The new draft constitution prepared by a panel of experts, for the consideration of the Steering Committee of the Constitutional Assembly is now out. The panel of experts who prepared this draft comprised the following: Prof. Suri Ratnapala, N. Selvakkumaran, Prof. Navaratna Bandara, Asoka Gunawardena, Suren Fernando and Niran Anketell. Proposed Article 1 of the draft constitution describes the Sri Lankan state as follows: “Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an aekiya rajyaya / orumiththa nadu, consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution. In this Article aekiya rajyaya / orumiththa nadu means a State which is undivided and indivisible, and in which the power to amend the Constitution, or to repeal and replace the Constitution, shall remain with the Legislature and the People of Sri Lanka as provided in this Constitution.”
We have been assured umpteen times by the yahapalana government as well as the Tamil National Alliance that no one is encouraging separatism and the purpose of the new constitution will not be to divide the country. If that is really so, why can’t the present very simple formulation where Articles 1 and 2 of the present Constitution describes Sri Lanka (Ceylon) as ‘a Free, Sovereign, Independent and Democratic Socialist Republic’ and asserts that the Republic of Sri Lanka is ‘a Unitary State’ be allowed to remain as it is? The proposed very convoluted description of Sri Lanka as ‘an aekiya rajyaya / orumiththa nadu, consisting of ‘the institutions of the Centre and of the Provinces’ which shall exercise power as laid down in the Constitution is fraught with various implications which will become clearer as we examine other features of the proposed new constitution and is therefore bound to encounter stiff opposition.
The proposed Article 1 of the draft constitution reeks of separatism. There is no need to have Sinhala and Tamil words to interpret the English phrase ‘unitary’. The phrases aekiya rajyaya and orumiththa nadu mean different things to Sinhalese and Tamils. If passed into law, this will be a replay of the Ilangei Tamil Arasu Katchi (ITAK) being described as ‘Federal Party’ in English whereas in Tamil it means ‘Tamil State Party’. In any event, present day formal Constitutions were never evolved by either the Sinhalese or the Tamils. This is an European import and the meaning of the English phrase ‘unitary’ is what best describes the nature of the Sri Lankan state. Any change in the description of the Sri Lankan state will be a case of opening a political Pandora’s box.
Coupled to the above is the proposed Article 4 in the draft which describes the territory of Sri Lanka as ‘constituted of its geographical territory, including the Provinces as set out in the AAA Schedule of the Constitution’. However, the present Constitution describes the territory of the Republic of Sri Lanka as consisting of the twenty- five administrative districts. The switch from districts to provinces will be looked upon with extreme suspicion by the general public in Sri Lanka because the separatist cry was always based on provincial boundaries. Readers will note that even in the proposed Article 1 of the draft, there is a reference to the Sri Lankan state consisting of the institutions ‘of the Centre and of the Provinces’. In fact this switch from districts to provinces and according the province a special status runs throughout the proposed draft constitution which no doubt will arouse suspicions about the real intent behind this exercise. Our present Constitution furthermore has a proviso in Article 5 stating that parliament may subdivide or amalgamate the existing administrative districts so as to constitute different administrative districts, but this proviso is missing in the proposed draft constitution and the province is envisaged and presented as a solidified territorial unit. What the draft constitution does have instead is a provision 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 any Province or part thereof, from Sri Lanka.”
One gets the distinct impression that the drafters of this proposed constitution being only too well aware of the suspicions that their choice of words would evoke, have included this anti-separatist clause to assuage any suspicions that the people may naturally entertain about the intent behind this draft constitution. However in the context of what the new draft constitution actually proposes, as we will see in later installments of this analysis, this reassurance will sound quite hollow to all concerned.
According to the draft constitution, the National Anthem of Sri Lanka is to be “Sri Lanka Matha/ Sri Lanka Thaaye which means that the Sinhala and Tamil versions of the national anthem will have equal status in the constitution. Even India with its multiplicity of languages and ethnic groups and states bigger than most nation states, has only one national anthem and it is sung only in one language. It will therefore be difficult to convince the Sri Lankan public that Sri Lanka’s national anthem should be sung in two languages. If it has come to such situation that a minority that makes up about 15% of the country’s population refuses to sing the national anthem of the country in the language of the majority 75%, where is the unity in that country? The 10% of Tamil speaking Muslims have not expressed any reservations about singing the national anthem in Sinhala. Besides, more than half the Tamil population lives outside the north and east and among the majority Sinhalese. So this parity of status for the Sinhala and Tamil versions of the national anthem will in itself be a cause of friction. Would not caution require that the present provisions in our Constitution relating to the national anthem be allowed to remain as it is without further experimentation?
When it comes to Article 9 of the present Constitution which accords the foremost place to Buddhism, the draft constitution has proposed two alternatives. One is to retain the present formulation which goes as “Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Article 10 and 14(1)(e).” However there is a preference indicated for a version which goes as follows: “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while treating all religions and beliefs with honour and dignity, and without discrimination, and guaranteeing to all persons the fundamental rights guaranteed by the Constitution.” Most people in Sri Lanka including many non-Buddhists may prefer to retain the present formulation without trying to experiment with it. Even His Eminence Malcom Cardinal Ranjith has made indications to that effect.
One has to state that when it comes to abolishing the executive presidency, the present draft constitution has sought to fulfill the principal pledge given at the last presidential elections. The present executive presidency is to be replaced with a ceremonial presidency. Under the proposed draft constitution, the President will be the Head of State and the Commander-in-Chief of the Armed Forces but he will not be the head of the executive, head of the government or head of the cabinet of ministers. Under the proposed Article 18 of the draft constitution, the President is to always, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister. The president will also not be elected directly by the people of Sri Lanka but by Parliament on the exhaustive ballot system where if one candidate does not get an overall majority of the total number of MPs in both houses of parliament, the candidates with the lowest number of votes is eliminated from the race and a further round of voting takes place until somebody gets an overall majority. The person who is elected President can be either a member of parliament or any other individual. If he happens to be a member of parliament, he will have to relinquish his seat in parliament to take up the position of President.
Under the proposed draft constitution, during his tenure the ceremonial President should not be a member or office bearer of any political party. A president so appointed can be removed if a resolution of no-confidence against the President, is introduced by any MP and signed by at least half the total number of Members of Parliament, and this resolution of no-confidence is passed by two thirds of the whole number of members of the Second Chamber (including those not present). The first thing that the public got to hear about this new draft constitution was parliamentarian Dayasiri Jayasekera stating that under the terms of this proposed constitution the President could be removed by the Prime Minister, the Speaker and the Leader of the Opposition acting in concert.
This is a reference to the proposed Article 17(3)(c) in the draft constitution which says that the president can be removed from office ‘on a unanimous decision by a committee consisting of the Speaker, Prime Minister and Leader of the Opposition that the President is permanently incapable of discharging the functions of the office of President by reason of mental or physical infirmity’. There is no cause for MP Jayasekera to worry, because this is not a reference to the present president but to a ceremonial president appointed under the proposed new constitution which has not been passed yet. Parliamentarian Dayasiri Jayasekera seems to have panicked because Prime Minister Ranil Wickremasinghe, Speaker Karu Jayasuriya and Opposition Leader R.Sampanthan have a tendency to collude, and he would have thought that the moment the new Constitution was passed, his boss would be flung out on to the street. Besides, this provision is to kick in only in the case of mental or physical infirmity. Since the new constitution will have only a ceremonial President one would say that there is nothing seriously objectionable in the proposed Article 17(3)(c).
What is highly objectionable however is the proposed Article 17(2) of the draft constitution which goes as follows: “Any person who has been twice elected to the office of President in accordance with the provisions of this Chapter and / or in accordance with any previous Constitution, shall not be qualified thereafter to be elected to such office by Parliament.” What is the purpose of such a provision? If the position of President is merely a ceremonial post with a constitutional requirement that he always should act on the advice of the Prime Minister, why should a former executive President not be allowed to become a ceremonial President? One thing that readers should take note of is that like everything that the yahapalana government does, the draft constitution that we are discussing now is also designed around the Rajapaksas. The only purpose of proposed Article 17(2) appears to be to keep former President Mahinda Rajapaksa out of that office even after it is turned into a ceremonial position.
We pointed out last week that in terms of the Government’s proposed draft constitution, prepared by a panel of experts for the Steering Committee of the Constitutional Assembly, the executive presidency is to be abolished and the Prime Minister is to be the head of the government and the Cabinet. The President will be obliged to carry out his duties on the advice of the Prime Minister except in instances where discretion is expressly vested in the President. One of the instances when discretion is vested in the President is of course in appointing the Prime Minister. The proposed draft constitution says that the President shall appoint as Prime Minister the Member of Parliament, who in his opinion ‘enjoys the confidence of Parliament’. However, this discretion ceases to operate when a political party has obtained more than 50% of the total number of seats in Parliament, and where such party had nominated its Prime Ministerial candidate at the time of tendering of nominations. In such instances, the President is obliged appoint such person as Prime Minister without the requirement of an election by Parliament.
When Parliament meets for the first time after a general election, immediately after the election of the Speaker, Deputy Speaker and Deputy Chairman of Committees, a resolution of confidence in the Member appointed as Prime Minister shall be moved. If the vote of confidence is not passed by a majority in Parliament, the Member already appointed Prime Minister, shall cease to hold office, and Parliament shall elect one of its Members to be Prime Minister. The election of the Prime Minister by Parliament shall be on the exhaustive ballot system where if one candidate does not get an overall majority, the candidates with the lowest number of votes is eliminated from the race and a further round of voting takes place until somebody gets an overall majority. The Prime Minister will be vested with the power to appoint and remove cabinet ministers, state ministers and deputy ministers according to his will.
The total number of Cabinet Ministers is to be limited to 30; and non- Cabinet Ministers and Deputy Ministers limited to a further 30. Where Parliament passes a motion of no-confidence against the Government, by a simple majority of the whole number of Members of Parliament (including those, not present) the Cabinet of Ministers shall stand dissolved, and a new Prime Minister and Cabinet of Ministers appointed. The Secretary to the Cabinet, Secretary to the Prime Minister and the Secretaries of all Ministries will be appointed by the Prime Minister.
Limiting powers of ‘Central Legislature’
Parliament is referred to in the draft constitution as the ‘Central Legislature’ which gives one a fair picture of the general trend in these constitutional proposals. This ‘Central Legislature’ is to comprise of the Parliament and the Second Chamber. Parliament shall consist of 233 Members and its term is to be five years. The President may dissolve Parliament if Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour. In the first two years of the Parliament, if the Government is unable to secure the passage of an appropriation Bill after three attempts, the President shall dissolve Parliament. After the first two years, if the government is unable to secure the passage of an appropriation Bill after two attempts, the President shall dissolve Parliament. A proclamation dissolving Parliament will also fix the date for a general election and summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.
The Second Chamber shall consist of 55 members 10 members of who are appointed by Parliament and the remaining 45 as five each by the nine provinces. The Second Chamber shall exercise oversight and other functions as may be provided by the Constitution, by law, or by the Standing Orders of Parliament. Every Bill shall he published in the Gazette at least 14 days before it is placed on the Order Paper of Parliament. Upon a Bill being tabled in Parliament, such Bill shall be referred to the Second Chamber, and placed on the Order Paper of the Second Chamber, at its next sitting. The Second Chamber shall consider such Bill, and shall return it to Parliament within one month specifying areas where reconsideration is necessary. The draft constitution states that “Prior to enacting the Bill into law, Parliament shall give due consideration to the views of the Second Chamber”. However the term ‘due consideration’ has not been defined.
The Central Legislature has exclusive power to make laws, including laws having retrospective effect, with respect to any of the matters enumerated in the National List. However, when enacting laws on subjects coming under the provincial list, each and every Provincial Council will have to agree to the enactment of such a law. If all Provincial Councils are not in agreement then such laws can be passed only with a two-thirds majority in both houses of Parliament plus a referendum. Under Article 154G(3)(b) of the present Constitution, Parliament can make any law applicable to the subjects on the Provincial Councils list with just a two-thirds majority. However the new constitution seeks to make this virtually impossible by placing three major hurdles in the way of Parliament when legislating on subjects coming under the provincial councils list. Such a law will firstly need a two-thirds majority in Parliament, then a two-thirds majority in the Second Chamber and then approval by the people at a referendum.
Even in the event that the central authorities do manage to get a law relating to a matter on the provincial councils list passed in this tortuous manner, the provincial councils will still be able to pass statutes on the same matter and the statute passed by a provincial council (with a simple majority) will always override the central authority law passed with two-thirds majorities in both houses of Parliament as well as a referendum! Thus what the new constitution seeks to do is to create a federal state in Sri Lanka with the ‘central legislature’ virtually powerless to make laws on subjects coming under the provincial councils. It is in this context that the shift in this draft constitution from administrative districts to provinces becomes all the more relevant. The province is to become the basic unit of reckoning even when electing MPs to parliament.
What is envisaged are virtually independent provincial units tied to the centre with the flimsiest of bonds that can be shaken off at will. When it comes to the concurrent list, Parliament can make laws on matters coming under the concurrent list only after such consultation with all Provincial Councils. The word ‘consultation’ has not been defined but given the tenor of the draft constitution the word undoubtedly means ‘agreement’. If even one PC does not agree, the power of Parliament to make any law on a subject coming under the concurrent list will be called into question. What this does is effect is to transfer all powers on the concurrent list to the PCs. Under Article 154G(5)(a) of the present Constitution, Parliament may make laws with respect to any matter set out in the Concurrent List after such consultation with all Provincial Councils ‘as Parliament may consider appropriate’ in the circumstances of each case. Note the phrase ‘as Parliament may consider appropriate’ which confers the authority on Parliament. Moreover, under Article 154G(6) of the present Constitution, if any provision of a statute made by a Provincial Council is inconsistent with the law made by Parliament, the provisions of the provincial statute will be void.
Judicial review of legislation
The limitation of the powers of the central legislature under the proposed draft constitution becomes even more evident when it comes to its power to determine national policies. The proposed draft constitution states that the Cabinet may formulate national policy on a subject in the provincial list only if such matter cannot be effectively dealt with by the legislation of an individual province, or the maintenance of legal or economic unity, especially the maintenance of equivalent living conditions beyond the territory of a Province necessitates it. In formulating national policy on any matter in the provincial list, the Cabinet has to adopt a participatory process with the Provincial Boards of Ministers. Even after the formulation of national policy by Cabinet on a matter in the provincial list, the respective Provinces shall continue to exercise the relevant executive or administrative powers in respect thereof. The formulation of national policy will override statutes enacted by a Provincial Council in respect of matters in the Provincial List only if the law is passed with a two-thirds majority in both houses of Parliament plus a referendum.
Parliament may by law prescribe national standards, where minimum standards are necessary to ensure the enjoyment by citizens of a reasonable minimum standard of living throughout the country; and the minimum standard of state service delivery throughout the country; or a reasonable minimum standard of environmental protection throughout the country. The power to prescribe national standards will not deprive the respective Provinces of their legislative and executive competence. The central government may also prescribe national standards by way of regulations under authority of law. However, such regulations shall not be valid unless approved by both Houses of Parliament. Furthermore, the substantive and procedural validity of such regulations may be challenged in the Constitutional Court.
Under the present Constitution, no court of law can inquire into an Act passed by Parliament. But under the proposed draft constitution, the Constitutional Court is to have the power of judicial review and they can strike down a law passed by Parliament or any of the provincial legislatures. This will be a major new development the implications of which are hard to foresee. The Constitutional Court will however not be able to call into question a Constitutional Amendment once it is passed. As in the present Constitution, the proposed draft constitution also provides that if the Cabinet has certified that any Bill is intended to be submitted for approval by the People at a Referendum, in addition to obtaining a two thirds majority in both houses of Parliament, it shall not be necessary to refer such Bill to the Constitutional Court. The new features that are to be introduced with regard to the legislature through this proposed draft Constitution will be as follows.
=A bicameral legislature instead of a unicameral legislature as at present.
=Severe restrictions on the law making powers of the central legislature and the solidifying of the powers of the provincial councils.
=Severe restrictions on the central executive and central legislature in formulating national policies and standards.
=Judicial review of all legislation except for constitutional amendments.
Under the proposed draft constitution, there will be no executive presidency and no more presidential elections. Hence the system of electing MPs to parliament becomes all important. Furthermore, changing the system of electing MPs to Parliament so as to ensure stable governments was the main precondition for abolishing the executive presidency because the present proportional representation system in 30 years of operation and seven parliamentary elections, had allowed a winning party to obtain a clear majority in Parliament only on two occasions. It is, therefore, vital to examine whether the system, proposed in the proposed draft constitution, will enable stable governments to be formed. The system of elections that the yahapalana government introduced last year at the local government and provincial council level have come in for a great deal of criticism because of the unstable administrations they give rise to.
Both the major political parties have been talking about electoral reform and it was actually the UNP government of 2001-2004 that set up the Parliamentary Select Committee on Electoral Reform under the Chairmanship of Dinesh Gunawardena. After years of deliberations, this PSC put out its interim report in 2007 outlining a system of elections which had been proposed to the PSC by Professor Sudantha Liyanage of the University of Sri Jayewardenapura.
This system was introduced at the local government level through amendments that were moved to the LG elections law in 2012 with the UNP and the UPFA both expressing agreement. The first local government election under the system thus put in place in 2012 was to be held in 2015, but the present government delayed it for three years and before they finally held the local government election, they once again changed the whole system of elections. Thereafter, they made similar changes to the provincial councils elections law as well but following the last LG elections, most of the political parties that helped pass these amendments to the LG and PC election laws are now against the system they put in place less than a year ago.
The proposed new constituency + PR based system
Under the new electoral system proposed in the draft constitution, Parliament is to have a total of 233 MPs. Of this number, 140 will be elected from constituencies on the first past the post system. A further 76 MPs will be elected from the provinces according to the proportion of votes received by each political party. The national list which will also be elected on the proportional representation system will consist of 12 MPs.
The remaining five seats in Parliament will be allocated as bonus seats for the political party that wins the most number of seats. Once every fifteen years, the President is to establish a Delimitation Commission consisting of five persons appointed on the recommendation of the Constitutional Council, for the delimitation of electoral constituencies. The first such Delimitation Commission is to be established within three months of the coming into operation of the new constitution and its task will be to divide the nine Provinces into electoral constituencies. (Note that the electoral constituencies will not be based on districts as at present but on provinces.)
In creating the electoral constituencies, ethnic and religious differences are to be taken into account, and where the Delimitation Commission considers it necessary, they may create dual-member constituencies but these would have to be kept down to a minimum. In order to arrive at the number of MPs each province is entitled to, the total number of electors whose names appear in the registers of electors of all the Provinces shall be divided by 216. The number resulting from such division is the ‘qualifying number’. The total number of voters whose names appear in the register of electors of each Province shall be divided by the qualifying number to arrive at the number of MPs that each province is entitled to. If after division, the total number of members to be returned by all the Provinces ascertained by reference to the qualifying number turns out to be less than 216 members, the Province having the highest number of balance electors will be entitled to return one more member and so on until the total number of members to be returned comes to 216.
Political parties contesting in any electoral district (meaning province) will submit one nomination paper setting out the names of each candidate nominated in respect of each electoral constituency, and the names of additional candidates to be elected on the proportional representation quota in respect of such Province as is equivalent to the number of additional members to be elected from such Province increased by three. In order to ascertain the number of MPs each party is entitled to after a poll, the total valid votes cast in each province will be divided by the total number of members to be elected for that Province to obtain the ‘resulting number’. The total number of votes polled by each recognized political party and independent group within the Province, shall then be divided by the resulting number to arrive at the number of MPs each party is entitled to. If after this division, there are still one or more seats to be allocated, the party having the highest number of residual votes will be declared to be entitled to elect a member and so on until all vacancies are filled.
Another pure proportional representation system
The candidate nominated by the party that polls the highest number of votes in any electoral constituency shall be declared elected as the Member of Parliament elected from such constituency. In the case of dual member electoral constituencies, the two candidates who poll the highest number of votes, shall be declared elected. The number of MPs each province is entitled to return on the proportional representation quota will be determined by subtracting the total number of MPs elected from the constituencies from the total number of seats each province is entitled to.
The balance number of MPs to which each party is entitled to in each province on the proportional representation system shall be declared elected by the Elections Commission in the numerical order in which such names appear in the list furnished by the political party concerned. If any party by virtue of winning more electoral constituencies, has obtained more seats than the number of seats it would be entitled to according to the proportion of votes it got, that party shall be deemed to have been allocated such number of seats as is equal to the number of electoral constituencies it has won, and shall not be allocated any further seats out of the proportional representation quota.
After 216 MPs have been declared elected in the manner outlined above, the Election Commission will apportion the 12 national list seats in the following manner – the total valid votes polled in all Provinces by all parties shall be divided by 228 to arrive at the ‘resulting number’.
The total number of votes polled by each party within all Provinces, shall then be divided by the resulting number and the Election Commission shall declare the number of Members entitled to be elected nationwide from each such recognized political party and independent group. If any party has obtained more seats than its entitlement due to winning more constituency seats than its proportion of votes would entitle it to, the total amount of seats it has received in all Provinces shall be recorded as the amount of seats such party is entitled to.
In the eventuality mentioned above, the entitlement of the respective parties will be recalculated as follows – the total valid votes polled in all provinces by all parties shall be divided by 228 reduced by a number corresponding to the number by which any party had received seats in excess to their entitlement to arrive at the resulting number. The total number of votes polled by each party within all provinces, shall then be divided by the resulting number and the Election Commission shall declare the number of Members entitled to be elected nationwide from each such party.
The Elections Commission shall declare that each such political party or independent group is entitled to return an additional number of Members equivalent to the total number of Members calculated as stated herein, less the number of Members already declared elected from the lists of such party or group in the provinces.
After the declaration of the election of such number of members, if there are one or more seats yet to be allocated, such seats shall be allocated by reference to the residual votes to the credit of each party as well as the votes polled by any party not having any of its candidates entitled to be declared elected under this allocation. The party having the highest number of votes will be declared to be entitled to elect an MP and so on until all vacancies are filled. The Elections Commission shall declare elected Members corresponding to the number specified here, from the national list furnished by each party in the numerical order in which names appear in the list.
The party which secures the highest number of valid votes throughout the country shall be entitled to the remaining five seats as bonus seats.
The Elections Commission shall declare elected the five bonus Members from the national list furnished by such party in the numerical order in which such names appear in the said list, after accounting for any Members already declared elected from such list.
What we see from the above is that the new system of electing MPs to Parliament proposed in the draft constitution is a pure proportional representation system in all but name and not actually a hybrid ‘first past the post/proportional representation’ system as was proposed by the Dinesh Gunawardene led PSC in 2007 and introduced to the local government elections law in 2012. When the yahapalana government changed the local government and provincial council elections laws last year, what it did was to introduce a pure proportional representation system in place of the hybrid first past the post/ proportional representation system that everyone was hoping for. What would confuse most ordinary people is that the yahapalana government’s pure proportional representation systems are all dressed up to look like hybrid first past the post/proportional representation systems. Under the yahapalana elections system, there are territorial constituencies which elect representatives on the first past the post system. But thereafter, the proportion of votes the various parties obtain nationwide are calculated and the party that has won more constituencies is penalized by being deprived of seats on the PR system. In other words, the party that gets to the top of the greasy pole is pulled right back down.
Penalising the winner
What the system proposed by the Dinesh Gunawardene led PSC and introduced to the local government elections law in 2012 was a hybrid system where those who get to the top of the greasy pole by winning in the constituencies are allowed to retain their winnings while the others are ensured adequate representation through the proportional representation quota. How those who won more seats in the constituencies were allowed to retain their winnings was by subtracting the votes received by all those who win seats in the constituencies from the votes received by their respective parties when calculating the seats to be allocated on the proportional representation quota. From this it follows that the party that wins a lot of constituencies will have a lot of votes subtracted and will therefore get less seats on the PR quota. However the parties that lose in the constituencies will have all their votes counted when the PR quota seats are allocated.
In the system proposed by the Dinesh Gunawardene led PSC, pride of place was given to the constituencies and the PR quota was restricted to 30% of the total number of seats so as to ensure stable governments. However in the changes introduced to the local government elections law by the yahapalana government, the proportional representation quota has been increased to 40% and in the changes to the PC elections law to 50% – a situation that guarantees instability.
This is why so many political parties including those in the government are clamouring for the upcoming PC elections to be held according to the old PR system on the grounds that the old system despite all its faults, was more capable of providing for a stable administration. From our experience so far in relation to the changes wrought by the yahapalana government in the local government elections law, the PC elections law as well as the latest proposals made in the draft constitution, it becomes obvious that the only way out of this impasse is to go back to the system proposed by the Dinesh Gunawardene PSC.
In this regard the light at the end of the tunnel is that the UPFA and the UNP does have a history of having cooperated to introduce the Dinesh Gunawardene PSC’s proposals to the local government level in 2012. If this country is to have a system of election that guarantees stable governments, there will have to be an understanding between the two main political parties on this matter and they will have to disregard the unreasonable demands being made by the JVP and other small parties.
Radical changes in the Judiciary
A completely new feature of the proposed draft constitution is the 55 member-second chamber of Parliament. Each of the nine Provincial Councils will nominate five of its members to sit in this second chamber. Other than the Chief Minister who will be an ex officio member of the second chamber, the other four nominees of the provincial council should not be members of the provincial board of ministers. These nominees of the provincial councils will hold office for the duration of their Provincial Council. The PCs also have the power of recall over their nominees to the second chamber. The remaining ten members of the second chamber will be nominated by Parliament from among persons of ‘eminence and integrity’ who have distinguished themselves in public or professional life.
Another new feature envisaged in the draft constitution is the restoration of by-elections. If the seat of a Member elected from a constituency falls vacant, a by-election will have to be held. In the event of a vacancy occurring in a provincial or national list seat, the next person on the respective list submitted by the relevant party will be declared appointed to Parliament by the Elections Commission. While the 19th Amendment prohibited dual citizens from contesting elections, the proposed draft constitution seeks to take this one step further by bringin in the additional requirement that a dual citizen wishing to contest an election in Sri Lanka will have to relinquish his foreign citizenship at least 12 months prior to tendering nominations for an election! It is only too plain that this is an attempt to prevent either Gotabhaya Rajapaksa or Basil Rajapaksa from contesting the 2019 Presidential election or the 2020 Parliamentary election.
Another novel feature in this draft constitution is that a candidate at a parliamentary election will be able to contest an electoral constituency while also appearing on the provincial PR list as well as the National List submitted by a party. The present government has a tendency to tailor the constitution to suit the needs of individuals in the government or to keep individuals in the opposition out of the running and it is obvious that this particular provision allowing candidates to appear as candidates in constituencies as well as on the PR list and the national list has been brought in with a view to bringing the favourites of the party leader into Parliament by any means available. Such provisions only goes to show the real motives behind this entire constitution making process.
Supreme Court supreme no more
The judiciary is to undergo some radical changes according to the provisions of the proposed draft constitution. A Constitutional Court is to be established to exercise the Constitutional jurisdiction exercised at present by the Supreme Court. The proposed Constitutional Court is to have a President and six other members who will be appointed by the President on the recommendation of the Constitutional Council. Those appointed to the proposed Constitutional Court are to be persons who have distinguished themselves in the judiciary, legal practice or legal education with specialized knowledge or experience in constitutional law. Members of the Constitutional Court are to be appointed for a term of five years and will be eligible for reappointment. The Constitutional Court is to exercise jurisdiction over interpretation of the Constitution, the Judicial Review of Bills; Judicial Review of Laws & Statutes and Jurisdiction regarding disputes between the Central Government and Provinces. Whenever any question arises in proceedings in any other court on a matter coming under the jurisdiction of the Constitutional court, it will have to be referred to the Constitutional Court. The Constitutional Court is to have sole jurisdiction to determine whether any provision of a Bill requires to be approved by the People at a Referendum.
The jurisdiction of the Constitutional Court to determine any such question may be invoked by any citizen by a petition addressed to the Court and there will be no time limit within which such a reference has to be made. We pointed out in a previous article that one of the new features that the draft constitution proposes to introduce is the judicial review of legislation. The age of retirement of Judges of the Supreme Court and Court of Appeal shall be sixty-five years. Like many other things in the present government’s constitution making process, this Constitutional Court also seems to be tailored to suit certain individuals.
There is no age limit for those sitting on the Constitutional Court. They are to be appointed for a five year term and can be reappointed. Furthermore, members of the Constitutional Court need not be members of the judiciary. Those who have been in ‘legal practice’ or ‘legal education’ with ‘specialized knowledge or experience in constitutional law’ can also be appointed to the Constitutional Court. One gets the distinct impression that some of those involved in drafting the new constitution are trying to create sinecures for themselves to spend their retirement. If such doubts are to be dispelled, there should be a transitional provision in the new constitution which says that nobody even remotely connected with the present constitutional reform process will be eligible for appointment to the Constitutional Court.
The process for the removal of judges of the superior courts is also to be changed. Under the provisions of the draft Constitution, it is the Constitutional Council that will have the power to entertain complaints regarding any judge of the Constitutional Court, Supreme Court or Court of Appeal. If the Constitutional Council finds a prima facie case to have been established against the judge concerned, the Constitutional Council shall refer the allegations to a Panel of three former Judges of the Constitutional Court, Supreme Court or Court of Appeal appointed by the Constitutional Council for that purpose, who shall inquire into the allegations. In the case of an inquiry into the President of the Constitutional Court or the Chief Justice, the Panel shall comprise sitting or former Judges of the highest court in any other Commonwealth state. This Panel will inquire into the allegations and report to the Constitutional Council.
Where a finding of misconduct, incapacity or intentional violation of the Constitution is arrived at, the Panel shall communicate such finding to the Constitutional Council with a recommendation that the Judge be removed. Where the Panel recommends removal of the judge, the Constitutional Council shall refer such case to Parliament and Parliament may thereafter, by a resolution passed by a simple majority of the whole number of Members of Parliament request the President to remove the Judge. Upon receipt of such a resolution the President shall remove such Judge. The requirement that when the conduct of the President of the Constitutional Court or the Chief Justice is being inquired into, the Panel will have to be made up of retired or serving judges from foreign countries will be widely questioned. No self-respecting nation will place an impeachment process under a panel of judges from foreign countries.
Foreigners to decide on dismissing top judges
Promoters of the present constitution may say that when Sirima Bandaranaike appointed a Commission of Inquiry to look into the assassination of her husband, she appointed two foreign judges from Egypt and Ghana to serve on it. But that was only a fact finding commission, not a panel tasked with recommending the removal of the highest ranking judge and the second highest ranking judge from office. Since the President of a Court of law is only a first among equals, one would think that a Panel appointed from among retired Supreme Court judges by the Constitutional Council would suffice for the purpose as the case of other judges of the same courts. Those who drafted these proposals seem to even mistrust the Constitutional Council they advocate so ardently when it comes to the removal of the two highest ranking judges. In this case, the mistrust is such that decision making power is to be given to complete foreigners. This is a country that does not allow good Sri Lankans who have obtained dual citizenship even to contest elections. Yet the removal of our two highest judicial officers is to be entrusted to complete foreigners who may never have set foot in Sri Lanka earlier!
No retired Judge of the Supreme Court or Court of Appeal may accept any paid or unpaid function in the State sector within two years of his retirement or resignation as a Judge, other than in the training of other Judges or academia. It is interesting to note that the Judges of the Constitutional Court are not burdened with this restriction which means that a judge after serving his five year term on the Constitutional Court, can accept a state sector position – a sure way of ensuring that the judges of the Constitutional Court will always be looking for ways to ingratiate themselves with the government of the day for them to obtain a sinecure after completing their tenure in the Constitutional Court. As we pointed out earlier, one of the purposes of the draft constitution seems to be to provide well paid retirement jobs for its promoters.
After the creation of the Constitutional Court, the Supreme Court will continue to have final appellate jurisdiction in civil and criminal matters, but it will no longer be the highest Court in the land because it will be subject to the jurisdiction of the Constitutional Court. Another major change proposed is that the fundamental rights jurisdiction currently exercised by the Supreme Court will be transferred to the Court of Appeal. It has further been proposed that the composition of the Judicial Services Commission which at present comprises of the Chief Justice and two other judges of the Supreme Court be changed to comprise of the Chief Justice, one other judge of the Supreme Court and the President of the Court of Appeal. The Judicial Services Commission is tasked with the appointment, transfer, dismissal and disciplinary control of judicial officers of the High Court downwards, and of public officers serving as Registrars and other senior officers of the Courts system. Given the change in the status of the Supreme Court that is envisaged in the draft constitution, in a way, there seems to be nothing wrong in the President of the Court of Appeal sitting on the Judicial Services Commission.
There is a provision in the draft constitution which says that in making recommendations for appointments to the office of President of the Constitutional Court, the Chief Justice, President of the Court of Appeal and every other Judge of the Constitutional Court, Supreme Court and Court of Appeal, the Constitutional Council shall consult judges of the superior courts including the judge being replaced, the Attorney General, the President of the Bar Association and any other relevant person. Even when the President was the sole authority in making appointments to high judicial office informal consultations were always made. The very persons who were thus consulted by former Presidents would have been people like sitting and former judges of the Supreme Court, the AG and President of the BASL. However by introducing a constitutional provision to the effect that the Constitutional Council is mandatorily required to consult such individuals before making recommendations for high judicial office, patron-client relationships may be built up over a period of time between those being consulted and the appointees to high judicial office. Since the President of the BASL will have a say in appointing the very judges that he will be appearing before, there will also be an inbuilt conflict of interest in this matter. A more suitable course of action may be to allow the Constitutional Council to make informal inquiries at their own discretion as they obviously do at present.
Statehood without the name, for Provincial Councils
At present, seven of the ten members of the Constitutional Council are Members of Parliament with only three being outsiders. The task of the Constitutional Council is to recommend appointees to important commissions such as the Public Service Commission, Elections Commission, the National Police Commission and to high state positions such as the Attorney General, IGP, Chief Justice etc. The Speaker of Parliament is the ex – officio Chairman of the Constitutional Council. Under the proposed draft constitution, the number in the CC is to go up to 11 with the addition of the Speaker of the second chamber of Parliament. Most significantly, there will be a radical change in the composition of the CC with the number of parliamentarians on it being reduced to four and the number of outsiders to seven. Under the draft constitution the CC is to comprise the following: the Prime Minister; Speaker of Parliament; Leader of the Opposition; the Speaker of the Second Chamber; one person appointed by the President; five persons nominated by both the Prime Minister and the Leader of the Opposition; and one person nominated by agreement among the majority of MPs belonging to political parties that are not the parties to which the Prime Minister or the Leader of the Opposition belongs.
Even though the draft constitution stipulates that the seven non-parliamentarians in the CC are to be persons of ‘eminence and integrity’ who have ‘distinguished themselves’ in public or professional life and who are not members of any political party, it also says that in appointing these five members, the Prime Minister and the Leader of the opposition have to consult the leaders of political parties represented in Parliament so as to ensure that the Constitutional Council reflects the ‘pluralistic character’ and ‘social diversity’ of Sri Lankan society. This is essentially a revival of one of the most negative aspects of the old 17th Amendment where the nominees appointed by the PM and the Opposition leader were actually stooges and cronies of the various political parties in Parliament. It is quite clear that the five members elected by the PM and the Opposition leader and the person appointed by the President and the person appointed by the smaller political parties in Parliament will all be political party nominees with the last one being appointed in rotation among themselves by the smaller parties.
Despite the negative experience that we had with this arrangement under the old 17th Amendment, the drafters of the new constitution have irrationally included this again in the new draft constitution as well. If the theory is that the people’s representatives elected to Parliament cannot be trusted to make proper appointments to the independent commissions and high state positions, how is the appointment of various hangers on of political parties to do the same job going to improve the situation? It is quite clear that this fixation with appointing non-parliamentarians to the Constitutional Council is due to an inability get over a certain frame of mind – however plain the evidence that such schemes will not work.
Changes in the Provincial Councils system
One of the most contentious aspects of the proposed draft constitution will be the provision made for two or three adjoining Provinces to form one administrative unit with one elected Provincial Council, one Governor, one Chief Minister and one Board of Ministers. Such an arrangement is to be subject to a referendum in each of the Provinces concerned. This is a carry forward from the 1980s when the separatist lobby wanted the Northern and Eastern Provinces merged. At that time too, the merger was to take place on the basis of a referendum in the Eastern Province. Given the ethnic composition of the Eastern Province the possibility of the merger being approved at a referendum was remote even in the 1980s. Today, without the LTTE to terrorise voters and stuff ballot boxes, it’s an impossibility. Yet the drafters of the proposed new constitution continue to pay pooja to this ideological shibboleth of the Tamil separatist lobby. This also reveals the driving force behind the constitution making process.
Probably due to the realization that the merger is a dream that will never be fulfilled, the drafters of the new constitution have added Section 190 which goes as follows: “Two or more Provincial Councils may co-operate with each other in implementing their executive functions.” No one knows what that sentence means and how two or more PCs can cooperate with one another in the manner envisaged. The proposals in the draft constitution taken as a whole, seek to confer virtual statehood on the provinces, going far beyond the status of the Indian states. In India, on whose model our provincial councils system is based, the President appoints the State Governors and they hold office during the pleasure of the President. There is no provision for states to be able to remove a Governor under any circumstances. In Sri Lanka, under Article 154B(1) of the present Constitution, if it is proven that the Governor has intentionally violated the Constitution or is guilty of misconduct, corruption, abuse of power, bribery or moral turpitude, the Provincial Council may pass a resolution with a two thirds majority calling for the removal of the Governor.
The proposed draft constitution seeks to take this to a radical new level by enabling a Provincial Council to simply dismiss a Governor at will, by passing a resolution with a two thirds majority upon which the President will have to remove the Governor from office.
Enabling a province to remove a Governor at will in that manner vitiates the very purpose for which Governors are appointed to the provinces. The proposed draft constitution in fact expressly seeks to achieve that end by stipulating that the executive power of the Province shall be exercised by the Chief Minister and the Board of Ministers. In contrast to this, the Indian Constitution clearly states that the executive power of the State shall be vested in the Governor.
There is also a clause in the proposed draft constitution which states that the exercise of power by the Governor shall be on the advice of the Chief Minister and the Board of Ministers. When the power of the Governor is vitiated in this manner, the hold of the centre on the periphery ceases to exist and this obviously is one of the main objectives of the proposed draft constitution.
Under Article 154H of our present Constitution, when statutes passed by the Provincial Councils are presented to the Governor for his assent, he can either assent to the statute or return it to the Provincial Council for reconsideration. If the statue is passed again by the PC with or without amendments, and sent to the Governor, he can either assent to it or reserve it for reference by the President to the Supreme Court. If the Supreme Court determines that the statute is consistent with the Constitution, the Governor is mandatorily required to assent the statute. In Sri Lanka even under the present Constitution, we see that the President is just a post box through which statutes passed by the PCs are sent to the Supreme Court.In India however, the President has much wider powers with regard to the statutes passed by the states. Under Articles 200 and 201 of the Indian constitution, when a Bill passed by a state legislature is presented to the Governor, he can either assent to it or refer it to the President. The Indian President, can if he so wishes, simply withhold assent without having to explain his decision to anybody.
It should be noted that in India, granting or not granting assent to statutes is purely an affair of the executive with the judiciary having no role in it. Thus we see that even under the present Constitution, we are in a much weaker position than the Indian President and Governors when it comes to discretion in granting assent to legislation passed by the provinces. What the proposed draft constitution seeks to do is to remove even the limited power that the centre has over statutes passed by the provinces. Under the draft constitution, even the post box role that the President has under the present Constitution has been eliminated and only the Governor (who is to be constitutionally subordinated to the Chief Minister) will have anything to do with the statutes passed by the PCs. When a Statute enacted by a Provincial Council is referred to the Governor for assent, he can either assent to it or return it to the provincial council for re-consideration within a period of fourteen days.
If the Governor fails to assent to or return it for re-consideration within that two week period, the Statute shall be deemed to have been assented to. If the Governor returns the Statute for reconsideration, and the Provincial Council enacts the statute, with or without amendments, the Governor shall assent to same within fourteen days of the Statute being referred to him again, or he shall refer the Statute (directly, without having to go through the President as at present) to the Constitutional Court for consideration of its constitutionality. If the Governor has failed to assent to the statute or refer it to the Constitutional Court, the Statute shall be deemed to have been assented to at the end of fourteen days. Thus even the limited powers the Sri Lankan centre had over statutes passed by the Provinces is to be eliminated.
Imprimatur of the Chief Minister under the proposed draft constitution, the Governor of a Province shall have the power to grant pardon to any person convicted of an offence under a Statute made by the Provincial Council of that Province or a law made by Parliament on a matter in respect of which the Provincial Council has power to make Statutes. This should be looked at in the context of the envisaged transfer of all substantive police powers to the provinces so that most offences except a few stipulated ones like international crimes and fraud involving currency will be allocated to the centre. If all other offences come under the purview of the province and the Governor becomes a creature of the Chief Minister as is envisaged in the draft constitution, it follows that the Chief Minister of the province will in effect be exercising the power of pardon over virtually all crimes. According to Article 161 Of the Indian Constitution too, the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter coming under the state government.
However the way this differs from what has been proposed in the draft constitution is that in Sri Lanka, the Governor is to be turned into a subordinate of the Chief Minister whereas in India, the Governor is the representative of the very powerful Indian President and when an Indian Governor acts, it’s on the imprimatur of the centre. However under the proposed draft constitution in Sri Lanka, the Governor will be granting pardons under the imprimatur of the Provincial Chief Minister. The result of such an arrangement in the North and East, and indeed in the rest of the country as well, given the kind of Chief Ministers we have, can only be imagined.
Under the proposed Constitution the number of Ministers in the provinces other than the Chief Minister is to be increased from four at present to six. The Provincial Councils are also to be accorded a privilege not available to the Parliament. The Provincial Councils will be able to dissolve themselves, if more than one-half of the Members of the Provincial Council (including those not present) resolve that the Provincial Council be dissolved. However Parliament cannot dissolve itself without a two thirds majority under the present 19th Amendment and also the provisions of the proposed draft constitution. Clearly the drafters of the new constitution seem to feel that democracy is more important at the provincial level than at the national level. Why else would there be a difference in the manner provincial and national legislative bodies dissolve themselves? A new feature in the draft constitution is the proposal to carve out a ‘Capital Territory’ from the Western Province which will function independently of the Western Provincial administration.
(To be continued)
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