Making of a new constitution
Despite the new Government’s stated plans for a new constitution, it remains to be seen whether and how such a constitution will come to pass.
President Anura Kumara Dissanayake, responding to inquiries from the Maha Sangha recently, said that he hoped to introduce a new constitution, emphasising that it would only be done following discussions and a referendum.
He further pointed out that previous governments had implemented constitutional amendments without public consensus, pledging instead to introduce an amendment that would meet the expectations of the people.
‘A real possibility’
Given this backdrop, addressing the likelihood of a new constitution, constitutional expert Dr. Jayampathy Wickramaratne, PC told The Sunday Morning that there was a real possibility of constitutional reform in the offing.
“The National People’s Power (NPP) is now in power and it is likely to get at least a working majority in Parliament. The Samagi Jana Balawegaya (SJB), which is likely to be the main party in the opposition, has also committed itself to several important constitutional changes like the abolition of the executive presidency, stronger devolution, institutions at the village level to empower the people – which is a demand of the ‘Aragalaya,’ and the widening of the fundamental rights chapter.
“Whether it will be a new constitution or a wide-ranging amendment, we don’t know – that’s a matter for the Government. But because the two main parties agree on many of these issues, I think there is a real possibility of having meaningful constitutional reform.”
However, he noted that any such change “must be effected preferably within the first year of Parliament, not later,” since any later implementation could lead to complications.
“The danger is that if the amendment of the new constitution comes later in the term of Parliament, other issues will come up. It won’t be a referendum on the constitutional amendment or the new constitution but a referendum on the Government’s performance,” he explained.
Accordingly, he expressed his view that should the Government opt for a referendum, it must be held as early as possible, “so that the chances of getting it approved by the people are higher”.
Legally, in order to have a new constitution, consensus among the main political parties is required. “A two-third majority in Parliament is essential, meaning a broad consensus across parties is necessary,” Dr. Wickramaratne noted.
“Enough and more drafts are available on these issues because constitutional reform has been attempted successfully and unsuccessfully for the last so many years. It is a question of political parties agreeing to the changes.”
He further stressed that a new constitution was a necessity, saying: “The present Constitution has failed and it is based on the executive presidency. If we abolish the executive presidency, ideally, we should have a new constitution, since for abolition, you need to go before people at a referendum in any case. Therefore, the best option is to have a new constitution.”
However, if this is not possible for any reason, he advocated having “the broadest possible constitutional reform” instead.
NPP/Govt. pledges
On the campaign trail, Dissanayake said the NPP planned to “rapidly conclude the process that began in 2015-2019” and draft a new constitution based on equality and democracy and where everyone could participate in governance as one country. The draft constitution will seek to “devolve power politically and administratively to every Local Government body, district, and province, and guarantee the political participation of every ethnicity”.
Speaking at the first-ever Cabinet press briefing of the new Government on 1 October, Minister Vijitha Herath said that a draft constitution would be presented to the public for a referendum once the new government has been formed.
In a Centre for Policy Alternatives ‘Voice of Citizens’ publication contributing to the dialogue on drafting a new constitution, published in the aftermath of the ‘Aragalaya’ of 2022, now Prime Minister Dr. Harini Amarasuriya had said: “We think a new constitution is absolutely essential. We have come to the limits of this current Constitution.
“We have severe problems with the existing Constitution. We critique the Constitution, especially the executive presidential system; we think this can no longer be tinkered with and a new constitution is required.”
Tamil political perspective
Meanwhile, former MP and Thamil Makkal Thesiya Kuttani (TMTK) Leader C.V. Wigneswaran told The Sunday Morning that the new Government had yet to call upon them for any input on matters concerning a new constitution.
He however stressed that Tamil-speaking people in Sri Lanka would welcome any new constitution under certain conditions.
“If they accept the fact that the Tamil-speaking people are the majority in the north and east, with a history of their own, and therefore are entitled to be considered as a special unit of the population of this country, we will certainly welcome the constitution that will be put forward. We will give all possible support with regard to that.”
He explained: “We have a right to be recognised as an individual nation and we, as a nation, joining the Sinhala-speaking nation, can formulate whatever possible constitution that would be acceptable. Tamil-speaking people don’t consider ourselves minorities because we are the majority in the north and east.”
Stressing that the Tamil-speaking people of the north and east had a history of over 3,000 years as original inhabitants of this country, he said: “What I would ask the Government is to accept the fact that under Article 1 of the International Covenant on Civil and Political Rights (ICCPR), a group of people having certain qualifications are entitled to nationhood. We have all those qualifications; we have a language of our own, area of our own, and culture of our own.”
13th Amendment and devolution
With issues surrounding the devolution of power being some of the most contentious in Sri Lankan constitutional reform, the approach towards the 13th Amendment becomes significant.
According to Dr. Wickramaratne, there are a number of issues with the 13th Amendment given its flawed nature. “Through experience, we have seen that it allows the centre to take back with the left hand what has been given with the right hand. Therefore, clear-cut provisions are needed in regard to devolution so that devolution is meaningful.”
Commenting on the constitutional model that Tamil parties would support, Wigneswaran said: “Our leaders have always been asking for a federal constitution. In fact, my party asked for a confederal constitution so that there won’t be many problems between the two segments of the country.
“We are all for being able to have the right of self-determination for ourselves within one country. In that sense, it (the new constitution) should have the characteristics of a federal constitution. But if the Government is concerned regarding federalism being a much-maligned concept among the Sinhalese people, we could work out something by which the right of self-determination is ensured with regard to the north and east.”
Stressing that the 13th Amendment was insufficient since the provinces came under the control of the central government under a unitary constitution, he said: “The 13th Amendment is absolutely insufficient, since all decisions taken with regard to the money that has to be brought in, etc., is made by the centre and the governor, who is the central government’s nominee.”
Moreover, he explained that the original salient features of the 13th Amendment were no longer extant in the current Constitution.
“Under the 13th Amendment, the government agent, district secretary, and Grama Sevaka were brought under the control of the provincial council, but by Act No.58 of 1992, Ranasinghe Premadasa took this away and handed it over to the central government. Therefore, what was originally in the 13th Amendment is no more, since they have taken away some of the more salient features of the amendment.”
In terms of the new constitution, “it all depends on the nature of the constitution that is being prepared,” he said, adding that former President Chandrika Bandaranaike Kumaratunga’s draft constitution of 2000 was fairly acceptable, “though not up to our expectations”.
According to him, the council of regions mentioned in the 2000 draft could be the basis for a new constitution and much of this draft can be taken to prepare a new constitution.
Meanwhile, attempts to reach Prime Minister Dr. Harini Amarasuriya and Minister Herath for comment proved futile.⍐
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