Wanted, new Constitution - DEW

Most of country’s problems arose from 1978 Constitution:

Disna Mudalige

Q: There is a discussion at large over Constitutional change in the country. Do you think Sri Lanka needs a Constitutional change at this hour?

A: Yes. It is a long felt need. We have been under three Constitutions. For 25 years we were under the Soulbury Constitution, for five years under the first Republican Constitution and for last 35 years, under the Second Republican Constitution, which is also known as either JR's Constitution or the 1978 Constitution.`

Within the first 10 years of the enforcement of 1978 Constitution, there had been 16 amendments to it. In my view, except the 13th and 16th amendments, all other amendments were for the purpose of strengthening the Executive Presidency. When looking back at last 35 years, we have undergone so many crises under the 1978 Constitution, which we did not experience either under the Soulbury Constitution or First Republican Constitution.

To mention a few, there had been the ethnic war starting from 1983. Then there had been confrontations between the Executive, Legislature and the Judiciary. There had been five impeachments, four against Chief Justices and one against the President. The sovereignty of the people is divided today between the President and Parliament. The supremacy of Parliament has declined. These solely demonstrate the weaknesses in the 1978 Constitution.

Q: If the government is to undertake the task of Constitutional reforms, do you propose to bring an amendment to the existing Constitution or enact a new Constitution?

A: A complete new Constitution is necessary. Not amendments. In my view, most of the problems that we face today in our country have basically arisen from the 1978 Constitution.

Therefore, it is absolutely necessary that we must go in for a new Constitution, taking into account the experiences under the Soulbury Constitution, first Republican Constitution and 1978 Constitution. In the meantime, between 1947 and today a lot of changes have taken place in our country. The economy and society have underdone numerous changes. So, we will have to bring in the new Constitution to suit the current needs of the people.

Q: What are the specific weaknesses identified in the existing Constitution?

A: The 1978 Constitution is rigid and complicated. It has only benefited the lawyers because you find every other day a Constitutional case is being taken up in either the Appeals Court or the Supreme Court. That is our experience in the last 35 years. We have tried and tested all these three Constitutions and the ethnic problem remains unsolved.

If you revisit what motivated former President J R Jayewardene to bring this 1978 Constitution, you will find it was mainly because he wanted to introduce the neo liberalism model of economy into our country.

That was the purpose for which this Constitutional structure was brought in. The intention was to accelerate the Capitalist development as fast as possible.

Then he expected the party he led, the UNP would eternally be in power through the 1978 Constitution. When he lost the Kelaniya seat in 1956, he shifted to Colombo South, a safer place where he could win, because that electorate was dominated by the elite of capitalist class.

Then he thought of bringing in new electoral reform. Along with the Constitution, he brought in new electoral systems. Those are the proportional representation system and the preferential vote system which completely distorted the whole electoral system.

That electoral reform gave rise to new problems. Only the rich could contest and win seats when the district was made the main electorate instead of a smaller electorate. This marginalized others, such as, trade union leaders, peasant leaders, school teachers, middle class people etc. He ensured the return of rich people to Parliament by this course of action.

That completely distorted the representative character of the Legislature. Therefore, the role of Parliamentarians has now changed too. Parliament is expected to be the Legislature. But most of the Members of Parliament are now doing everything on earth, except engaging themselves in legislation. The Supremacy of Parliament has changed too.

Q: What are the basic principles on which the new Constitution should be drafted?

A: In my view, the Executive Presidency should be abolished in the new Constitution. We must give the entire power back to Parliament. The Sovereignty of people should not be divided among the elected President and Parliament. Only Parliament should clearly represent the sovereignty of the people.

We must go in for a mixed electoral system while retaining the good features of the proportional representation system. A mixed electoral system would allow any person, even a middle class man or a leader of any organization to be elected to Parliament and on the other hand, the religious and ethnic minorities to be represented in Parliament.

The mix system is supposed to be the best so far. It has been recognized all over the world. We must do away with the preferential vote system which is the breeding ground for all kinds of corruption, violence and bad governance and many other problems that we are facing.

Then in the new Constitution, we must ensure the independence of the Judiciary. That is absolutely necessary for the good governance and maintenance of the rule of law. The new Constitution should not allow any confrontation between the Executive, Legislature and Judiciary.

There should be a clear demarcation of the powers of these three organs. The sovereignty of people should really lie with the people and exercised through the Constitution and the three organs of the State.

We must ensure the unity of people while promoting the Sri Lankan nation. There should be no second class citizens in the country. All, including Sinhalese, Tamils, Muslims and others should enjoy equal rights.

The entire public service has been politicized at the moment and is faces a crisis. This is another area the new Constitution would have to look into. At the same time, the new constitution should limit the number of ministers in the Cabinet. The difference between the Head of State and the Head of Government should be maintained.

The Head of State should be the Commander of Chief of all Forces. We should go back to the model of first Republican Constitution or Soulbury Constitution.

If we do not do these changes, we will be confronted with many other problems in the future in all spheres of society.

Q: How do you think the government should proceed on the task of framing a new constitution? Do you think a Parliamentary Select Committee (PSC) would do for this purpose?

A: Either, a PSC should draft the new Constitution or we must have a separate Constitutional Assembly. A Constitutional Assembly is a wider committee formed from the Members of Parliament.

We should make sure that all shades of opinion are represented in this task. All parties in the opposition and in government should get together and try to bring out a new Constitution taking all post-independent factors and experiences into account. Otherwise, there is no future for the country. A lot of rethinking is necessary. In my view, patchwork, such as, the 19th Amendment or the 20th Amendment would not solve the problems.

Q: What do you think should be included in the Constitution to prevent ethnic fissures in the country?

A: One single party cannot solve this problem. It should be a collective effort. All parties should get together and find a solution to the national question.

It has been proved by history since independence that neither the government nor a single party can solve this problem.

Q: How is the progress of the COPE report for the year 2012?

A: There are 235 institutions assigned to the COPE. By now we have completed examination of accounts in respect of 188 institutions.

The remaining 47 will be completed by March 8. After that, I will be tabling the report in Parliament. I have already submitted an interim report.

The full report will be submitted by March end or the beginning of April.

This is the first time that the committee will be completing all the institutions assigned to it.