Experts debunk draft constitution fear - mongering | Sunday Observer

Experts debunk draft constitution fear - mongering

20 January, 2019

Is the new Constitution as bad as it is claimed to be - With many politicians alleging that it calls for Federalism in Sri Lanka and stating that it defeats the military victory earned by the valiant soldiers of the country. The claim is that the zero draft of the proposed new Constitution and the suggestions put forward by the experts disguise Federalism, and that the intention behind the new Constitution is to separate the country through political means.

United National Front (UNF) Parliamentarian Dr. Jayampathi Wickremaratne rebutting these claims, sat down with the Sunday Observer to explain the aims of the new Constitution.

After Parliament unanimously set up the constitutional assembly in 2016, it had to be decided whether there should be a new Constitution or a mega Constitutional amendment.

“When you address all shortcomings of the existing Constitution it seemed necessary to have a new Constitution rather than going in for an overhaul. Only amendments can be accommodated but the foundation will be archaic. Rather than build a new Constitution on an old and crumbling edifice it is better to have a new Constitution,” Dr Jayampathi said.

Expressing his personal views and on behalf of his party (United Left Front (ULF) which is of the opinion that Sri Lanka needed a democratic Constitution, he went on to give his reasons for a new Constitution.

The Executive Presidency set up under the 78 Constitution was one of the strongest Executive Presidencies in the world with very few safeguards - And the 18th amendment, made Sri Lanka have one of the strongest if not the strongest executive presidencies in the world coupled with the ethnic issue for which, (despite of the 13th amendment), we still have to find a political solution.

Electoral reforms were another burning issue that the government has so far failed to solve.

“People are supportive of Proportional Representative Systems in general as a matter of principle we (ULF) also support this principle but the preferential system has not been conducive to democracy. But at the same time we find our experiences with the Local Government elections is not very good. We realised that the smaller parties which have support among the minority ethnic groups are complaining about it. So, we need to find a way out,” he said.

The Existing Fundamental rights chapter, which is archaic and is based only on civil and political rights whereas the world is now moving towards the Constitutionalisation of social economic and cultural rights, women’s rights, children’s rights, environmental rights, rights of disabled and rights of the aging population.

“The independence of the judiciary is another aspect that needs to be strengthened,” he said.

Another very important factor that the new Constitution will introduce is the post-enactment judicial review.

“In our country, we can only challenge a law before its passed in parliament and not after. Even though law is rendered faulty judicial review is not possible and we will address this issue,” he said.

Separation bogey

Dr Wickremaratne emphasizes that there is no division of the sovereignty.

“The sovereignty which is known in Sinhala ‘paramadipathya’ meaning who has ultimate power to change the Constitution. In the US even a comma of the US constitution cannot be changed without two thirds of the State also consenting to it. So there’s a clear division of power. The people of the US voting together as the people of the US cannot change the constitution you need the consent of the 2/3rds of the States. Hence sovereignty is divided,” he said.

In a Federal state like in the US or a quasi federal state like India there will be a division of powers also a division of sovereignty. In the sense that the people of the country as a whole also are sovereign as a people, the people of the units also have a share of sovereignty.

The draft which has been proposed by the expert’s panel based on the subcommittee reports and the interim reports starts by saying that the sovereignty is indivisible. It states that “sovereignty will vest with the people that is the people as a whole, and shall be inalienable and indivisible”. Hence the power to change the Constitution or introduce a new one remains with the people of Sri Lanka and not with the people of each of the provinces.

Therefore the attempt through the new Constitution is to strengthen devolution. An essential feature of a federal state or a quasi federal state has been completely ruled out. So it is unitary in the sense that ultimate power remains in the Parliament of Sri Lanka, the central legislature and the people of Sri Lanka as a whole.

Dr Nihal Jayawickrema speaking to the Sunday Observer says that a constitution should avoid unnecessary, meaningless, emotion-charged, divisive and destructive provisions or terminology.

“For example, is it necessary to proclaim that Sri Lanka is a “Unitary State”? Was it the power of that phrase in the 1978 Constitution that brought an end to the conflict with the LTTE? Will the inclusion of that phrase in the Draft Constitution prevent the emergence of another separatist movement in some other part of the Island? Similarly, if Buddhism had been able to survive in the hearts and minds of the people through 450 years of Western colonial rule, is a constitutional injunction now necessary to keep it alive in the free, sovereign and independent Republic of Sri Lanka? Is it really necessary to treat the Hindus, Muslims and Christians as “the other” in this secular state? Is that what the Buddha preached?,” he raises a moot point. The new constitution gives the power to the central parliament to dissolve any Province that acts towards secession.

“After the 13th amendment, in the North Eastern provincial Council there was a so called unilateral declaration of Independence by Wardaraja Perumal the Chief Minister. When that happened President Premadasa looked into the Constitution to dissolve the provincial council, making use of that declaration. He couldn’t find any. The present Constitution does not have a provision enabling the dissolution of a provincial council if that provincial council takes steps towards secession. So they had to pass a special law to do that and then only the North Eastern provincial council was dissolved. But I know, some of these critiques who are very knowledgeable on the other side, know this but turned a blind eye,” he said.

During discussions and committee stage meetings the best proposals to strengthen the provincial councils came from the chief ministers of the seven southern provinces, Dr Jayampathi claims. All of whom belong to Tthe Sri Lanka Freedom Party (SLFP). So the interim report and the draft are based on those proposals.

How much devolution is too much devolution ?

The Thirteenth Amendment to the Constitution allows room for the central government to take back with the left hand what has been given with the right hand. Whatever is given, they must be allowed to use those powers.

“In short what we are saying is to enforce the Constitution and plug those loopholes. Let the central government have power to make policy on devolved subjects, let parliament continue to have the same power to make or amend laws on devolved subjects, but in the guise of making that national policy or law, let the Central government not take back, unconstitutionally, what has been given,” he said.

The Provincial Public Service is now completely under the governor. The governor can overrule decisions of the provincial Public Service commission, a power even the president doesn’t have in respect of the Central provincial public service. However, it has been suggested by Governors who attended the committee that to remove such power from the Governor and to let the independent public service commissioners in the province be appointed by the Constitutional council at the centre and only seek the governor’s opinion when making the appointments.

Police powers

Will police powers be given to each provinces is another issue that has taken center stage in this saga.

Under the existing constitution police powers are vested with each province, however it has not been given to the provinces but kept with the Central government.

The subcommittee on law and order went into detail and it states that the Sri Lanka police force will be one police force. However, there will be provincial units and national. There will be provincial police commissions (it will be national police commission which will formulate guidelines rules). The provincial police commission will be appointed on the nominations of the Constitutional Council (at the center). DIGs in charge will be under the IGP of Sri Lanka. Filing of indictment and legal advice will be given through the Attorney General’s Department.

“When you consider all the above, what we have proposed is only a decentralization of the police. If you compare the 13th amendment with what has been proposed I would say, in relation to Law and Order, it goes back on the 13th amendment. What has been proposed has more than sufficient safe guards,” he said.

Concurrent and reserve lists to continue

The constitution carries the concurrent list which lays out subject matters indicating where both the provinces and national government have powers, while the reserve list states what subject matters will remain with the Central government alone.

“During discussions almost all the Chief Ministers wanted the concurrent list done away with. But the steering committee said that it’s necessary to have a concurrent list because in certain subjects it will be useful to have a concurrent list - for example environment. So we decided to keep it but it will need to be reviewed,” he said.

When asked if the constitution of a country should address a religion or provide for a supremacy of a religion he replied that it should be separated.

“I come from the Left and we are for a total separation of State and Religion and our position is that State should not have anything to do with Religion.

But, having said that there is this article on Buddhism that flows in from the previous constitution so if you go to tamper with that there will be chaos and there won’t be a new Constitution.

However, personally I don’t believe article 9 of the constitution which deals with Buddhism has had any negative affect or have had any adverse results,” he said.

Introduction of the Tamil version of the national anthem to the constitution is merely putting it on record. For years it has been the practice of Muslim and Tamil schools in the country to use the Tamil version of the national anthem, he says through personal experience of growing up in the Central province.

“Canada’s national anthem is sung in English and French. The South African national anthem there are verses from different languages. And why should we ask the Tamil speaking Muslims and the Tamils to sing a national anthem that they don’t understand? Isn’t it better that they sing a national anthem that they understand and give them a sense of belonging? It has worked the last few years as it was sung on the Independence Day,” he claimed.

New FR chapter

Social and Economic rights are introduced in this draft and is commendable. Such as the right to access sufficient food and clean water, housing, shelter, education and health etc.

“Right wing parties are totally against it. They think that the Judges will have a say in the budget allocations, this is far from the truth,” Dr Jayampathi said.

South Africa gave the lead in constitutionalising social and economic rights and there are four restricts. It is not the right to food and water that has been given but the access to food and water. Not the right to health services but the right to access health services. Therefore, you can’t ask for free food and water. When you have right of access, if a certain village needs clean water they can complain to the Supreme Court. A citizen cannot claim that they want x amount of water supplied to him by the government into his kitchen as there is only the right of access. Similarly the government also can’t say there’s a river two miles away and ask the people to get it themselves, as it has to be reasonable access.

Therefore, the four constrains on this is the right is to access, the state is only required to take reasonable action, it is the progressive realization of rights and within the available resources.

Dr Nihal Jayawickrema an astute legal scholar speaking to the Sunday Observer on the draft constitution stated that With its 400+ sections, the Draft Constitution of 2019, in its present form, appears to be designed to make governance as difficult as possible. Almost half of the 400+ sections contain detailed provisions that should properly be in ordinary legislation or in the standing orders of Parliament.

“For example, matters of parliamentary procedure, such as the election of the Speaker and his deputies; the salaries payable to them; voting procedures in the chamber, etc., are not matters for a national Constitution. Nor are detailed provisions relating to elections which should be in separate legislation,” he said.

However speaking of areas that are introduced as a step towards an advanced Constitution with a contemporary feel to it, Dr. Jayawickrema said that in his opinion, prohibiting the Death Penalty introduced into the Draft Constitution as a fundamental right, applicability of the fundamental rights recognized in the Constitution to all existing laws, and the provision for the appointment of a Commission to identify and report to Parliament those existing laws which are inconsistent with the Constitution, are commendable.

The requirement that, in interpreting the fundamental rights, the judiciary shall have regard to international treaties and other sources of international law, as well as foreign law, introduction of a Constitutional Court, thereby establishing a specialized tribunal while enabling the regular judiciary, including the Supreme Court to focus on the enormous backlog of civil and criminal litigation, The re-introduction of the judicial review of legislation (in addition to the pre-enactment judicial review of Bills) and restructuring of the Constitutional Council by providing for a majority of non-parliamentarians, Dr Jayawickrema says, are steps in the right direction.

Speaking of several factors that seems to have missed the architects of the new Constitution Dr Jayawickrema says it is unfortunate that the Constitution does not recognize English as an official language.

“It is the English language that provides access to global knowledge, and entry into employment, not only in the Private sector in Sri Lanka, but in academic institutions and international organizations throughout the world. It is time our political decision-makers abandoned parochialism,” he said.

Namal on the ‘Draft Constitution’

Q. What is your take on the Draft Constitution that the expert panel has put together?

There is no such Draft because the government says there is no Draft but only talking material. But in the English version there is a water mark that says ‘draft constitution’. but the Sinhala and Tamil version has not said that, and at the same time the UNP has not given their stance on it, as to what they are looking for. they say everything in the Draft is what they believe in, but then they come to the Media and say that they oppose devolution.

Q. What clauses in the Draft specifically talks of dividing the country?

For me personally, I don’t have any faith in this Draft - none of the proposals we gave from our committees are there. but at the same time, I don’t think we should even talk about this because the UNP is not serious about it.That is because they have not given their opinion yet as to what their proposals are, as a Party. Subcommittee reports include all parties but not the UNP - they can’t get away like that. So they are trying to pass the ball onto the sub committees so that they can go to the South and say that the UNP never got involved in the devolution of the Consitution, but go to the North and say otherwise.

Q. What are these proposals that were given by your party?

None of the committees, except only Bandula Gunewardena (Financial committee) was there. He was the chairman of that committee. Myself, and Shehan Semasinghe gave our proposals for Law and Order, but none of those are there, and many other ideas given on the amendments are not even in the so called Draft.

Q. Why do you emphasize on this “UNP’s stance” when this whole procedure is a parliamentary one through the Constitutional Assembly?

The Constitutional Assembly has considered proposals given by all parties except the UNP. First they have to decide if they should go for devolution or a new constitution and the promise they made is the abolition of the Executive presidency, but there was no subcommittee on that topic. They have not been clear as to who the Head of State is, so that should have been the first sub committee - whether it is a parliamentary system or an Executive presidency. They keep skipping the fundamentals of the Constitution but keep talking about the rest.

On top of everything the JVP has not proposed a 20th amendment so it means that they don’t have faith in the Constitutional Assembly, that’s the understanding that I get. Because had they believed that the Constitutional Assembly would do its job, they would not bring an amendment.

Q. Did you vote for the resolution establishing the Constitutional Assembly, back in 2016?

-yes, we all voted. We agree that there needs to be constitutional amendments.

Q. Do you think amendments to the Constituton are sufficient or do you believe we need a fresh constitution?

Whatever the need is my only concern is rushing through it as we did with the 19th amendment. Today as a result of a rush and bringing constitutional amendments to satisfy individuals and to bar certain individuals from politics, the country came to a standstill. So the need for a Constitution or a Constitutional amendment can be dealt at a later stage but initially, the main parties have to decide what their policies are -you can’t say you’ve given this power to a committee to decide.

Q. What was your expectation of the Constitutional Assembly and do you think the purpose of initiating the process and establishing the CA was not met?

We expected the same thing. We knew they were just playing their cards and were not genuine about any reforms. and we realised that they are actually not trying to do any good to the country but merely to survive in parliament and satisfy certain politicians and their parties. And the constitutional council, or the new constitution, will not give three meals to the people - it won’t put food on people’s tables. They neglected the entire Economy and economic development but try to portray this as a priority and even that they’ve not managed to do.