Interim report on constitutional reforms Salient features
By Faizer Shaheid
The Constitutional Assembly (CA) was established on 9 March 2016 with the intention of forming a new Constitution to replace the present and operative 1978 Constitution. The Steering Committee identified 12 different areas, of which six areas were dealt with by sub-committees. The sub-committees focused on the topics of fundamental rights, the judiciary, law and order, public finance, public service and centre-periphery relations. The remaining six areas are dealt in the Interim Report of the Steering Committee dated 21 September, 2017.
Sri Lanka will continue to remain undivided and indivisible, and specific provisions are to be included in the Constitution preventing secession. However, the maximum devolution is to be ensured.
The Interim Report also dealt with a dilemma where the Sangha became agitated over the proposed provision in respect of Buddhism. Therefore, it proposes two alternative formulations. The first formulation is the same provision contained in the present Constitution, while the second guarantees Buddhism as the foremost religion, while also guaranteeing equality, honour and dignity of all religions.
The government will follow a three tier system. The Provincial Council will be the primary unit of devolution and the lowest tier, the Local Government bodies will be governed by the principle of subsidiarity. It means that Local Government bodies shall have power to govern themselves and conduct their duties at their own pace and discretion. The State and Provincial Councils will, however, be able to delegate powers to the Local Government bodies. Community Councils will be established to ensure that minority rights are protected at various levels of government.
It has also been decided that the powers associated with the State and the provinces are to be clear and unambiguous. As such, there will only be a Reserved List and a Provincial List in the Constitution, and the Concurrent List will be abolished. Dictating the national policy and designing framework legislation (Healthcare, education, etc.) will be a role played by the government.
All existing legislation that intrudes Provincial Council powers will continue to remain in force until they are repealed or replaced. If there is any ambiguity in determining if a Provincial Statute conforms to the Constitution, the matter can only be contested in the Constitutional Court. The Governor will thence be a largely ceremonial role and will stop being an agent of the Executive. Further to this, it has also been decided to include express provisions in the Constitution preventing secession at Provincial Council level following the near terrible events that transpired in 1991 when the North-Eastern Provincial Council declared itself to be Tamil Eelam.
Like the Westminster system, there will be a First Chamber and a Second Chamber in Parliament. The Committee recommends a Mixed Member Proportional system of election to the First Chamber of Parliament. It is likely to have 233 members, of which 140 (60 per cent) are to elected from the First-Past-the-Post system and 93 (40 per cent) are to be elected from the Proportional Representation of defeated members. Specific legislation is also to be included to ensure suitable women representation in Parliament.
The Second Chamber is likely to comprise 55 members, of which 45 will be drawn from Provincial Councils.
This means that each of the nine provinces will draw five members. The Members of Parliament will also elect 10 of its members to be in the Second Chamber. Election will be on a single transferable vote. They will not have the power to veto legislation, but they can refer ordinary legislation back to Parliament for reconsideration.
Each voter will have two votes. One such vote will be for a member, and the second vote will be for a party. The Committee recognizes that manipulation is possible, and therefore suggests that Parliament enact rules.
If a Parliamentarian vacates his seat, the Committee recommends several possibilities. If a member who represented a constituency was expelled, then there would be a by-election to replace him. If he dies, the party may nominate another candidate from their list of candidates. If the dead member was from a list, the party will be able to nominate another member from the same list. Expulsion cases will be dealt with by the Supreme Court depending on how the Constitutional Court interprets the provision.
Once elected, Parliament will continue for a period between four years and six months up to five years. However, it can be dissolved if a vote of No-Confidence is passed against the Prime Minister or government after two years of functioning. Furthermore, the provisions in the 19th Amendment regarding the Constitutional Council are to be continued.
The Committee has recommended the abolition of executive presidency. It is also recommended that the President should be elected for a fixed term in Parliament, and will be conferred with a certain few powers including some powers relating to Provincial Councils.
In the case of the Prime Minister, the Committee recommended three options. Either the Prime Minister be directly elected by the people, or that the Prime Minister be prenominated, or to follow the Westminster System. Therefore, each party is likely to introduce their Prime Ministerial candidates prior to the elections.
In the event of imminent danger, or a need to maintain public order or a natural disaster, the President can, on the advice of the Prime Minister, declare a state of emergency. The Governor of a Province, on the advice of a Chief Minister, may advise the Prime Minister if a state of emergency has arisen. The declaration will be subject to Parliamentary approval, and once a proclamation has been issued, it is subject to judicial review.
The Steering Committee Report is vastly similar to the draft report that was leaked a few months ago. We will have to wait for the debates in Parliament to fully comprehend what would emerge from the Steering Committee Report. It also remains to be seen if the people will vote in favour of a new Constitution at a referendum, and if they do, then how long the government will need to complete the delimitation process.
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