BY NIRANJALA ARIYAWANSHA
Member of Parliament and Constitutional Lawyer Dr. Jayampathi Wickremaratne says that some people think this country must belong to Sinhalese or rather the Sinhala-Buddhists only. Separatism brews in such countries. “In all such countries, mechanisms were developed to share powers with ethnic communities. That is the only way to solve this problem”.
Former Chief Justice (CJ) Sarath Nanda Silva accuses that the interim report produced by the Government on Constitutional reforms is unconstitutional. As he explains, this report must be drafted by a Parliament Select Committee. It must be approved by the cabinet. Then it must be gazetted and people can go to the Supreme Court (SC) against it if they have objections. The former justice argues that the Report must be set forth for the approval of the Parliament.
A: I am sorry to say that he has not read the proposal unanimously passed by the Parliament on 9 March 2016. This process of Constitutional reforms was guaranteed by that proposal. We created a broader body to debate the reforms by converting the entire Parliament into a Constitutional Assembly. Thereby, the task of the Constitutional Assembly is to draft a new Constitution which could then obtain a two-thirds majority. We appointed a 21-member steering committee for that. Six subcommittees were appointed to discuss the issues separately. With the unanimous agreement, subcommittees were made with 11 members each from various political parties. Accordingly, the subcommittees produced six reports.
The final report must be approved by the cabinet. Only then will it be gazetted and then anyone could go to Supreme Court then. The draft needs two third majority as per the Constitution and it must be followed by a referendum. We have not changed the process by which the constitutional reforms must be done.
But no one knows what happens in the process of the Select Committee. The present process is transparent. We produced six reports of the subcommittees in November 2016. It was subject of the discussion among people. Now the interim report is also being discussed by people. People can also discuss the final report drafted through these discussions. Cabinet will then approve this and the draft will be published by gazette then. Anyone can challenge it in SC then too. It can be further debated in Parliament. How then can this process be unconstitutional?
When all the 225 MPs are taken to draft the Constitution, none of the MPs may get sufficient opportunity to debate, as the former CJ argues.
A: Sixty-six MPs were in the subcommittees. By the time the interim committee report was out, opinions of all the parties were also out. In the Constitutional Assembly, what normally happens is the leader of the party presents the party’s view. MPs can express alternate views. We have planned a debate for three days and more can be done, if necessary. Some extremists in the North and South make false excuses in order to see this fail to materialize.
The former CJ said that communal problems would be created due to the concepts of unitary State and devolution of power. Do you agree to this?
A: I categorically reject that allegation. The reason for the ethnic problem of this country is not taking the various ethnic communities to the governance. This is basically a problem related to State powers. All communities must be given opportunity to be part of the governance. Ethnic problem was created by not delivering that right.
A professional like me asked in a seminar held in 2005 “what problems do the Tamils have? We go in the same bus and we share the same pot of tea.” I responded to it saying, that is the problem. You are ready to share the pot of tea but not ready to share State powers. There are such popular simplistic views. Some think this country must belong to Sinhalese or rather the Sinhala-Buddhists only. Separatism brews in such countries. In all such countries, mechanisms were developed to share powers with ethnic communities. That is the only way to solve this problem.
The former CJ argues that President Maithripala Sirisena has promised only to reform the 19th amendment to the Constitution?
A: Presidential candidate Maithripala Sirisena said in his policy statement, “I will have discussion with other parties and pass this amendment without fails within the 100 days. I guarantee that in the proposed Constitutional Amendment, which is the 19th Amendment will not touch any Constitutional articles that could be changed only with approval at a referendum.”
Why did the SLFP and UNP convert the entire Parliament to a constitutional assembly if they had not wanted to do any other reform? Does that mean we are not looking at the ethnic problem? Don’t we want to re-establish the independence of the judiciary? Don’t we want to have a new human rights chapter? None of us might join this movement if everything was to be ended with the 19th Amendment. No one said so and the President said that no more Presidential elections would be held.
These arguments are set forth by persons who were not with us by the time of 8 January 2015 victory. Although they were in SLFP, they were not with the common candidate and they worked to defeat the present President. But people won and no one has ethical right to go against people. They must understand the people’s ambitions and support their leader to deliver the promises.
What is your view on Minister Champika Ranawaka‘s statement that the foremost place given in the present Constitution is merely a decoration?
A: He says Sri Lanka is a secular State. My view is that I don’t mind both views on religion. I am a leftist who has always advocated State and religion separated. But it is now in the Constitution. We don’t think changing it is the key issue of the country.
I will explain the history of this. The first proposal passed by the Constitutional council in 1972 was this: In the republic of Sri Lanka Buddhism the religion the majority of Sri Lanka shall be given rightful place. But it was changed as foremost place in the final draft. No one knows how it happened.
We asked this from Colvin R. de Silva who led the constitution making process. He said that a small group of SLFP MPs mentored by ultra-rightist politician Felix Dias Bandaranaike had come to demand Buddhism given the identity of State religion. Felix who was a Christian who saw the leftists as “Satan” only wanted to damage Colvin by that. Colvin said this to T.B. Ilangaratna and T.B. Subasinghe. T.B. Ilangaratna had told those MPs that it could not be done. Final compromise was giving Buddhism the foremost place. Colvin said he had preferred secular State. However, he also said that this phrase would not harm other religions.
Supreme Court interpreted this on two occasions. Former CJ Sarath Nanda Silva said that it had to be firmly borne in mind that Sri Lanka was a Secular State. In 2004, when a private member Bill was brought to make Buddhism State Religion in 2004, Supreme Court judges Raja Fernando, Weerasuriya and Raj Thilakawardana clearly stated that Sri Lanka was a secular State.
Isn‘t giving priority to one religion undermining the other religions?
A: As Colvin said I would not believe that this would push the other religions back. But the followers of the other religions desire different wording. The majority of them are not against giving foremost place to Buddhism. They are also not against the view of State protecting Buddhism as a duty. They want to be guaranteed that they are not arbitrarily discriminated. That demand is not for equal status. Giving priority to Buddhism and arbitrarily discriminating the other religions are two entirely different factors.
Are the articles of a Constitution gospel truth? Can‘t they be amended to benefit the people?
A: None of these are like stone inscriptions which cannot be deleted. The fourth amendment which was brought to extend the term of the parliament from six years to 12 years and the 18th Amendment brought to abolish the 17th amendment were entirely politically motivated. But Constitution must be amended for the benefit of the country and not for personal gains.
Joint Opposition argues that the interim report is misleading people?
A: This is not a Constitution or a Draft Bill. This is only a report that can be discussed. Some articles have been drafted while alternatives have been set forth in terms of some facts. A constitution was never built via so deep dialogue before this.
Minister Champika Ranawaka argues that the new Constitution or a constitutional reform must be passed by people as a whole (Maha Sammatha)?
A: Two-thirds majority of the Parliament and the majority in referendum are sufficient and I don’t know if that is the Maha Sammatha he means. Anyway, the final Constitution is a compromise. An ideal Constitution can never be built. In 1948, English colonial rulers brought the Constitution they wanted. In 1972, United Front also did what they wanted.UNP brought in a Constitution they wanted in 1978 and we are still unable to get rid of it. Now the UNP itself wants to amend it.
Is the new move a totally new Constitution or only amendments?
A: Mega reforms to the present Constitution or a new Constitution must be passed by Parliament with two-thirds majority and it must be followed by a referendum. In such context, isn’t a totally new Constitution better than mega reforms? Why should we cling to JR’s constitution? We demand the SLFP to give up JR’s Constitution and to build a Maithri’s Constitution.
Isn‘t it better to form a people‘s Constitution?
A: I did not mean what you meant. The name of the leader is mentioned. 1972 Constitution was not made as per Colvin R. de Silva wanted but it was named after Colvin. Same happened regarding the 1978 constitution. I said so because the present constitutional building process is led by President Maithripala Sirisena.
Interim Report has proposed broad power devolution?
A: Yes. The best proposals for power devolution came from the Chief Ministers of the South. Seven of the Chief Ministers are of the SLFP. That party opposed the Provincial Councils in 1987. But they have now admitted that the Provincial Councils as unchangeable aspects due to political reality. Actually, this report is 13+ and I do not reject it.
Why does the Joint Opposition (JO) express different views out of the Constitutional Assembly?
A: At least two MPs of JO were in the subcommittees. The report of the fiscal subcommittee led by MP Bandula Gunawardena is the only report endorsed by all 11 members of the subcommittee. But later they started to say that JO’s ideas had not been included into the reports. The Steering Committee listened to them and sent letters separately to the 66 members of the subcommittees asking them to submit additional proposals in writing, if they have any. But the JO sent none.
Do you believe all communities will be given justice if the facts in the report included into the final Constitution?
A: I firmly believe that this will lead to a constitutional democracy, the Provincial Councils will be strengthened and the ethnic problem solved. But the extremists both in the North and South are against it. Extremists in the North say this Constitution has been marred by Sinhala Buddhist needs while the extremists in South argue that the Constitution has betrayed the Sinhala Buddhists. This explains that we have done none. We have set forth a fair and moderate report.