Parliament, he had served as a member of the team that drafted the Constitution Bill of 2000, which emphasised the country’s pluralistic character. He was also a signatory to the “majority report” of the All-Party Representative Committee of 2006-2010, proposing a strong power-sharing arrangement.

In an interview with T. Ramakrishnan, Dr. Wickramaratne downplays his new role, saying it is like that of “any other Member of Parliament and an ordinary member of the proposed Constitutional Assembly”. He dwells forth on devolution of powers, the importance of a “democratic” and “very inclusive” Constitution, and the urgency of the Constitution-making process, while clarifying that his views reflect those of the majority group of the Lanka Sama Samaja Party and not necessarily those of the government. Excerpts:

What are the main weaknesses of the present Constitution? What is your response to the criticism that Articles 16, 80 (3) and 84 undermine the supremacy of the stitution?

This Constitution has been built on the foundations of a very centralised form of government. The foundations have already been shattered by the 13th Amendment, 17th Amendment and 19th Amendment. That’s why we need a new Constitution built on a new foundation. I agree that there are several provisions which undermine the concept of supremacy. There is no post-enactment judicial review. A law can be challenged only at the Bill stage. The pre-Constitution laws continue despite being inconsistent with the Constitution. There was also the immunity clause, by which the President was totally immune from judicial review for his actions. Now, we have corrected that to a large extent through the 19th Amendment.

How do you see the road ahead for the new Constitution?

For the first time, we have the two major parties [Sri Lanka Freedom Party and the United National Party] in government. And the parties which have support among various ethnic groups are either in the government or supportive of the constitutional [reform] process. This is a golden opportunity that should not be missed. We all have our own political positions but no party has two-thirds majority. It [the proposed Constitution] will have to be a document arrived at by compromise and consensus.

Are you optimistic that the entire process can be completed in six months?

Six months would be ideal. We shouldn’t be delaying this process [any further] because we have been talking about the issues that have come up for discussion since 1978. Also, coalitions do not last long.

What should be the guiding principles of a new Constitution?

It must be a democratic Constitution. Democracy also means that it must be a very inclusive Constitution. Sri Lanka is a multicultural society. We have ethnic groups as well as political minorities, smaller parties. I come from such a political minority. They all must be included in the process of government.

In the event of the abolition of executive presidency, what would be the President’s role? Will he or she be like India’s, a mere figurehead?

Our party has always stood for the parliamentary form of government. The President can be given certain functions. For example, in India, he has the right to refer Bills back to Parliament.

Your stand on the 13th Amendment has been that it has inherent flaws and only enabled those who are against devolution to take back powers. What safeguards should be provided in the new Constitution?

We have seen under the 13th Amendment that in the guise of making a national policy, powers have been taken back. We must definitely prevent that. Subjects and functions devolved to provincial councils must be clearly identified. I have no problem with national policies being made on certain devolved issues such as education, agriculture and health. But when a national policy is made, it must be through a constitutionally mandated process which is participatory, involving the provinces.

How would the new Constitution tackle issues concerning economic development and regional disparities?

We, in the Left, always see devolution not only as a solution to the ethnic issue but also as an instrument of addressing the issue of disparities in the area of development. Powers should be devolved not only to provincial councils but also further down. I am not saying local authorities should be given legislative power. But some of the subjects and functions of provincial councils can be easily administered by the local authorities. That will empower people.

Won’t provincial councils think their powers will be undermined?

While I am for powers being given to local governments, I am clearly saying that local government must continue to be a devolved subject. Any relationship of the Central government with the local governments must be through provincial councils.

You have been against labelling a new Constitution as “unitary” or “federal”…

What is important is not the label. Take a look at the fears of some Sinhalese. They feel that devolution could lead to separation. When a large majority of the Sinhalese use the word ‘unitary’, they mean an indivisible state. The Tamils fear that what will be given today can be taken back tomorrow. So, they want safeguards.

We have to build in safeguards against possible separatist tendencies. At the same time, I am also for safeguards against the majority of this country getting together and taking away all that is given [now]. There are at least three ways of building such safeguards while adopting any constitutional amendment on devolution. One is for all provincial councils to agree. Two, get a simple majority of MPs elected from each of the provinces, apart from two-thirds majority in the lower chamber of Parliament. The third way is by getting two-thirds majority in the second chamber too, which is largely representative of the provinces.

How can the representation of provinces in the second chamber be worked out?

You can have five members elected by each of the provinces. Within a provincial council, [the election can be] by way of single transferable vote so that smaller communities and smaller parties also get represented. Still, if there is any community not getting represented, we can provide for a very limited number to be selected through a generally acceptable method.

Can you elaborate on your suggestion of guaranteeing social, economic and cultural rights to the people drawing lessons from the experiences of the Constitutions of South Africa and East Timor?

For social justice to be ensured, there must be minimum guarantees provided by the Constitution. That is why we want to include social, economic and cultural rights. Not only that, very importantly, we are also for children’s and women’s rights.

In the light of the Commonwealth Observer Group pointing out that women account for only about five per cent of the MPs, would you provide for women’s quota in legislature?

This has to be discussed. Definitely, to start with, at the provincial and at the local level, we can (provide for the quota). We need to see how it can be used at the Parliamentary level also. If you are going to have constituencies, there can be more women. In the present system of preferential voting where various candidates of the same party compete with each other, women are at a disadvantage. When we had constituencies, I cannot remember a single instance of a person not being elected from a political party only because that person is a woman. We have had in the past good women candidates. They were at par with others. It is up to parties to nominate women. These are the things that we need to discuss.

Is the replacement of the system of preferential voting a pre-requisite to greater women’s participation?

I would think so. That would definitely help. Having said that, we are for a healthy mix of first past the post and proportional representation which overall ensures that political parties get representation according to the support they have.

Do you foresee a scenario that once a new Constitution is adopted or constitutional reforms are carried out, leader from a minority [community] becomes President or Prime Minister, as it has happened in India and other countries?

If that can happen, it will be very good for democracy…. I have no problem with anybody becoming Prime Minister of President as long as they are elected by people or through a constitutionally-mandated process.


January 27, 2016

Courtesy – The Hindu

Dr. Jayampathy WickramaratneDr.Jayampathy Wickramaratne holds a PhD in Human rights and a Master of Public Administration from University of Peradeniya. Wickramaratne was appointed a President’s Counsel in 2001.He is a national list member of the Sri Lankan Parliament.A former Director of Programs of the Institute of Constitutional Studies in Colombo, he has served as a Senior Adviser to the Ministry of Constitutional Affairs and was a member of the Sri Lankan Law Commission.

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