The resolution to enact a new Constitution



The ongoing attempt by the current Sri Lankan Government to enlarge devolved powers beyond what exists in India cannot be justified considering the significant strides made by India using identical powers. If India could achieve what it has with its existing powers without additional devolved powers, why not Sri Lanka? One possible explanation for the vigorous attempts by the Sri Lankan Government is that it is doing what it has been directed to do as part of geopolitical and geostrategic interests of the big powers. Indications of such interests were conveyed by the US Under Secretary of State, Thomas Shannon when he stated: "… you (Sri Lanka) can help regional efforts to strengthen economic ties and support maritime security and safety. In the decades ahead, the economic, political and security of the Indian Ocean region will be a central focus of the world. We are hopeful Sri Lanka will continue to contribute to the development of a regional consciousness" whatever it means (Sunday Times, Dec. 20, 2015).


By Neville Ladduwahetty


A resolution to enact a new Constitution has been presented. Paragraph 2 of the Preamble of the Resolution states: "And WHEREAS it has become necessary to enact a new Constitution that inter alia, abolishes the Executive Presidency, ensures a fair and representative Electoral System which eliminates preferential voting, strengthens the democratic rights of all citizens, provides a Constitutional Resolution of the national issue…."


Paragraph 1 of the Text of the Resolution states: "There shall be a Committee of Parliament hereafter referred to as the ‘Constitutional Assembly’ which shall consist of all Members of Parliament, for the purpose of deliberating, and seeking the views and advice of the People, on a new Constitution for Sri Lanka, and preparing a draft of a Constitution Bill for the consideration of Parliament in the exercise of powers under Article 75 of the Constitution" (Ibid).


Paragraphs 2 to 28 of the Resolution outline the details of the process to enact a New Constitution. Although there is no indication of the shape and form of the New Constitution at this point in time, judging from the quoted section of the Preamble it would contain 3 components, namely, the abolition of the Executive Presidency, electoral reforms, and the Constitutional Resolution of the national issue wrapped up into a single package as the New Constitution. An indication of what the New Constitution would be was conveyed during the Sujatha Jayawardene Memorial Oration titled: "Strengthening Democratic Institutions", by Prime Minister, Ranil Wickramasinghe.


CONTOURS of the NEW CONSTITUTION


Possible contours of the New Constitution in respect of devolution conveyed by the Prime Minister were: "The emerging consensus is to work within the structure of the 13th Amendment to the 1977 Constitution – a unitary structure with further devolution of power… The impending task is to identify the additional powers to be devolved to the Provincial Councils. I am of the opinion that subjects and functions once devolved to the Provincial Councils should not revert to the Central Government even when Parliament legislates on national policies in regard to reserved subjects".


Continuing, the PM stated: "The experience of the last 25 years has shown that the future emphasis on devolution should be on the exercise of executive powers by the Provincial ministers. Hitherto, legislation by Provincial Councils has not received much attention because of their lack of capacity to legislate... Here, the Austrian system of devolution with its detailed categorisation of devolved legislative powers will be a useful model. The Parliament will retain the power, as mentioned earlier, to legislate on national policies regarding all subjects. On the other hand, enlarged executive power can be devolved to the Provincial Councils".


It is evident from the foregoing that in the opinion of the PM, devolution in Sri Lanka has failed, and that if devolution is to work it would be necessary for Sri Lanka to follow the Austrian model. If Sri Lanka is to follow the Austrian model Sri Lanka would be a Federal State because Article 2 of the Austrian Constitution states that Austria is a "federal state" composed of 9 autonomous Laender (States or Provinces). Furthermore, the PM’s recommendation to "enlarge" devolution by granting executive power to the Provincial Council is an indication as to where the contours of the New Constitution are heading.


What compels Sri Lanka to explore enlarging devolved powers to Provincial Councils, when the identical powers devolved to India’s States have worked successfully in India? After all, we must not forget that devolution in Sri Lanka is modeled on the Indian system to such an extent that not only is the content and scope identical, even the very language is identical as demonstrated below.


A COMPARISON OF LEGISLATIVE and EXECUTIVE POWERS DEVOLVED to STATES IN INDIA AND SRI LANKA UNDER 13th AMENDMENT.


LEGISLATIVE POWERS of STATES in INDIA -


Indian Constitution:


Article 161: 1. "There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion".


2. "If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution requires to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion".


LEGISLATIVE POWERS of PROVINCES


in SRI LANKA – 13th Amendment:


Article 154F: (1) "There shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advice the Governor of a Province in the exercise of his functions. The Governor shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion".


(2) "If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question in any Court on the ground that he ought or ought not have acted on his discretion. The exercise of the Governor’s discretion shall be on the President’s discretion".


EXECUTIVE POWERS of STATES in INDIA -


Indian Constitution:


Article 153: "The Executive power of state shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution".


Article 155: "The Governor of a State shall be appointed by the President by warrant under his hand and seal".


EXECUTIVE POWERS of PROVINCES in SRI LANKA - 13thAmendment:


Article 154c: "Executive power extending to the matter with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province for which that Provincial Council is established, either directly or through Ministers of the of the Board of Ministers, or through officers subordinate to him, in accordance with Article 154F".


Article 154B: (1) "There shall be a Governor for each Province for which a Provincial Council has been established in accordance with Article 154A".


(2) "The Governor shall be appointed by the President by warrant under his hand, and shall hold office, in accordance with Article 4 (b) during the pleasure of the President".


Thus, the prospect of devolving Executive Power to the Provincial Councils is a major departure that does not exist even in the Indian Constitution.


DEVOLVED POWERS NOT to REVERT


to CENTRAL GOVERNMENT


The PM’s intention that "subjects and functions once devolved to the Provincial Councils should not revert to the Central Government even when Parliament legislates on national policies in regard to reserved subjects" has serious implications. The powers of the Central Government under the 13th Amendment are contained in List II titled "Reserved List".


The opening sentence in the Reserved List reads: "National Policy on all Subjects and Functions". The PM’s proposition that subjects and functions devolved to Provincial Councils NOT revert when Government legislates on National Policy, amounts to making national policies on all subjects and function subordinate to Provincial subjects and functions. Powers devolved to Provincial Councils would then cease to be subordinate laws. This would violate Article 76 (3) of the Constitution.


Commenting on this issue, the late Mr. H.L. de Silva P.C., the last of the Greats stated: "In order to ensure that the national interest was adequately protected he (Mr. G.V.P.Samarasimghe whom he describes as an administrator of great experience) conceived of the blanket formulation which appears at the commencement of the "Reserved List"( Sri Lanka – A Nation in Conflict, P. 125).


A similar blanket provision exists in the last paragraph of Article 1 Section 8 of "The Constitution of the United States". This Article states: "To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United states, or in any Department or Officer thereof". These powers have been used by the US Supreme Court on several occasions to protect its national interests.


The ongoing attempt by the current Sri Lankan Government to enlarge devolved powers beyond what exists in India cannot be justified considering the significant strides made by India using identical powers. If India could achieve what it has with its existing powers without additional devolved powers, why not Sri Lanka?


One possible explanation for the vigorous attempts by the Sri Lankan Government is that it is doing what it has been directed to do as part of geopolitical and geostrategic interests of the big powers. Indications of such interests were conveyed by the US Under Secretary of State, Thomas Shannon when he stated: "… you (Sri Lanka) can help regional efforts to strengthen economic ties and support maritime security and safety. In the decades ahead, the economic, political and security of the Indian Ocean region will be a central focus of the world. We are hopeful Sri Lanka will continue to contribute to the development of a regional consciousness" whatever it means (Sunday Times, Dec. 20, 2015). The suggestion made several years earlier by the current US Ambassador to Sri Lanka, Atul Keshap, that a federal arrangement would be appropriate for Sri Lanka, should be seen as part of a complex geostrategic plan.


To be continued tomorrow..


 


 
 
 
 
 
 
 
 
 
 
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