Updated draft of new Constitution

An updated draft of a new Constitution has incorporated several new features but a cloud of uncertainty hangs over how soon political parties would be able to reach any consensus.

Main among them are the two principal partners in the Government – the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP). Each seems to be waiting for the other to make its position known. The draft, in the form of an interim report, was originally formulated in November last year and updated only in May this year by the Steering Committee of the Constitutional Assembly.

The very first discussion on the provisions of this draft last month ended abruptly after heated exchanges. It was over the existing provision in the Constitution that “The Republic of Sri Lanka is a unitary state.” The “Joint Opposition” (led by Dinesh Gunawardena) insisted that this provision be retained. So did the Jathika Hela Urumaya (JHU) headed by Minister Patali Champika Ranawaka. They also sought another amendment in addition. That was to include the following provision: “Any amendment or repeal and replacement of the Constitution shall only be made by Parliament and the People, in the manner provided for in the Constitution.”

However, four other parties — the Sri Lanka Muslim Congress (led by Minister Rauff Hakeem), Tamil Progressive Alliance (a grouping of plantation sector political parties headed by Minister Mano Ganesan), the All Ceylon Makkal Katchi (led by Minister Rishad Bathiuddin) and the Eelam People’ Democratic Party (led by Douglas Devananda) — are proposing an amendment. They want the provision changed to “Sri Lanka shall be known as ‘United Republic of Sri Lanka.’ In Sinhala that would be “Sri Lanka Eksath Janarajaya” and in Tamil “Aikkaya Elankai Kudiyarasu.” The word ‘unitary’, some of these party members say, would run counter to new provisions on devolution.

The return of Prime Minister Ranil Wickremesinghe is now awaited to fix a new date for another meeting of the Steering Committee which he chairs. There onwards, a clause by clause discussion is expected on nine different areas — the introductory chapters of the present constitution including nature of State, Sovereignty and Religion, Principles of Devolution including land, Central Legislation on Provincial List Subjects, the Capital Territory, Second Chamber, Electoral System, the Executive, Constitutional Council and Law & Order. Since the document is still in draft form, changes and amendments are to be expected.

Yet, some of the key features in the draft on which the political parties will deliberate are of significant interest. The draft notes that “there was general consensus that the Executive Presidency be abolished” and adds that “the President should be elected by Parliament for a fixed term of office.” Some questions do arise over how the draft has recorded that there “was general consensus.” This is particularly in the case of the SLFP.

As far back as January 3 this year, 14 SLFP ministers resolved during a meeting with President Maithripala Sirisena that the Executive Presidency should be retained. They were unanimous that Sirisena should be the party’s candidate at the 2020 presidential election. The proposal was made by Duminda Dissanayake, who is General Secretary of the SLFP. Their thinking on the matter was on the premise that the party should not seek changes to any provision in the existing Constitution that would eventually necessitate a national referendum. This was reported in these columns on January 15. Thereafter, in fact, members of the SLFP’s subcommittee on the new Constitution met representatives of the All Ceylon Buddhist Congress leaders to brief them on their party’s position as revealed in these columns on January 22.

However, the SLFP subcommittee chairman and Minister Nimal Siripala de Silva told the inconclusive meeting of the Steering Committee last month that his party would present a comprehensive document. That would be their response to provisions in the new draft. There does not appear to be a marked policy shift in their earlier position of not seeking a referendum on provisions that require one. “We will examine all the clauses and make a final decision on our position. We will then have to ask our Central Committee to approve it,” an SLFP minister said. Either way, in the absence of a highly unlikely electoral arrangement between the SLFP and the UNP, it could see a three-cornered contest by the key players — one from the Opposition, one from the SLFP and another from the UNP. The UNP is at the early planning stages for a campaign for its candidate, Premier Wickremesinghe.

A newer feature in the draft is different proposals when it comes to picking the Prime Minister. The options to be discussed are: (a) Direct election of the Prime Minister. (b) Pre-nomination of the Prime Minister, and (c)

Westminister system (which is currently followed). The draft says, “The Steering Committee was generally in favour of a selection of a system of election based on pre-nomination of candidates for PM.” For this purpose, (1) any political party may nominate a candidate for election as the Prime Minister; (2) A political party may nominate the nominee of any other political party or group; (3) A political party may choose not to nominate a candidate for Prime Minister. Provision is made in the draft for “each person nominated by a political party for election to the First Chamber of Parliament, whether as a local electorate MP or under the PR (proportional representation) list, is deemed to pre-commit their support for the person nominated by that political party as Prime Ministerial candidate.” Also eligible are independent candidates standing for election in a single member electorate or as members of an independent group under PR rule may also pre-commit support for a candidate for PM.

At the end of the poll and the declaration of results, the Election Commission will determine whether or not a candidate for PM has received pre-commitments from a majority of all elected MPs. The candidate receiving the majority of pre-commitments will be declared elected as PM. If the Election Commission determines that no candidate for PM has received a majority of pre-commitments from elected MPs, the PM will be elected at a Special Session of Parliament where the sole business will be the election of the PM. This system will also apply if the Westminister model is adopted.

The PM and Government, according to provisions of the draft, “whether elected at the general election, or elected by the House after an inconclusive general election, shall not be removed from office during the first two years of its term except (a) by a vote in the House passed by not less than two thirds of the members express it has no confidence in the Government” or (2) the Government is unable to secure passage of the Annual Appropriations (Budget) Bill after three attempts. In such instances the Parliament is to stand dissolved when Parliament passes them.

The draft notes that the Steering Committee accepted the proposals that the Province be the primary unit of devolution. It adds that “the Constitution (by way of a Schedule) should identify the geographical area/districts included within each Province, as well as the geographical area of Capital Territory.” It notes that provisions relating to possible merger of Provinces “require further consideration by the Steering Committee” and points out that the “TNA (Tamil National Alliance) has suggested that the Constitution recognise the Northern and Eastern Provinces, as a single Province.” However, a paper submitted by ‘JO’ leader Dinesh Gunawardena states that there should be no amalgamation of Provinces. On the other hand, the draft says, the Jathika Hela Urumaya (JHU) had proposed that “decentralisation of power should take place on a district-based system.”

The Steering Committee has recommended the inclusion of a clause or clauses as safeguards against secession. It has stated that “The Constitution should specifically state that the Sri Lankan State is “undivided and indivisible.” It should specify that “No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of Province or part thereof, from Sri Lanka.”

Noting that the TNA has “suggested that the Constitution recognize the Northern and Eastern Province as a single Province,” the draft has said that “the existing provisions of the Constitution relating to the possibility of two or more Provinces forming a single unit, should be retained, with the additional requirement that a referendum of the people of each of the provinces concerned should also be required.”

All State land, in terms of the draft, will be vested in the Republic. A Provincial Administration may negotiate with the Central Government for the release of any State land to be used for the purposes of any subject or function in the Provincial List. Where a Provincial Council does not comply with such requirement, the President shall refer the matter for arbitration to a tribunal consisting of a member appointed by the Prime Minister, a member appointed by the Chief Minister and a Chairman appointed by the members who are named. A decision of such tribunal shall be binding on the Centre and the Provincial Council, and, subject to the right of the Government and the Provincial Council to appeal to the Constitutional Court against such decision. No other court or tribunal shall have the power of jurisdiction to inquire into, pronounce upon, or in any manner call into question, such decision.

The draft report says that “there was general consensus that a second chamber should be established, which is largely representative of the Provinces. It has suggested that the Second Chamber should “consist of 55 members, 45 drawn from the Provincial Councils) (each nominating five Members of such PC on the basis of a Single Transferable vote) and ten Members elected by Parliament on the basis of a Single Transferable Vote.” Such ten members, the draft says, “should be persons of eminence and integrity who have distinguished themselves in public or professional life.”

The second chamber, the draft notes, shall not have the power to veto ordinary legislation back to Parliament for reconsideration. After Bills are placed on the Order Paper of Parliament, they shall be referred to the Second Chamber to obtain its views, if any, prior to the Second Reading. No Constitutional Amendment shall be enacted into law unless passed by both Parliament and the Second Chamber with special two thirds majorities.

A new electoral system has been a hotly debated subject, with smaller political parties like the SLMC and the Janatha Vimukthi Peramuna (JVP) raising objections to previous proposals and the current one. The draft now proposes a Mixed Member Proportional (MMP) system, which seeks to ensure proportionality of the end result (allocation of seats), while also having directly elected constituency seats. A specified number of bonus seats, the draft says, shall be allocated to the party that obtains the largest number of seats nationwide.

A total of 233 seats are distributed, 140 (or 60 percent) on the basis of First Past the Post (FPP) and 93 (40 percent) as compensatory seats “required to ensure that the final result reflects proportionality.” A specified number of extra seats, the draft says, shall be allocated to the Northern Province for a specified period of time, to “compensate disparities caused to displacement of persons.” The First-Past-the-Post seats are to be filled from Single-member Constituencies (SMCs) and Dual Member Seats (DMCs). Each voter has two votes, both in a single sheet. One vote shall be for the SMC (or MMC) candidate and the other vote for the party.

With regard to law and order, the draft says that it should be exercised by the “Central Government and the Provinces as provided for in the Constitution.” This is through (1) Sri Lanka National Police, and (2) Sri Lanka Provincial Police. The draft says, “The nature, type and quantity of firearms, ammunition, explosives, armaments and other equipment for all Provincial Police Services shall be determined by the National Police Commission after consulting the Provincial Police Commissions….” However, the JHU has taken up the position that Law and Order should a subject reserved to the Centre.

Perhaps for the first time, provision has been made in the draft to debar the Minister in charge of the subject of Law and Order from issuing “case specific instructions relating to the conduct of criminal investigation or prosecutions.” The Provincial Police Commission, according to the draft, “shall be responsible for the recruitment, promotion, transfer, disciplinary control and dismissal of offices of the Provincial Police below the rank of Assistant Superintendent.” The Provincial Police Commission shall consider the need “to ensure due representation.”

The Steering Committee has recommended that the Centre should be permitted to prescribe, by way of framework legislation, uniformity with regard to the constitution, election, form, structure and powers of Local Authorities. However, it has made clear it should be within the powers of the Provincial Councils. (Sunday Times)

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