Jayampathy Wickramaratne, the leader of a three-member team that drafted the Constitution 19th Amendment Bill, was in a relaxed mood when Frontline met him for an interview. The 67-year-old constitutional expert said neither he nor the government was satisfied with the way the Bill got passed. Yet, he said, the passage of the Bill had created a situation wherein the President and the Cabinet would have to work together.
A Leftist, he was expelled from the Lanka Sama Samaja Party a few months ago for supporting Maithripala Sirisena in the presidential election. Excerpts from the interview:
Which aspects of the amendment would you describe as lasting?
Well, the President’s powers have been curtailed. The President cannot dissolve Parliament without the consent of a two-thirds majority. He cannot dismiss the Prime Minister at will. The President appoints Ministers on the advice of the Prime Minister. His immunity is restricted. His official acts can be questioned by way of fundamental rights.
We will also have a Constitutional Council in place, a mechanism which has the potential to reach a national consensus on appointments to important positions such as Attorney General, judges of the Supreme Court and the Court of Appeal, Secretary-General of Parliament, Inspector General of Police and Auditor General. It will also recommend the names for appointment to important commissions, which are expected to be independent. Not only the powers of the President but also those of the Prime Minister and the Cabinet have got restricted. They cannot make appointments at will.
In what way is the amendment superior to the previous constitutional scheme of things?
In the earlier scheme, it was just the rule of one person…. We are not going back to a completely 100 per cent parliamentary form of government; something close to it. Somebody asked me what percentage of powers of the executive presidency had been curtailed. I said 60 to 65 per cent. I would call it ‘B+’. The Supreme Court judgment has reiterated the importance of the Cabinet form of government. That is a positive development. The President and the Cabinet will be answerable to Parliament and Parliament gets strengthened.
Will the implementation of the amendment not lead to the emergence of two power centres? There will be a President who will be elected by the people directly, and a Cabinet or a Prime Minister being the symbol of the Cabinet. What will happen if the President belongs to one party and the Prime Minister comes from another?
You are right to some extent. Such a situation is not impossible. Let us go back to the Chandrika-Ranil period [2001-04]. This was when Chandrika [Bandaranaike Kumaratunga] was the President and Ranil [Wickremesinghe] was the Prime Minister. With all the powers, Chandrika could not interfere for a good three years. She did not even go to the Cabinet. She implemented the decisions of the Cabinet. She appointed Ministers nominated by the Prime Minister. Ambassadors were appointed on the advice of the Prime Minister although she could have appointed otherwise. [She could not do so] because of the political reality. But, she had two weapons, which she used finally in 2004.
That is, changing Ministers and taking over subjects, and the dissolution of Parliament. Now, both these weapons are not in the hands of a President anymore. So, while in theory there is a possibility of two power centres, in practice it will be very, very difficult for a President to act in disregard of Parliament or against the wishes of Parliament.
How does the latest amendment protect the interests of the minorities? Is there any enhancement of their rights?
Once the powers of the President are curtailed, everybody benefits from that, including the minorities. During [Mahinda] Rajapaksa’s regime, the minorities—racial, ethnic as well as political minorities —suffered a lot. With the arbitrary powers being taken away, minorities will, of course, feel safer. Even before the 19th Amendment was passed, they were happy with the presidency of Sirisena. Things have eased. Life is returning to normal. They don’t feel the pressure anymore. That’s the report that I get. We will have to work on a long-lasting solution to the ethnic issue. The defeat of Rajapaksa [in the presidential election] and the Constitutional Amendment will give us more democratic space, which can be used to tackle other problems. We have so many other problems to tackle. We have a great lot to be done [for the minorities]. There is no question about it.
Is there any indication in the latest amendment of devolution of powers to provinces?
The new Parliament will have to tackle this issue of the national question. I hope the two main parties [the SLFP and the UNP] will commit themselves in their election manifesto to a solution to the national question as well. And that would pave the way for further constitutional reforms. Ideally, we should have a brand new Constitution as we cannot go on with this Constitution. It has been amended so many times.
Do you think that the 13th Constitutional Amendment is still relevant?
I have always held that the 13th Amendment is not enough. It is flawed. We have to take note of what happened in the past 25 years. I have said this earlier. Virtually, every full stop, every comma in the 13th Amendment, has been used by people who are against devolution to take back powers. What is given with the right hand is taken away with the left hand. I am for clear-cut devolution of powers, personally speaking, and stronger provincial councils.
But, at the same time, I am also for strong power-sharing at the Centre. Institutions of the Centre will provide for power-sharing. Power-sharing should be done in such a way as to strengthen the centre without weakening the periphery.
You not only devolve powers but also bring provinces back to the Centre so that the provinces as well as the various communities will come back to the Centre and share power at the Centre, making the whole structure quite strong.
T. Ramakrishnan
