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Constitutional diversity
By Dr Jayampathy Wickramaratne
President’s advice
(Monday suite (13)
The National Movement for Social Justice (NMSJ) has proposed that Sri Lanka return to a form of parliamentary government. The founder of the NMSJ, Ven. Maduluwawe Sobitha Thera, who was a staunch opponent of the executive presidency, frequently referred to warnings from Madam Sirimavo Bandaranaike, Dr NM Perera and Dr Colvin R. De Silva against adopting a presidential form of government.
Madame Bandaranaike said in 1978: “The effect of this amendment is to place the President above the State National Assembly. Above the laws and the courts, creating a concentration of state power in one person, whoever they are. This has happened in other countries before, and history is full of examples of the dire consequences that have befallen such nations who have changed their constitutions by giving too much power to one man. We strongly and unequivocally oppose this bill. This will put our country on the path to dictatorship, and there will be no turning back. This bill will mark the end of democracy in Sri Lanka, as regretted Dudley Senanayake realized when these same ideas were presented to him in the United National Party.
Dr De Silva had declared: “There is undoubtedly a virtue in this system of Parliament (…) and it is that the head of the executive of the day is responsible directly to the representatives of the people at all times because of the fact that the Prime Minister can only remain Prime Minister as long as he can gain the confidence of this assembly. We do not want presidents or prime ministers who can trample on the people and, therefore, first and foremost, the representatives of the people. There is no virtue in having a strong man against the people.
The results of the Executive Presidency are all here to see. A president elected by a massive majority, backed by a two-thirds majority in parliament, and bolstered by the 20th Amendment to the Constitution, has failed miserably and denied JR Jayewardene’s famous claim that “We need an executive freed from the whims and fancies of lawmakers. Collegial decision-making again proved to be better than decisions taken unilaterally within the Presidential Secretariat.
Executive
The NMSJ proposed that the President be elected by an electoral college made up of deputies and members of the second chamber. The electoral college also elects a vice-president who comes from a community other than that to which the president belongs.
The president is only the official head of the executive. Except in the cases expressly provided for by the Constitution, the President exercises his powers on the advice of the Council of Ministers which is communicated to him by the Prime Minister. The Council of Ministers is responsible for the direction and control of the Government of the Republic. The Cabinet of Ministers is collectively responsible and accountable to Parliament.
The President appoints, as Prime Minister, the Member of Parliament who, in the opinion of the President, is most likely to gain the confidence of Parliament. However, the President does not have the power to remove the Prime Minister.
The Prime Minister, appointed at the end of a general election, is deemed to have resigned if a vote of confidence is not pronounced in him during the first session of the new legislature. A Prime Minister appointed at the end of the first sitting of a legislature is deemed to have resigned if a vote of confidence in him is not voted by Parliament within seven days of his appointment. The Prime Minister is also deemed to have resigned if a motion of no confidence in the government is passed, the budget is rejected in Parliament, or the Government Policy Statement is rejected in Parliament.
Secretaries of ministries and heads of departments are appointed by the National Civil Service Commission in consultation with the competent minister.
Constitutional Council
Fri. Sobitha Thera strongly supported the Constitutional Council process and the independent commissions. The NMSJ proposed that the Constitutional Council, abolished by the 20th Amendment, be re-established with powers at least equivalent to those of the 19th Amendment. Apart from the Prime Minister, the President and the Leader of the Opposition, the members of the Constitutional Council are not members of Parliament.
The Commission on the Right to Information is added to the list of commissions whose appointments could only be made on a proposal from the Constitutional Council. The National Audit Commission and the National Procurement Commission, abolished by the 20th Amendment, will be re-established. An agency responsible for assisting and advising public sector institutions in procurement matters is established by law. It is not necessary to have a permanent Boundary Commission. However, any commission, commission or person responsible for the delimitation in legislative, provincial or local elections is appointed on the proposal of the Constitutional Council.
The members of any regulatory authority, established in the field of electronic or other media, data protection, cybersecurity, public utility, monetary and financial services, competition in trade and foreign trade, are appointed on proposal. of the Constitutional Council.
The governor of the Central Bank is added to the list of officials whose appointment must be approved by the Constitutional Council.
Devolution
The decentralization introduced by the 13th Amendment is now maintained, and even the current government, which came to power on a nationalist platform, is extremely unlikely to abolish provincial councils. If this is the reality, it would be better if the Provincial Councils were duly empowered. Decentralization should not be seen only as a solution to Sri Lanka’s ethnic conflict, but also as an instrument for developing the periphery. Unfortunately, successive governments have used every conceivable provision, literally speaking, every comma, or period, in the Constitution, to thwart decentralization.
The NMSJ therefore proposed that there be a maximum possible devolution, on the basis of the principle of subsidiarity; that is, anything that could be managed more effectively by the lowest level should be vested in that level. Local government should be recognized as a level of government. The distribution of subjects and functions between the three levels of government is guided by the principle of subsidiarity. This attribution should be clear and unambiguous and should not be overruled or infringed upon, except by constitutional amendment.
The province is the main unit of devolution. The mandate of a Provincial Council is five years. Elections to all provincial councils take place on the same day. Appropriate constitutional arrangements must be made to ensure the regular holding of elections 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, budget or policy statement, is rejected by the provincial council and a newly formed administration does not get a vote of confidence within 14 days, the Provincial Council The Council will be dissolved and the Governor will be in charge of the provincial administration until an election is organized for the constitution of the Council as well as elections for the other Provincial Councils.
Parliamentary legislation on matters appearing on the Provincial Council’s list will not result in the Center taking over the administration of these matters. In formulating national policy on the issues contained in the list of provincial councils, the central government will adopt a participatory process with the provincial councils. The Constitution provides for the circumstances in which the Center can prescribe national policy.
National policy, declared by the central executive, will not prevail over statutes promulgated by a provincial council with respect to matters on the provincial list. However, if central legislation is enacted to give effect to this national policy in accordance with the constitutional provisions relating to the promulgation of laws on devolved matters, the relevant provincial laws should be read subject to that national law. The approval of the second chamber would be necessary for such legislation. The development of a national policy on the Provincial List would not have the effect of conferring on the Center executive or administrative powers with regard to the implementation of said devolved power; the Provinces will retain the executive or administrative powers in relation to said vested power.
The Parliament can, by law, provide for the implementation of functions on subjects selected from the list reserved by the provinces. Parliament or provincial councils may, by law / statute, provide that the implementation of specified functions falling within their competence be exercised by local authorities.
Regarding the provincial executive, the NMSJ proposes that the governor of a province should not have been politically active during the three-year period, immediately before his appointment, and not be involved in politics during the period of his mandate.
The chief secretary of a province is appointed by the National Civil Service Commission with the consent of the chief minister. Secretaries of provincial ministries and heads of departments are appointed by the Provincial Civil Service Commission in consultation with the relevant provincial minister.
The appointment, promotion, transfer, dismissal and disciplinary control of provincial civil servants are carried out by an independent Provincial Civil Service Commission (PPSC) established for each province. Members of the PPSC are appointed by the Governor on the joint proposal of the Chief Minister and the Leader of the Opposition of the relevant Provincial Council. In the absence of agreement between the Prime Minister and the leader of the opposition, the Constitutional Council makes the appointments after consultation with the Prime Minister and the leader of the opposition.
There will be a Conference of Prime Ministers, comprising the Prime Minister and the Prime Ministers of all Provinces, which will meet at regular intervals to discuss matters of common interest and to promote interprovincial and Center-Province cooperation. The Prime Minister chairs the Conference of Chief Ministers.
Community councils:
Constitutional provisions must be made to ensure that at various levels of government and in different geographic areas the rights of communities which are minorities in those areas are protected.
(To be continued.)
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