The discussions on a new Constitution so far are revolving around a Parliamentary democracy with a Prime Minister elected by the legislature.
The Constitutional Assembly is considering three options for the election of the Prime Minister, including the Israel system of government which has a ceremonial President in addition to the Prime Minister who is the head of government, media was told at a recent workshop held in Parliament.
It was revealed that the hierarchy of the legislature is to be maintained in the new Constitution. Hence, there will not be a federal form of Government in Sri Lanka under the new Constitution. The draft discussion paper submitted to the Constitution Assembly spells out that there is no institution above or on par with Parliament.
The workshop held at Parliament’s Committee Room 01 under the Chatham House Rule was organized by the Constitutional Assembly Secretariat, following requests by the Parliamentary Journalists’ Association and the E-society of the Parliamentary Journalists’ Association.
The resource persons at the workshop included Co-Chairman to the Management Committee of the Constitutional Steering Committee, Dr. Jayampathy Wickremaratne, Additional Secretary to the Constitutional Assembly, Yuresha Fernando, Secretary Public Representations Committee on Constitutional Reform, Winston Pathiraja and Members of the Panel of Experts to the Constitutional Assembly, Prof. Navaratna Bandara of Peradeniya University and Prof. Camena Gunaratne of the OUSL.
Among the key focus areas of deliberation currently being discussed within political parties and legislators include principles of devolution, electoral reforms, religion and land powers. Once the internal deliberations are over the proposals will be taken up at the Constitutional Assembly on January 5 and 6.
With regard to the Provincial Councils, the panel of experts explained, that the legislators are looking at ways to overcome the challenges facing provincial councils and their smooth implementation, based on 28 years of experience since the introduction of the 13-A. There is no move to give the provincial administration additional powers.
There is general consensus that the executive presidency must be done away with and replaced with a traditional Prime Minister. The deliberations are looking at the Israel system of government, but there is also focus on the shortcomings in this system. Israel has a ceremonial President who is the head of state but the real executive powers are with the Prime Minister. In the Sri Lankan system there is the possibility to retain some of the executive powers with the President.
The emphasis is to ensure an independent judiciary while making sure that power will not be heavily concentrated on a few individuals and institutions. “The idea is not to replace the executive presidency with an executive Premier.”
Allaying fears, the panelists said, “Even though the authoritative executive presidency will be done away with, the electoral reforms will be designed to promote both, a strong democracy and a stable government. “We want to ensure that there is no ‘tail wagging of the dog’ situation once the new Constitution is in place.”
“We must remember that the Government overcame a military coup in 1962 and the 1971 insurgency, without an executive president,” the panelists pointed out.
Another key proposal is the provision to set up a Constitutional Court to hear matters related to the Constitution. Explaining the need for the special court the expert panelists said, it will be helpful since the Supreme Court (SC) judges are not always conversant with Constitutional Law. Such courts are found in a number of countries.
This Court will not have powers to overrule any judgment by the SC but it may have powers to review laws and present judicial interpretations of the Constitution.
With regard to religion, there have not been any proposals to take away the foremost place given to Buddhism, but requests have been received to remove any discriminatory status to other religions. The panelists said, the broad agreement at this stage of the constitutional process is not to make any changes to the particular clause.
Another important proposal made by the Centre Periphery Relations Sub Committee, is to introduce tough provisions to discourage crossovers among members of political parties. “When Lalith Athulathmudali and Gamini Dissanayake left the UNP, they lost their parliamentary seats. This law is still the same today, but the MPs act to move the District Court and obtain restraining orders against any decision by the party to annul their membership. These restraining orders can be extended up to five years until the government’s term of office expires.”
When the 19th Amendment was proposed an effort was made to give only the Supreme Court the power to issue restraining orders on such matters. “Our attempt was to propose a remedy for crossovers, but a particular MP objected to it, and as a result, this important provision suffered a stillbirth.”
An expert panelist said, there is a strong will and serious discussions to reintroduce that provision through the new Constitution. “We hope it will be a success. There will be provisions to annul the parliamentary seat, but through a fair process such as an internal inquiry. There are also proposals to hold a by-election so that such MPs will be given a chance to re-enter Parliament.”
Another key issue that the legislators are trying to settle is the transfer of powers over provincial public service, from the Governor to an independent Provincial Public Service Commission.
The panelists at the workshop said, this is a request by the Chief Ministers of all the provinces, not just the North and the East, so it was unfair to give it a communal tilt.
“Even the President has no such powers. At the national level the public service is governed by the Public Service Commission. The Governor being a non-elected person should not be allowed to hold such excessive powers.
At present he can alter any decision or action concerning public servants by an appeal. Such sweeping powers interfere with provincial administration,”the experts opined.
There will not be any change to powers vested in Parliament over state finances.
The citizen’s right to life will be assured in the first Article while the social, cultural, environmental aspects and children, women, senior citizens and the differently abled persons will be covered under the Fundamental Rights chapter of the Constitution.
The Constitutional Assembly will meet on January 5 and 6 to discuss the draft interim report and there will be a debate over a period of three days between January 9 to 11 on the six subcommittee reports, with a view to fine tune the proposals that will be agreed upon in the draft interim report and subsequently the Constitution Bill. The reports by Fundamental Rights, Judiciary, Finance, Law & Order, Public Service and Centre-Periphery Relations will be taken up for debate.
The Constitution Bill will be enacted into law if the Bill is passed in Parliament by a special majority of two-thirds, and subsequently in a people’s referendum. But, according to the resolution passed in Parliament for the appointment of the Constitutional Assembly, a ‘referendum’ is required only in situations covered by Article 83 of the present Constitution.
As per Article 83, a referendum is required if there are amendments to certain clauses in Articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 30(2) and 62 (2). If there are no changes to these entrenched clauses, the new Constitution can be passed with only a two thirds majority in Parliament.
The panelists said, despite this provision the Constitutional Assembly may decide to hold a referendum so that the new constitution will receive the people’s blessings.
The Constitution this time is drafted based on the 1978 constitution, therefore whether the new constitution requires a referendum will depend on Article 83. When the 1978 constitution was enacted, it was introduced as a fresh constitution, thus a referendum was mandatory, the panelists said.