jayampathy on 19th a, electoral reforms and 100-day program

7/21/2019 Jayampathy on 19th a, Electoral Reforms and 100-Day Program

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Jayampathy on 19th A, electoral reforms and

100-day program

President’s Counsel Dr. Jayampathy Wickramaratne expressed the

importance of abolishing the executive presidency and electoral reforms

under two dierent constitutional amendments. Dr. Wickramaratne! who is

involved in constitutional reforms! expressed his candid views about the

"#th $mendment! electoral reforms and the "%%&day program. 'e is also a

member of the (ational )ovement for *ocial Justice and a dissident of the

+anka *ama *ama,a Party -+**P.

/ollowing are excerpts0

http://www.ft.lk/2015/03/31/jayampathy-on-19th-a-electoral-reforms-and-100-day-program-2/






)arch 1"! 2%"3

40 What are your remarks about the "#th $mendment5

$0 6he "#th $mendment that was ga7etted has now been presented to

Parliament. 8n the meantime the Cabinet of )inisters has approved the

second set of changes to the "#th $mendment. 6hey have shared it with

leaders of other parties and it has also found its way to the newspapers. 8

am satis9ed with the "#th $mendment read together with the changes

proposed by the Cabinet.

40 Do you feel the "#th $mendment has met your expectations5

$0 :es! to a certain extent. 8 am a member of the drafting committee. 6here

are two senior retired drafts persons who are also members of the

committee. We only do the initial draft and then send to the legal draftsman

who makes changes. 'is draft will be the 9nal one.

40 8s it true the ga7etted "#th $mendment was not the one that was drafted

by the committee5

$0 ;anil Wickremesinghe is also the )inister in charge of the sub,ect of

Constitutional $airs. 'e has summoned a political committee on

constitutional reforms. 6hat committee has representation from all the

parties in the <overnment. 6he preliminary drafts were prepared on the

basis of decision arrived in that committee.

6he preliminary draft is in accordance with the election manifesto and the

"%% day program. 8t calls for the change in the form of government! but also

provides for the president to have certain powers unlike the

"#=2 Constitution. 6hen it had further provisions which are

applicable only to the current president )aithripala *irisena.

6hat was discussed and accepted by the political committee

and instructions were accordingly given to us and we did thedraft on that basis.

6hen it was discussed by the party leaders. $t the party

leaders meeting dierent views were expressed. 6here was

no unanimity on the issue of who the head of government

would be. 6hat is very crucial> if the head of the government

is the president! the executive presidency would continue.

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6he draft did not provide the president to be the head of the government.

8nstead it was provided that the president would act on the advice of the

prime minister! which means essentially the advice of the cabinet of

ministers like under the *oulbury Constitution. ?ut it also provided that if

the president disagrees with any advice given to him he could ask the

cabinet of ministers to reconsider that advice. @f course the president is

reAuired to act on the advice given after reconsideration. 6his is novel for

*ri +anka.

$ll parties agreed the bill must be ga7etted soon! because the government

had decided the bill must not go as an urgent one. Considering the long

period involved! everybody agreed that until full agreement was reached

the bill must be ga7etted. 6he ga7etted bill provided for the president to be

the head of the government and advice provision was deleted. 6hereafter

people who had expectations of total abolition were not satis9ed. ?ut it was

also decided at the same meeting that the president would talk to the

prime minister and they did talk to each other and then fresh proposals

were placed before the cabinet.

6he fresh proposals provided that the president would not be the head of

the government and that he would act on advice. 8n the meantime the

$ttorney <eneral has also made some observations which were also taken

into account. 6he cabinet agreed to the changes proposed to the "#th

$mendment.

40 ?ut in legal terms it is the ga7etted amendment that will be accepted5

$0 6he $ttorney <eneral has advised the <overnment that the amendments

made at the committee stage should be submitted to the *upreme Court

when the matter comes up. We have already prepared that. Changes to the

ga7etted bill would be submitted to the *upreme Court at the hearing. 6he

changes will also be given to the council to appear. 8t has already being

given to the party leaders. 8t has also found its way to the media. 6he Constitution provides for amendments made at the committee stage.

6hose amendments have to be certi9ed by the $ttorney <eneral. ?ut the

<overnment is going a step further informing the *upreme Court of the

proposed changes.

40 Can you further explain how the bill would read when read together with

the proposed changes5



$0 6he President will not be the head of the government. 6he phrase Bhead

of the government’ is taken o. $nd it was so with the *oulbury Constitution

as well as the "#=2 Constitution. 6he direction and control of the

government is with the cabinet of ministers. 6he prime minister will be the

head of the cabinet of ministers. 6hat was the phrase used in the *oulbury

Constitution as well as the "#=2 constitution.

We are bringing back the advice provision which means the President would

act on the cabinet of ministers conveyed to him by the prime minister.

Where the president does not agree! he has the power to ask the prime

mister reconsider such advice. 6hen starts the consultation process which 8

think is good. 6his provision is in 8ndia as well.

We have proposed a further provision! which strengthens parliament. 8n a

situation where the cabinet of ministers stick to its original decision or does

not change! the matter is brought to the notice of parliament by the prime

minister. $nd parliament’s views would be sought. 8f the parliament does

not express any views! for example then the reconsidered view prevails.

8f parliament’s decided original advice is to be changed! they will be free to

decide on that. 6hen thereafter it is the view of parliament that prevails.

?oth the president and the cabinet of ministers would have to act in

accordance with the views of parliament. 6his is novel to *ri +anka. $

similar provision is found in the Constitution of /inland. 8 feel this is good

because it strengthens parliament. 6he parliament is elected by the people.

6herefore in my view this strengthens the sovereignty of people.

40 Who has the authority to appoint the cabinet of ministers and the prime

minister5

$0 6he cabinet of ministers is appointed on advice of the prime minister.

ven in the ga7etted version of the "#th $mendment it is the Prime )inister

that advice who the cabinet of ministers will be.

40 'ow is the Prime )inister selected5$0 6he Prime )inister is not elected. 6he President appoints as Prime

)inister who in his opinion commands con9dence of parliament. 6hat is the

usual form.

40 *ome argue the "#th $mendment gives more powers to the speaker and

the deputy speaker. Do you agree5

$0 $ctually! now there is a change. Presently it is the prime minister who



can act. ?ut in the new structure that is proposed! it is prime minister who

advices the president. 6he prime minister cannot act for the president

because he would be advising for himself. 6herefore there has to be a third

person! the government thought the speaker should act for the president.

6here is a change as far as the deputy speaker is concerned. What we have

now proposed is that if the speaker is unable to act for the president that

the prime minister with the consultation with the leader of opposition would

nominate a member of the parliament.

40 During the election President )aithripala *irisena vouched to abolish

executive presidency and said he will not to exercise any power. Why has

the "#th $mendment given certain powers only for himself5

$0 President *irisena never said he would not exercise any powers> he only

promised to abolish executive presidency.

40 ?ut how can he promise to abolish executive presidency and retain

certain powers under him5

$0 'e is not keeping anything under him. 'e can hold ministries. When he

holds ministries he will have act on the collective decisions of the cabinet of

ministers. 6he "#th $mendment spells out the certain powers. President

*irisena has expressed his wish to retain the )inistry of Defence! )inistry of

nvironment and )ahaweli under him. $fter all! this was all made possible

because of him. 6hat has to be acknowledged. We should not forget that he

is the elected President. 'e is the one who gave leadership to this. 'e will

only hold these ministries until his current term of oce is over. $fter that!

under the "#th $mendment there is no provision that says the president

can hold ministries after the present president’s current term of oce.

40 Do you also believe a hung parliament will not be conducive for the

country5

$0 We are restricting the powers of the president to dissolve the parliament.

Parliament will be restricted for 9ve years. /or the 9rst four&and&a&half years

parliament can be dissolved by a two&thirds of the ma,ority reAuest ondissolution. 8t is good. 6here is a similar provision in the ?ritish system as

well. People are fed up with freAuent elections. 6his provision also permits

the incumbent prime minister to decide when it is most bene9cial to his

party. 8t is not fair. 'e can take the country by surprise. 8t is also good for

the parties to work together. 8t is stability. 8 believe there is no stability

when parties get together and form coalitions. 8f they cannot go on! they



will decide on a general election. 8n *ri +anka! except for "#32 and "#== we

have always had coalitions. 6he *+/P had never formed a government of its

own. 6herefore coalitions are nothing new.

40 Don’t you agree such a situation will encourage crossovers for mere

personal gains! similar to what happened during )ahinda ;a,apaksa’s

<overnment5

$0 6here is a restriction on the number of ministers> 1% cabinet ministers

and E% other ministers and deputy ministers. ?ut that is for the next

parliament only. We have to go in stages. 8t is possible to increase the

numbers of ministers but with the approval of parliament provided only if

the main two parties in parliament are part of the government. 6herefore!

you cannot buy parliamentarians or oer ministries to anybody.

)any parliamentarians who crossed over! mainly from F(P to the

government! ran to the district court and got a stay order! whereas the

*upreme Court had been given an exclusive ,urisdiction to deal with the

expulsion of )Ps. What the parliamentarians did is to go to the lower court

and get an en,oining order and thereby stalled the disciplinary process of

the party. 6herefore there is a provision in the "#th $mendment to take

away the ,urisdiction of other courts. $ny matter involving the disciplinary

control of a )P has to go to the *upreme Court. *ome )Ps have kept their

en,oining orders going on for four years. 6his would also prevent people

from crossing over.

40 Why is the ;ight to 8nformation $ct incorporated in the "#th

$mendment5 *houldn’t it be presented as a separate bill5

$0 6he ;ight to 8nformation $ct will be presented to parliament. 6he

manifesto and the "%% day program only promised the ;ight to 8nformation

?ill. We are going further than that and elevating the right to information as

a fundamental right.

40 During his campaign President *irisena pledged to remove immunity of

the president but he has so far failed to do it. :our views5$0 8mmunity will be restricted for his ocial acts. 'is ocial acts can be

challenged under the fundamental right ,urisdiction of the *upreme Court. 8t

is best that this is given to the highest court! otherwise hundreds and

hundreds of applications will be 9led in the district court. President’s ocial

acts can usually be challenged in two ways> by writs and fundamental

rights. $rticle "2 will be enough to challenge any act of the executive. 6his



is a tail&end of a parliament. 6he new parliament will deal with more

comprehensive constitutional reforms. We do not have time to do that.

40 What is the relationship between the "#th $mendment and the electoral

reforms5

$0 8f we go through the "%% day program it is clear that the changes in the

form of government and the "=th $mendment and the bringing back the

"=th $mendment will be done through a separate constitutional

amendment and electoral reforms will be brought in by a second

constitutional amendment. Fnder the "%% day program! on 2" January! the

constitutional amendment for the change in the form of government and

bringing back the independent commissions should be presented to the

Parliament. 6he fact that we are behind the schedule is a dierent issue.

@ne week after that on 2G January! the committee was to be appointed to

go into the electoral reforms. 6hat committee would take almost a month

and present its recommendations on 2 )arch. ?ased on those

recommendations a second constitutional amendment would be presented

to parliament on "= )arch. 8t is very clear that there are two dierent

amendments. 8t is well and good if you can agree on both. 8 am totally

opposed to agreement on electoral reforms being a precondition to the "#th

$mendment. 8 am for both the amendments to be presented to parliament

and passed before the general election.

6he Commissioner of lections has come up with a new proposal> a

modi9ed form of mixed system that is found in Healand. 'e has not given

us any details. $t a 9rst glance most party leaders thought it is worth going

into. 6his week we will send the proposals. We are due to meet on I $pril. 8f

there is agreement on electoral reforms! that would be a bonus to the

country.

40 President *irisena’s manifesto promised there will be a general election

at the end of the "%% days. :our views5

$0 8t appears the "%% days is going to stretch a bit! but 8 have no problemeven with "3% days. 6he (ational )ovement for *ocial Justice said that this

must be run in "G% days. 'owever! 8 don’t like this dragging too much. (ew

political factors have come into place. (ew political relationships are made!

existing relationships break down. 6hat can scuttle the whole system.

40 What are your remarks about President *irisena taking over the *+/P and



oering ministerial positions to *+/P members that was not included in the

"%% day program5

$0 8n the "%% day program! on "% /ebruary! it clearly says! a government

will be formed with the support of all other parties! not only the parties who

helped President *irisena. 6herefore! actually if you go by the mandate! an

all&party government has been promised.

jayampathy on 19th a, electoral reforms and 100-day program

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