10 December, 2019

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The New Constitutional Edifice

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne

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 Could we have repealed the Soulbury Constitution was a whole, acting through Parliament?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.

*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

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Latest comments

  • 4
    0

    SIXTY EIGHT long years after the colonial masters left, we are still talking about Soulbury et al. We should have left all that in the archives and plotted our own future. Instead our leaders went for the divide and rule option. That ended in a wasteful 30 year old fight.

    We should throw out Hansard, throw out the mace, throw out the wigs and the fancy dress and build ourselves something sensibly SRI LANKAN. Mind you that could be hard given what I see. Go into parliament any day and observe the rabble at work. Some dressed like vedamahath’thayas, others in WOG attire, and others sporting an eclectic range of casual – like they are going to a Tower Hall performance. And the language…..don’t get me started!

    We have capable people with brains. So what is the problem? Only, that these competent fair-minded people should sit down to the sacred task of writing a constitution with integrity, and mindful of the trust placed in them by ALL the people of Sri Lanka. Is that a big ask?

    • 3
      0

      Spring Koha

      “build ourselves something sensibly SRI LANKAN”

      How about amude (අමුඩිෙ), axe (පොරොව), turban (ඉසකඩ), tortoiseshell comb (කැස්බෑ ලෙලි පනාව), ………..

  • 8
    1

    A very sober, well reasoned, elucidating and well delivered speech, that set the right tone for the discussions and debates to follow. I listened to the Sinhala original and the English translation presented here is consonant with it.

    The fact remains that the Soulbury Constitution that Dr.Wickremaratne refers to as something imposed on us by the British, was yet the best out of the three we have had. It was however gutted of its meaning, spirit and intent long before it was buried without any honours. The word ‘Autochthonous ‘ used by Dr.Wickremaratne to describe it, was much more sensitive to the needs of all citizens and communities in Sri Lanka, than the ‘ Homespun’ versions we produced. The homespun versions of 1972 and 1978 were designed to meet the political needs of the individuals and parties who brought forth them. They were big in words, but hollow in content and visionless. They were obstacles to our progress,

    I am glad Dr.Wickremaratne referred today to the need for a futuristic vision in the new constitution. I recommend that the more intelligent and English literate members in our parliament read the book ‘Third Wave’ by Alvin Toffler and translate a summary of the transformation that has already started on a global scale. Alvin Toffler, calls the Early Agricultural Society, the first wave. The transformation into a largely Industrial Society, the second wave and the ongoing transformation into a Technological Society, the third wave that will completely change the way we live. Sri Lanka is yet straddling the first and second waves, while being pushed despite our lack of awareness into the third wave.

    It is thus important for our legislators to understand what the author refers to as the third wave and its characteristics, and open the way for us to ride this wave into the future, with the new constitution. Our children and grandchildren are already caught in this wave. Let us help them ride it without being caught unprepared. We, the old are being made redundant faster than we thought.

    Dr.Rajasingham Narendran

    • 2
      3

      Rajasingham,
      https://www.colombotelegraph.com/index.php/the-new-constitutional-edifice/#comments
      Having followed your narratives in the last three years, I can assure you that you are being made redundant not because you are “old” but rather because you are immature and insincere.

      You try to set sail to every seemingly convenient wind that blows, not knowing which direction you want to go!

      Seem you started with grateful adoration for LTTE, but hi-jacked that recognition to became too big for your shoes. As that wave receded, you set sail anxious to catch the Rajapakse wind ( the “delegate” voyage!), and in the comfort of that embrace, you thought fit to blaggard and condemn the Diaspora to curry favour with the regime. Once that nuptial saw its inevitable booting, you now have no reservations becoming an advocate of “remorse, repentance, and regrets” as remedy for MR, sadly forgetting your own guilt of stupidity in protecting the MR/Gota sins of mass murder by criticizing any initiatives for independent credible war crime investigations.

      And then there were your intermittent attempts to catch the smaller gusts as well, such as leveraging the drinking water issue to kick-start your El Dorado dream, the ”80-slipperless children” issue to avenge the CM for not buying your proposals, and then having made no knots on the CM-condemnation, rushed to berate Gajan as failing in duty by his Dad, having miserably forgotten that the Rajasingham brothers have nothing but zilch to show how their own duty was handled on that same noble concept and responsibility!

      If instead, had you been forthright and sincere in your thoughts declarations, as your education and aging should have molded you, then that “old” would instead be celebrated as the glory that the vintage rightly deserves!

  • 0
    0

    “We have capable people with brains.”

    Spring Koha,, it IS a ‘Big Ask’; the ‘Capable People with Brains’ will stay well away from Politicians with ‘No Brains’!

  • 0
    3

    I heard constitution has lot of crap that helps politicians to continue the way they abuse the country’s resources.

    So, are those stay the way those are, because, politicians don’t want to lose anything ?

  • 4
    1

    To be truly futuristic, the government of Sri Lanka must institutionalise a Federal form of governance. A constitution that falls short on that will not be worth the fuss that is being made.

  • 3
    0

    I dont wish to be a spoilsport.

    Prof:A.J.Wilson,Political Scientist who had written extensively on our Political trajectory,since 1948,until he died a few years ago,is down on record as saying that every assuage towards the Minorities in resolving the National Question,HAS BEEN A CASE OF TOO LITTLE TOO LATE!

    • 0
      1

      How did Sinhale People do it for this long when Indian Tamils wanted to over power them.

      Why it has to be different now, except for those chicken and Gay politicians ?

  • 1
    1

    A very well structured process. The cause of the 30 year violent ethnic conflict is one person one vote. It does not work where there are two linguistic/ethnic communities with one that is 75% and the other 25%.
    If both are to live peacefully, democratically as a whole is to have a system where the 2/3rd to amend or adopt a new constitution may be required at the National Parliament and it should be accepted by each of the provincial councils by a 2/3rd majority.
    Added to this requirement is to define who can vote in a provincial election to prevent altering the ethnic composition of a District and Province by National and Provincial governments.

    Any constitution that has such a built in covenant or a federal solution will not get a 2/3rd majority in parliament. We will be back to the seventies.

    • 1
      1

      n.e.

      This analysis based on two nationalities lost validity or purpose many decades ago.
      The Muslims and the Hill Country Tamils are distinct nationalities and consider themselves distinct from “Tamils”.
      Whatever the system of devolution, it has to address their specific aspirations and grievances.

      Thus far, the Northern (and slightly Eastern) leadership has talked about the 25% minority nationality but only dealt with the problems of Tamils in the N&E, and excluding the Muslims in practice.
      It also had nothing to offer to the Tamils (besides Hill Country Tamils) who do not live in the N&E.

      It is no more a matter of “both” living happily ever after.
      The problem is more complex than a Sinhalese & Tamils issue as presented from the days of P Ramanathan.
      There are other serious issues at stake.

  • 0
    1

    Dear Mr Wickramaratna

    Thank you very much. The noble process you describe to us ends up as a subtle fraud at the stage of obtaining 2/3 parliamentary majority. Unlike for sefish motives like infamous 18th amendment instituting a new constitution for a country should not be attempted on coerced or bribed votes. Even present president Maitripala Sirisena voted for the 18th. So was SB Disanayake. Unless each and every representative of people consented out of their free will how do we say it is a genuine process? Let us be honest. Even at this very initial stage you are quite confident of obtaining 2/3. In fact I am more confident than you. Where and how do both of us derive that confidence? Isn’t it because we are clearly aware of the formation of existing political setup? This time around SB Dissanayake and the Deputy speaker are not even “representatives” – they are rejects. Unless on this crooked setup how can one “predict” the outcome?. If the outcome can be confidently predicted what is the purpose of a so called “democratic” debate. Isn’t that a grand wastage of time? When you say “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.” arn’t you saying the same thing?

    Basically what I am saying is the methodology adopted by Rajapaksha for his indefinite continuation and the methodology you are going to force a constitution down throats of the majority are one and the same. Let me repeat: Unless each and every representative of people consented out of their own free will how do we say it is a genuine process of adopting a new constitution for a country?

    Soma

    • 2
      0

      Soma,

      With the type of persons we have sent to parliament and the electoral rejects who have been sneaked in, how to you think we can ‘ informed consent’? Do you think we can get informed consent through a referendum that has to be resorted to?

      However, we have to be thankful that the government has made constitution making an open and transparent exercise. If the MPs yet do not attempt to read, hear, understand and exercise their vote objectively, I hope the public will also do so.

      Dr.RN

      • 0
        0

        Correction:—m I hope the public will atleast do so.

        Dr.RN

  • 0
    3

    This not first time we have lost that Golden oppournity since 1948 day of Independence occupation of Sri Lankan by of British Colonial rule in 150 years.

    J.Wickramarathana is Trotskyist turn into current UNP politician who has shifted line of his “left wing” politics into Right wing of that UNP neo-colonial ideology.

    We are not in position agreed that absolutely right in rejected that so-called Devaluation package of compromised over this ‘New constitutional’ reform by the vital interest of Tamil Separatism will served for the US, hegemony power of global strategy Indian Ocean.

    We cannot installed Tamil puppet regime in North -East by pave way to created second partition of Indian after 1947.

    I am not for partition of India, and divide people of Indians as well as Sri Lankans that Great Mahatma Gandhi has sacrifice his life for the Unity People of India.
    We have no way to compromised principle issues of Indian Unity that US and UK want split Indian Sub-continental by and large.

    The very proposal first step by US and UK want split our an Island for Tamil Eealm regime that undermined Sovereignty and Territorial Integrity of Sri lanka.

    We cannot made any concessions proposed by JW that US base political illusions to that proposed by UNP+TNA back ‘New constitutional Assembly’; which we have ruined the whole cause of Sovereignty of Democratic Socialist Republic was enacted by 1972 Constitutional Assembly by leadership of SLFP-LSSP and SLCP-(Moscow Wing)political coalition.

    We cannot sacrificed our nation to that JW narrow personal gain and an interest of hegemony interest of US in Indian Ocean to be Separatism cause initiated by TNA and UNP.

    JW which turned out to Neo-Liberalist political democracy to be proceeding along the Tamil Eealm of US course ,because it is purely power domination of US in Sri Lanka.

    JW has crossed the barricades of sovereignty of Island and landed in US of our enemy camp for “Power devolution” by the interest of Tamil regime in North.

    JW has forget that LTTE and TNA blessing political affairs govern by the Gun Rule Politics , which last long last 30 War, against the People of all Sri Lankans and used all ruthless struggle and used modern terrorist warfare to undermined Territorial Integrity by Tamil political class not that only Tamil LTTE terrorist.

    No matter JW and gang of Trotskyist of right-wing politicians may have condemned this LTTE terrorism from different point of view but all of “Left-wing”, politics are vacillating “New constitutional assembly” and acute Civil war launch by LTTE they have no independent stand.

    The change of International politics of US and Indian that inevitability Trotskyist politics of JW and petty-bourgeoisie gangs has change in their position suited to US in Indian Ocean agenda.

    The current constitutional Assembly proposed by power devolution is that NOT the solution for nation question been challenged by ruling class of UNP neo-colonial agenda.

    We should not trap by UNP +TNA+JVP with illusions that politics of democracy of Tamil separatism promoted and encourage by JW.

  • 0
    2

    Jayantha Wickramaratne appears to be a Time Bomb.
    [Edited out]

    JW & Mangala trying to implement promised made in 2013 in Singapore to get Dispora funds. Still nothing appears to be happening as they are tight fisted.
    Nothing for nothing. This is the urgency.

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