Only need to lay down powers for centre and provinces
There is agreement in principle on electoral reforms
MP Dr. Jayampathi Wickramaratne, who plays a pivotal role in the Constitution- making process, says he is optimistic about the process this time. In an interview the Dailly Mirror had with Dr. Wickramaratne, who served in the drafting committee of the 2000 Constitution, he spoke about the meaningful and extensive devolution of power. Excerpts of the interview:
How far have you progressed in the Constitution-making process at the Steering Committee?
The Steering Committee has been meeting very regularly. I do not have permission from it to disclose the content of discussion. I can say that the committee has issued a statement. The reports of sub-committees are now in. We have not still gone into the sub-committee reports. The Steering Committee is dealing with certain subjects directly, such as electoral reforms, the nature of State, devolution, the executive and so forth. Thus far, no finality has been reached on any of these. We have actually discussed three issues in main. There is some agreement on electoral reforms - a mixed member proportional system. Details have to be worked out because there are different views. In principle, there is some understanding. On the executive, the President’s position is clear that it has to be abolished. The President has to make a public statement. Then, we should look at how the present executive should be replaced with. The principles of devolution are under discussion by us. Things like the nature of State and the place for religion have not even been touched.
In terms of electoral reforms, how far have you agreed upon in your view?
It is not in my option. There is now a movement towards a mixed member proportional system. The Prime Minister too said this in New Zealand. We are looking at the New Zealand system. Overall, it is a proportional representation system, but into it, inbuilt is the First Past the Post System. Every voter will have his or her own MP for his electorate. The composition of parliament will be very close to the proportional representation system.
Does it mean there is agreement among the two major parties?
I am not saying that. Please don’t put words into my mouth. I am only saying we are moving towards that. But, a number of issues have to be ironed out. Basic agreement is there.
What about the executive presidency?
I want to emphasize that this is my personal position. It is also the stance of the Lanka Sama Samaja Party (LSSP) to which I belong - the party’s majority group. We are for the complete abolition of the executive presidency. In fact, a majority of people are. We are also very happy that the president has made it very clear that he is for the abolition of it. The Sri Lanka Freedom Party (SLFP) too agrees with the president’s current position. The United National Party (UNP), which introduced it, is also for the abolition of it. What we discuss is how and what it should be replaced with - whether we go back to the traditional Westminster model we had before 1978, or should there be a variation.
In a traditional Westminster system, the Prime Minister is the person who commands the support of the majority of MPs in Parliament. That person will be asked to form the government by the Head of State, the Governor under the Soulbury Constitution and the President under the 1972 Constitution. If he or she loses the majority in Parliament, then the government will fall.
"We are strongly for an undivided, indivisible country. Our position is that if a Provincial Council takes steps against the indivisibility of the country, the centre must have the power to intervene. At the same time, we say that power to intervene must not be abused"
There is a school of thought. People are against frequent elections and that the incoming Prime Minister must be given a fair trial of two years. The government cannot be brought down within these two years. I have no major objection to such an agreement. We need such a provision. We need to discuss it further. In other countries like Germany and Spain, when a no-confidence motion is moved against the government, it must be mentioned in the same motion as to who the next Prime Minister is. We can think about such things. I agree that people don’t like frequent elections.
In the present backdrop, major parties must be encouraged to work with each other, or otherwise definitely with smaller parties. Coalitions are good, as you can get wide consensus, especially when the country is going through a crisis or else has emerged from one.
There is a perception that the abolition of executive presidency will pave way for Provincial Councils with devolved power to move towards being independent units. How do you respond?
Whatever power that remains with the centre regarding Provincial Councils will remain with it despite the abolition of the executive presidency. Whatever power the president would have in respect of Provincial Councils would reside with the Head of State. The only difference is that he will act on the advice of the Prime Minister. That is a fallacy as a result. For example, the central powers for acting in case of an emergency, dissolution of a Provincial Council moving towards separatism will remain as they are. I must tell you that the present Constitution does not empower the centre to dissolve a Provincial Council, unless on the advice of the Chief Minister concerned. In the case of North-East Provincial Council Chief Minister Varatharajah Perumal, special legislations had to be brought. I am for the Constitution having such special provisions to act in an emergency situation. Also, there must be safeguards against the misuse of such powers by the centre. Some people tend to think that the centre does not misuse the powers vested upon it.
The successive governments in the centre have been misusing power. We must have safeguards.
What about the character of the Constitution?
My position is that we should not cling on to these labels. First, it is because people have different notions about this nomenclature. For example, if you go outside my house and ask ten people if they wanted a unitary state, they would say ‘yes.’ If you ask them to define it, they will say an undivided, indivisible country. In traditional Constitutional law terms, a unitary state is one in which the centre can take back powers that have been devolved. That is how it is changing. Take the United Kingdom for example. It is the mother of all unitary states. There, Scotland, Ireland and Wales have been given different levels of devolved power. The Good Friday Agreement with the Republic of Ireland provides that if a majority of people in Northern Ireland someday decide to join the Republic of Ireland, it will be respected. There are so many indivisible unitary states in the United Kingdom.
If there is a referendum in Scotland and it decides to go away, England is not going to stop it. The Westminster Parliament is supreme. There is an MoU which binds the government of the UK and the devolved units. The Westminster Parliament will not exercise its sovereign power of making legislations on devolved power, unless with the consent of Northern Ireland, Scotland and so forth.
In the UK also, things are changing.
"We are for the complete abolition of the executive presidency. In fact, a majority of people are. We are also very happy that the president has made it very clear that he is for the abolition of it"
What is the actual position of the LSSP you represent?
We believe that we should not use labels. We are strongly for an undivided, indivisible country. Our position is that if a Provincial Council takes steps against the indivisibility of the country, the centre must have the power to intervene. At the same time, we say that power to intervene must not be abused. There must be safeguards against the abuse of power. We are not for using labels such as Unitary or Federal. These concepts are also changing all over the world. Rather than having labels, what is important is to lay down the powers of the provinces and the central government. In the Steering Committee, the nature of the State has not been discussed even.
What is your position on devolution of power?
We, the left parties, are for extensive and meaningful devolution of power.
How do you compare it with the power devolved under the 13th Amendment?
What is the experience of power devolution over the last 28 years? We have seen that successive governments have been using virtually every full stop and comma in the 13th Amendment to take back powers unconstitutionally. A good example is agrarian services. If agrarian services cannot be devolved, what can be devolved then? It is an area so close to tenant cultivators. When the Provincial Councils were set up, during the first three years, there were Departments of Agrarian Services there. Then, misinterpreting a Supreme Court judgment, the government of the day in 1991 took over all the departments. In 2003, in a case in which I also appeared, the Supreme Court clarified those agrarian services should continue to be a power of the Provincial Councils. Up to now, the subject has not been handed back to Provincial Councils. That is the experience.
Of course, the 13th Amendment has faults. One is the power to take over. In the guise of making national polices, it leaves room for taking over power. Under the Divi Neguma Act, a large number of powers have been taken over.
"What is the experience of power devolution over the last 28 years? We have seen that successive governments have been using virtually every full stop and comma in the 13th Amendment to take back powers unconstitutionally"
I am not against national standards being made by the centre such as the national health policy, education and so forth. Nor am I against national framework legislations being formulated by the centre. That must be done with the participation of provinces.
We can see how provincial schools have functioned. If you take the results of the last Grade 5 Scholarship Examination, who topped? It is mostly students from provincial schools. There were a few national schools with better performance. This should be an eye-opener to show that provinces can do better with devolved power.
What is your opinion on the Northern Provincial Council?
The North Provincial Council has not done enough work. Their statute making is very slow. They could have done much better. People in the North also expected much more. They are entitled to take any position regarding national issues. They should produce something without trotting out excuses. People do agree that provincial councils could have done better even with limited power.
I agree that the centre is not supportive of the Provincial Councils as such in general.
Many Constitutional proposals were evolved at different points of time. What is the best set of proposals?
We cannot say any particular model because things keep changing. There has been the 2000 draft. There has been the report by the APRC. Some can be applicable today, and some not. It is difficult to say which is better than the other. We have to get the best out of all these proposals.
What is your comment on the 2000 draft which you were involved in?
I think it is a very good draft. I am proud that I was in the drafting committee. It came towards the tail end of that government. Can you make a Constitution during the last few months of a parliamentary term?
If you delay the process, other political factors come into play. At the same time, we should not go too fast.
How optimistic are you of the current process?
I am very optimistic. In 1972, the United Front government imposed a Constitution. In 1978, the UNP imposed a constitution. Neither the UNP nor SLFP has a simple majority. Together, they have a comfortable majority. The budget was passed last time with the support of the TNA. They must be flexible.