NMSJ Proposals for New Constitution – Part II

Constitutional Miscellany

By Dr. Jayampathy Wickramaratne
President’ Counsel

(Continued from Monday (13)

The National Movement for Social Justice (NMSJ) has proposed that Sri Lanka reverts to a parliamentary form of government. The NMSJ’s founder, Ven. Maduluwawe Sobitha Thera, who was a strong opponent of the Executive Presidency, frequently referred to the warnings of Madam Sirimavo Bandaranaike, Dr N. M. Perera and Dr Colvin R. De Silva against adopting a Presidential form of government.

Madam Bandaranaike said, in 1978: “The effect of this amendment is to place the President above the National State Assembly. Above the law and above the courts, thereby creating a concentration of State power in one person, whoever he might be. This has happened in other countries before, and history is full of examples of the disastrous consequences that came upon such nations that changed their Constitutions by giving one man too much power. We oppose this Bill firmly and unequivocally. It will set our country on the road to dictatorship, and there will be no turning back. This Bill will mark the end of democracy in Sri Lanka, as the late Dudley Senanayake realised when these same ideas were put to him in the United National Party.”

Dr De Silva had said: “There is undoubtedly one virtue in this system of Parliament (…) and that is that the chief executive of the day is answerable directly to the representatives of the people continuously by reason of the fact that the Prime Minister can remain Prime Minister only so long as he can command the confidence of that assembly. We do not want either Presidents or Prime Ministers who can ride roughshod over the people and, therefore, first of all, over the people’s representatives. There is no virtue in having a strong man against the people.”

The results of the Executive Presidency are all there to see. A President elected by a massive majority, supported by a two-thirds majority in Parliament, and strengthened by the 20th Amendment to the Constitution, has miserably failed and has given the lie to J. R. Jayewardene’s famous claim that “We need an executive freed from the whims and fancies of the legislators.” Collegial decision-making has again been proved to be better than decisions taken unilaterally in the Presidential Secretariat.

The Executive

The NMSJ has proposed that the President be elected by an electoral college, comprising, Members of Parliament and members of the Second Chamber. The electoral college shall also elect a Vice-President who shall be from a community other than the community to which the President belongs.

The President shall only be the formal Head of the Executive. Except where expressly provided by the Constitution, the President shall exercise powers on the advice of the Cabinet of Ministers conveyed to him by the Prime Minister. The Cabinet of Ministers shall be charged with the direction and control of the Government of the Republic. The Cabinet of Ministers shall be collectively responsible and answerable to Parliament.

The President shall appoint, as Prime Minister, the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament. However, the President shall not have the power to remove the Prime Minister.

The Prime Minister, appointed after a General Election, shall be deemed to have resigned if a vote of confidence in him is not passed at the first sitting of the new Parliament. A Prime Minister appointed after the first sitting of a Parliament shall be deemed to have resigned if a vote of confidence in him is not passed by Parliament within seven days of his appointment. The Prime Minister shall also be deemed to have resigned if a motion of no-confidence in the Government is passed, the Budget is defeated in Parliament or the Statement of Government Policy is defeated in Parliament.

Secretaries of Ministries and Heads of Departments shall be appointed by the National Public Service Commission in consultation with the relevant Minister.

Constitutional Council

Ven. Sobitha Thera strongly supported the Constitutional Council process and independent Commissions. The NMSJ has proposed that the Constitutional Council, abolished by the 20th Amendment, be re-established with powers not less than under the 19th Amendment. Apart from the Prime Minister, the Speaker and the Leader of the Opposition, the members of the Constitutional Council shall not be Members of Parliament.

The Right to Information Commission shall be added to the list of Commissions to which appointments could be made only on the recommendation of the Constitutional Council. The National Audit Commission and the National Procurement Commission, abolished by the 20th Amendment, shall be re-established. An agency to assist and advise state sector institutions in the matter of procurement shall be established by law. There is no need for a permanent Delimitation Commission. However, any commission, committee or person tasked with delimitation in relation to Parliamentary, Provincial or local authority elections shall be appointed on the recommendation of the Constitutional Council.

Members of any regulatory authority, established in relation to the electronic or other media, data protection, cyber security, public utilities, monetary and financial services, competition in trade and foreign trade, shall be appointed on the recommendations of the Constitutional Council.

The Governor of the Central Bank shall be added to the list of officials whose appointment must be approved by the Constitutional Council.

Devolution

Devolution introduced by the 13th Amendment has come to stay, and even the present Government, that came to power on a nationalist platform, is extremely unlikely to abolish Provincial Councils. If that be the reality, it is best that Provincial Councils be suitably empowered. Devolution must not be viewed only as a solution to Sri Lanka’s ethnic conflict but also as an instrument to develop the periphery. Sadly, successive governments have used every conceivable provision, literally speaking, every comma, or full stop, in the Constitution, to frustrate devolution.

The NMSJ has, accordingly, proposed that there be the maximum possible devolution, based on the principle of subsidiarity; that is, whatever could be more efficiently handled by the lowest tier should be vested in such tier. Local government shall be recognised as a tier of government. The allocation of subjects and functions between the three tiers of government shall be guided by the principle of subsidiarity. Such allocation shall be clear and unambiguous and shall not be overridden or encroached on, except by constitutional amendment.

The Province shall be the primary unit of devolution. The term of a Provincial Council shall be five years. Elections to all Provincial Councils shall be held on the same day. Appropriate constitutional provisions shall be made to ensure that elections are held regularly for all Provincial Councils, as in the case of Parliamentary elections.

If a Provincial Council passes a motion of no-confidence in the provincial administration, or the Budget, or the Statement of Policy, is defeated in the Provincial Council and a new administration formed does not win a vote of confidence within 14 days, the Provincial Council shall be dissolved, and the Governor shall be in charge of the Provincial administration until an election is held for the constitution of the Council along with elections for the other Provincial Councils.

Parliamentary legislation on matters in the Provincial Council List shall not have the effect of the Centre taking over the administration of such matters. In formulating national policy on matters contained in the Provincial Council List, the Central Government shall adopt a participatory process with the Provincial Councils. The Constitution shall provide the circumstances in which the Centre may prescribe national policy.

National policy, declared by the Central Executive, shall not override statutes enacted by a Provincial Council in respect of matters in the Provincial List. However, if central legislation is enacted to give effect to such national policy in accordance with the constitutional provisions relating to the enactment of legislation on devolved subjects, the relevant Provincial statutes shall be read subject to such national legislation. The approval of the Second Chamber would be necessary for such legislation. The formulation of national policy on a Provincial List matter would not have the effect of the Centre taking over executive or administrative powers with regard to the implementation of the said devolved power; the Provinces will retain executive or administrative powers in relation to the said devolved power.

Parliament may, by law, provide for the implementation of functions on selected subjects in the Reserved List by the Provinces. Parliament or Provincial Councils may by law/statute provide for the implementation of specified functions within their purview to be carried out by local authorities.

Regarding the Provincial Executive, the NMSJ proposes that the Governor of a Province should not have been politically active during the period of three years, immediately prior to appointment, and shall not be involved in politics during the period of office.

The Chief Secretary of a Province shall be appointed by the National Public Service Commission with the concurrence of the Chief Minister. Secretaries of Provincial Ministries and Heads of Departments shall be appointed by the Provincial Public Service Commission in consultation with the relevant Provincial Minister.

The appointment, promotion, transfer, dismissal, and disciplinary control of officers of the Provincial Public Service shall be by an independent Provincial Public Service Commission (PPSC) constituted for each Province. The members of the PPSC shall be appointed by the Governor on the joint nomination of the Chief Minister and the Leader of the Opposition of the Provincial Council concerned. Where there is no agreement between the Chief Minister and the Leader of the Opposition, the Constitutional Council shall make the nominations after consulting the Chief Minister and the Leader of the Opposition.

There shall be a Chief Ministers’ Conference, comprising the Prime Minister and the Chief Ministers of all the Provinces, which shall meet at regular intervals to discuss issues of common concern and to promote inter-provincial and Centre-Province co-operation. The Prime Minister shall preside at the Chief Minister’s Conference.

Community Councils:

Constitutional provisions shall be made to ensure that at various levels of government and in different geographical areas, the rights of communities that are minorities within such areas are protected.

(To be continued.)