By Neville Ladduwahetty Courtesy The Island

December 26, 2016, 8:08 pm
What is the compulsion for constitutional reforms? Would these reforms be so extensive as to warrant a ‘new’ constitution, or would they be limited to specific issues that could be incorporated as amendments to the existing constitution? These are some of the questions in the minds of the public.

The Resolution for the appointment of the Constitutional Assembly states that it is expressly “… for the purpose of deliberating, and seeking the views and advice of the People, on a Constitution for Sri Lanka”. In view of the fact that Sri Lanka has already experienced the two most basic systems of Government, namely, Parliamentary and Presidential, the former in 1972 and the latter in 1978, followed by a combination of the two in 2015, the options left for “a new Constitution for Sri Lanka” are either to stay with the existing Presidential system, to revert back to a Parliamentary system, or to further experiment with a mix of the two.

Notwithstanding this background, the people elected this government on a pledge to abolish the presidential system, but it was not honoured in 2015. The other pledge made to the people was to introduce electoral reforms. Therefore, the government has no alternative but to fulfil these pledges if the franchise of the people is to be respected.

However, the elephant in the room is the so-called National Question. Consequently, the National Question and how the structure of the government at the centre relates to the provinces at the periphery, become the focal point of the envisioned Constitutional reform process.

Thus, the main issues to be addressed are:

1. The structure at the centre.

2. Electoral reform.

3. The national question

Since all three issues are specific, and furthermore, since the structure of the State and the national question would have a bearing on each other because of centre-periphery relations, all three issues could be addressed through Amendments. Therefore, since the obligation of the government is to honour the specific pledges made to the People, no justifiable grounds exist to complicate the entire reform process by attempting to introduce an entirely “New Constitution”, because it would entail repeating many provisions unrelated to the three specific issues cited above. Furthermore, addressing the three specific issues through amendments would also enable the People to express their preferences more specifically without any distraction of unrelated provisions, thereby creating the opportunity for a clearer and more accurate expression of the “Will of the People”.

THE REFORM PROCESS

Parliament resolved to form a Committee of the whole Parliament consisting of all members of Parliament with the Speaker as the Chairman of the Constitutional Assembly. The Resolution proposed the setting up of a Steering Committee consisting of 21 members appointed by the Constitutional Assembly supported by six Sub-committees each consisting of 11members to address (1) Fundamental Rights; (2) The Judiciary; (3) Law and Order; (4) Public Finance; (5) Public Service; (6) Center-Periphery Relations.

It is evident from the arrangement adopted that the main focus of the reform process is Devolution of power between the Center and the Periphery. It further becomes evident from a study of the recommendations in the six Sub-committee reports that there is a concerted attempt not only to weaken the Center and strengthen the Periphery, i.e., the Province, but also to make the Provinces as distinct and independent of the Center as much as possible. It is for this reason that the recommendations in the six Sub-committee reports become critical, because their scope and content are such that they would radically alter the Unitary character of Sri Lanka and make it Federal; not in name, but in the manner it operates, because any arrangement that creates distinct and independent Provincial units with Legislative, Executive and Fiscal powers is categorized as Federal by internationally recognized constitutional experts such as Dr. K.C. Wheare.

According to Dr. K.C. Wheare, “… in a Federal Constitution the powers of government are divided between a government for the whole country and governments or parts of the country in such a way that each government is legally independent within its own sphere. The government for the whole country has its own area of powers and it exercises them without any control from the governments of constituent parts of the country, and these latter in turn exercise their powers without being controlled by the Central Government. In particular, the legislature from the whole country has limited powers and the legislatures of the State or Provinces have limited powers. Neither is subordinate to the other. Both are co-ordinate. In a Unitary Constitution, on the other hand, the legislature of the whole country is the Supreme Law-making body in the country. It may permit other legislatures to exist and to exercise their powers but it has the right in law to overrule them. They are subordinate to it”. (“Modern Constitutions”, p. 19, cited in 13th Amendment opinion.).

This definition makes crystal clear the differences between Unitary and Federal systems. The 13th Amendment devolves ONLY Legislative powers over certain defined subjects, and any Statutes that are passed by the Provincial Councils have to be subordinate to Parliament. However, Executive powers and Fiscal powers are exercised by the Governor who is the appointed representative of the Executive President, thereby retaining both Executive and Fiscal powers at the Center. Thus, the 13th Amendment does not alter the Unitary character of the State. On the other hand, if Legislative, Executive and Fiscal powers are devolved to a degree that they are distinct and independent of the Center, the arrangement would by definition, be Federal.

RECOMMENDATIONS TOWARDS A FEDERAL ARRANGEMENT

1. WEAKENING the LEGISLATIVE POWERS of the GOVERNOR

Under the 13th Amendment, Statutes of Provincial Councils shall come into force upon the assent of the Governor [154H. (1)]. The new recommendation is to repeal the necessity for the Governor’s assent (Center/Periphery, Rec. 5 page 13)

Under the 13th Amendment, Statutes should be presented to the Governor for assent [154H (2)]. This is to be repealed. The new recommendation is for all Statutes to be reviewed by the Constitutional Court (Judiciary, Rec. 5).

The Constitutional Court consists of 7 members appointed by the President on the recommendations of the Constitutional Council. They would be outside the Court structure. The Constitutional Court would be responsible for the following:

Interpreting the Constitution

Review of Bills

Review of Laws and Statutes

Issues between Center and Provinces

Breach of Privilege of Parliament

Review of its own Judgments.

Under the 13th Amendment the Governor is required to report to the President any failure of administrative machinery (154L). This is to be deleted. The new recommendation is for the President and Prime Minister to make such determinations. Such determinations become subject to Judicial Review if challenged (Law & Order, Part II).

Thus, Legislative powers associated with the Governor have been weakened.

2. WEAKENING the EXECUTIVE POWERS of the GOVERNOR

Under the 13th Amendment the Executive powers relating to devolved subjects to Provinces are exercised by the Governor (Art. 154C).

The new recommendation is to seriously curtail these powers by bringing the administrations of the District, Divisional and Grama Niladaris under an INDEPENDENT Provincial Public Service Commission for each Province. The staff would then be responsible to and under the control of the Board of Ministers of the Province. This would deny the Governor of the staff needed to implement Executive powers relating to devolved subjects. Consequently a whole new structure would need to be created to implement 75% of the Central Budget to implement Central Government functions.

Thus, Executive powers of the Governor have been weakened.

3. WEAKENING the FINANCIAL POWERS of the GOVERNOR

Under the 13th Amendment, the custody of the Provincial Fund and all matters connected with it are regulated by the Governor. The Governor is also responsible for preparing the annual financial statement for the Province (Clause 19 (5) of the Provincial Council Act.)

The new recommendation is to make “provincial and local spheres of government competent spending authorities” (Finance Report, 18, p. 11).

Thus, Fiscal powers of the Governor have been weakened.

The cumulative effect of these recommendations is to curtail the Legislative, Executive and Fiscal powers that are currently exercised by and/or associated with the Governor. This would make the Governor only a “nominal head” (Center Periphery, 2, p.13). In effect, all the above changes would delink the Center from the Periphery and make the Province as distinct and as independent of the Center as possible.

MEASURES TO WEAKEN THE CENTER:

1. Under the 13th Amendment, National Policy on all Subjects and Functions is exercised by the Center. The new recommendation is to repeal this provision (Center Periphery, p.27). This, coupled with devolving land powers to Provinces would prevent the Center from bringing, for example, all land that falls within the watershed of all rivers in the central hills, within Central control. Many more such examples could be cited.

2. By making provision for any person to petition the Supreme Court regarding a Proclamation declaring a state of emergency for Judicial Review would undermine the judgment and the authority of the President and the Prime Minister, since the possibility exists that upon review the Supreme Court could find grounds that the declaration of emergency violates the Constitution, or is ultra-vires the powers of the President. Consequently, over-cautiousness in declaring an emergency could result and affect the national security, political stability and even the territorial integrity of the State.

3. The 13th Amendment provides for a Concurrent List wherein Powers listed in that List could be exercised by either the Center or the Province. Such Lists are provided for in the Constitutions of India, Pakistan, Malaysia, South Africa, Nigeria and Australia, to mention a few. The new recommendation is to delete the Concurrent List (Center Periphery, p. 27). This would result in creating distinct centers of power – a clear characteristic of a Federal arrangement. Such isolation of Provincial units could lead to disparities between Provinces, in the absence of the balancing influence of the C enter.

4. The new recommendation that “All Subjects and Functions not specified in any of the lists (provincial or reserved lists) should be the subject matter of the province” (Center Periphery, p. 27) is characteristic of truly Federal arrangements. Such a provision exists when political units that were separate to start with have come together to form a Federation which would have defined powers while the original separate units retained any powers that were undefined. Such an arrangement would make the structure of the State “United” and not “Unitary”. A similar provision is incorporated in the Constitution of the USA and is why the US is described as the United States of America).

5. By creating separate Provincial Police Commissions, the Law Enforcement functions would be seriously jeopardized, arising from jurisdictional conflicts of interest between National Police and Provincial Police, and lack of uniformities in the exercise of Law Enforcement. This has been the experience in countries that have territorially separated Law Enforcement. Furthermore, due to the fact that the Provincial Police Commission is appointed on the joint recommendation of the Chief Minister and the Leader of the Opposition, the influence of politics on Law Enforcement cannot be ruled out. .

6. By making Land a devolved subject, the Center would lose control to exercise National Policies relating to the environment and the manner in which provincial mineral and other national resources are exploited. Furthermore, the Center would NOT be in a position to protect archeological assets and evidence of the Buddhist civilizational heritage by hostile provincial administrations.

ADDITIONAL MEASURES to WEAKEN the CENTER

Another attempt to weaken the Center relates to the exercise of judicial powers. Judicial powers were exercised by Parliament in both Constitutions of 1972 and 1978, irrespective of whether the structure at the Center was Parliamentary of Presidential.

Notwithstanding this fact, the recommendation in the Sub-committee report on Judiciary is for the Judiciary to be independent of Parliament. Such independence is hoped to be achieved by appointing all judges on the recommendations of the Constitutional Council. This is a major departure that would contribute significantly to weaken Parliament and through it the Center. This is not separation of Legislative, Executive and Judicial powers of the People, but a flawed attempt to isolate judicial powers from Legislative and Executive powers of Parliament, forgetting the fact that 7 of the 10 members of the Constitutional Council are Parliamentarians.

CONCLUSION

What is apparent from the 6 Sub-committee reports is that the intent is not to make devolution operate more effectively for the benefit of the people, as called for in the UNHRC Resolution, but to maximize Provincial powers so that the Center is relatively weakened and the Provinces are proportionately strengthened. This would result in dismantling the Unitary character of Sri Lanka and putting in place an arrangement that would be Federal in operation.

A weakened Center cannot guarantee the territorial integrity of a State; a fact that applied not only to Sri Lanka’s own history but to that of other countries as well. Sri Lanka’s history teaches that it was the inseparable link between the Unitary State functioning within a territory that was whole and integral that facilitated the Civilizational Values inspired by Buddhism to prosper, and that whenever either was threatened it impacted negatively on these cherished values. These unique characteristics of Sri Lanka have been overlooked in the proposed Constitutional reforms. Ignoring the history of who Sri Lankans are as a People and what Sri Lanka should be as a Nation State could be a cause for deep regret.

The new exclusive and distinct powers devolved to provincial units would enable the Provinces to pass Statutes with far reaching implications such as the Right of Self-determination, or the right to hold a poll and obtain a mandate from the people in a Province in respect of any matter of provincial interest such as even Independence, as has happened with Scotland in the United Kingdom.

The entire attempt in the new Constitutional Reform process can be seen as one that is focused on addressing the National Question via Center-Periphery relations, at the expense of and to the detriment of the core interests of the overwhelming majority in Sri Lanka. This is a violation of natural justice and therefore has to be declared unacceptable.