Special features in updated draft of new

Constitution

UNP, SLFP wait for each others response on whether executive presidency
should be retained
Three options for election of PM direct elections, pre-nomination or
Westminster model
Compromise policy proposed on land and police powers, but JHU opposes
it
JO wants unitary state provision maintained, but minority parties seek
United Sri Lanka provision
By Our Political Editor-Sunday, June 11, 2017

An updated draft of a new Constitution has incorporated several new features but
a cloud of uncertainty hangs over how soon political parties would be able to
reach any consensus.

Main among them are the two principal partners in the Government the Sri
Lanka Freedom Party (SLFP) and the United National Party (UNP). Each seems to
be waiting for the other to make its position known. The draft, in the form of an
interim report, was originally formulated in November last year and updated only
in May this year by the Steering Committee of the Constitutional Assembly.

The very first discussion on the provisions of this draft last month ended abruptly
after heated exchanges. It was over the existing provision in the Constitution that
The Republic of Sri Lanka is a unitary state. The Joint Opposition (led by
Dinesh Gunawardena) insisted that this provision be retained. So did the Jathika
Hela Urumaya (JHU) headed by Minister Patali Champika Ranawaka.

They also sought another amendment in addition. That was to include the
following provision: Any amendment or repeal and replacement of the
Constitution shall only be made by Parliament and the People, in the manner
provided for in the Constitution.
However, four other parties the Sri Lanka Muslim Congress (led by Minister
Rauff Hakeem), Tamil Progressive Alliance (a grouping of plantation sector
political parties headed by Minister Mano Ganesan), the All Ceylon Makkal Katchi
(led by Minister Rishad Bathiuddin) and the Eelam People Democratic Party (led
by Douglas Devananda) are proposing an amendment. They want the provision
changed to Sri Lanka shall be known as United Republic of Sri Lanka. In Sinhala
that would be Sri Lanka Eksath Janarajaya and in Tamil Aikkaya Elankai
Kudiyarasu. The word unitary, some of these party members say, would run
counter to new provisions on devolution.

The return of Prime Minister Ranil Wickremesinghe is now awaited to fix a new
date for another meeting of the Steering Committee which he chairs. There
onwards, a clause by clause discussion is expected on nine different areas the
introductory chapters of the present constitution including nature of State,
Sovereignty and Religion, Principles of Devolution including land, Central
Legislation on Provincial List Subjects, the Capital Territory, Second Chamber,
Electoral System, the Executive, Constitutional Council and Law & Order. Since the
document is still in draft form, changes and amendments are to be expected.

Yet, some of the key features in the draft on which the political parties will
deliberate are of significant interest. The draft notes that there was general
consensus that the Executive Presidency be abolished and adds that the
President should be elected by Parliament for a fixed term of office. Some
questions do arise over how the draft has recorded that there was general
consensus. This is particularly in the case of the SLFP.
As far back as January 3 this year, 14 SLFP ministers resolved during a meeting
with President Maithripala Sirisena that the Executive Presidency should be
retained. They were unanimous that Sirisena should be the partys candidate at
the 2020 presidential election. The proposal was made by Duminda Dissanayake,
who is General Secretary of the SLFP. Their thinking on the matter was on the
premise that the party should not seek changes to any provision in the existing
Constitution that would eventually necessitate a national referendum. This was
reported in these columns on January 15. Thereafter, in fact, members of the
SLFPs subcommittee on the new Constitution met representatives of the All
Ceylon Buddhist Congress leaders to brief them on their partys position as
revealed in these columns on January 22.
However, the SLFP subcommittee chairman and Minister Nimal Siripala de Silva
told the inconclusive meeting of the Steering Committee last month that his party
would present a comprehensive document. That would be their response to
provisions in the new draft. There does not appear to be a marked policy shift in
their earlier position of not seeking a referendum on provisions that require one.
We will examine all the clauses and make a final decision on our position. We
will then have to ask our Central Committee to approve it, an SLFP minister said.
Either way, in the absence of a highly unlikely electoral arrangement between the
SLFP and the UNP, it could see a three-cornered contest by the key players one
from the Opposition, one from the SLFP and another from the UNP. The UNP is at
the early planning stages for a campaign for its candidate, Premier
Wickremesinghe.
A newer feature in the draft is different proposals when it comes to picking the
Prime Minister. The options to be discussed are: (a) Direct election of the Prime
Minister. (b) Pre-nomination of the Prime Minister, and (c)
Westminister system (which is currently followed). The draft says, The Steering
Committee was generally in favour of a selection of a system of election based on
pre-nomination of candidates for PM. For this purpose, (1) any political party
may nominate a candidate for election as the Prime Minister; (2) A political party
may nominate the nominee of any other political party or group; (3) A political
party may choose not to nominate a candidate for Prime Minister. Provision is
made in the draft for each person nominated by a political party for election to
the First Chamber of Parliament, whether as a local electorate MP or under the
PR (proportional representation) list, is deemed to pre-commit their support for
the person nominated by that political party as Prime Ministerial candidate. Also
eligible are independent candidates standing for election in a single member
electorate or as members of an independent group under PR rule may also pre-
commit support for a candidate for PM.

At the end of the poll and the declaration of results, the Election Commission will
determine whether or not a candidate for PM has received pre-commitments
from a majority of all elected MPs. The candidate receiving the majority of pre-
commitments will be declared elected as PM. If the Election Commission
determines that no candidate for PM has received a majority of pre-commitments
from elected MPs, the PM will be elected at a Special Session of Parliament where
the sole business will be the election of the PM. This system will also apply if the
Westminister model is adopted.

The PM and Government, according to provisions of the draft, whether elected

at the general election, or elected by the House after an inconclusive general
election, shall not be removed from office during the first two years of its term
except (a) by a vote in the House passed by not less than two thirds of the
members express it has no confidence in the Government or (2) the Government
is unable to secure passage of the Annual Appropriations (Budget) Bill after three
attempts. In such instances the Parliament is to stand dissolved when Parliament
passes them.

The draft notes that the Steering Committee accepted the proposals that the
Province be the primary unit of devolution. It adds that the Constitution (by way
of a Schedule) should identify the geographical area/districts included within each
Province, as well as the geographical area of Capital Territory. It notes that
provisions relating to possible merger of Provinces require further consideration
by the Steering Committee and points out that the TNA (Tamil National
Alliance) has suggested that the Constitution recognise the Northern and Eastern
Provinces, as a single Province. However, a paper submitted by JO leader
Dinesh Gunawardena states that there should be no amalgamation of Provinces.
On the other hand, the draft says, the Jathika Hela Urumaya (JHU) had proposed
that decentralisation of power should take place on a district-based system.

The Steering Committee has recommended the inclusion of a clause or clauses as

safeguards against secession. It has stated that The Constitution should
specifically state that the Sri Lankan State is undivided and indivisible. It should
specify that No Provincial Council or other authority may declare any part of the
territory of Sri Lanka to be a separate State or advocate or take steps towards the
secession of Province or part thereof, from Sri Lanka.
Noting that the TNA has suggested that the Constitution recognize the Northern
and Eastern Province as a single Province, the draft has said that the existing
provisions of the Constitution relating to the possibility of two or more Provinces
forming a single unit, should be retained, with the additional requirement that a
referendum of the people of each of the provinces concerned should also be
required.

All State land, in terms of the draft, will be vested in the Republic. A Provincial
Administration may negotiate with the Central Government for the release of any
State land to be used for the purposes of any subject or function in the Provincial
List. Where a Provincial Council does not comply with such requirement, the
President shall refer the matter for arbitration to a tribunal consisting of a
member appointed by the Prime Minister, a member appointed by the Chief
Minister and a Chairman appointed by the members who are named. A decision
of such tribunal shall be binding on the Centre and the Provincial Council, and,
subject to the right of the Government and the Provincial Council to appeal to the
Constitutional Court against such decision. No other court or tribunal shall have
the power of jurisdiction to inquire into, pronounce upon, or in any manner call
into question, such decision.

The draft report says that there was general consensus that a second chamber
should be established, which is largely representative of the Provinces. It has
suggested that the Second Chamber should consist of 55 members, 45 drawn
from the Provincial Councils) (each nominating five Members of such PC on the
basis of a Single Transferable vote) and ten Members elected by Parliament on
the basis of a Single Transferable Vote. Such ten members, the draft says,
should be persons of eminence and integrity who have distinguished themselves
in public or professional life.

The second chamber, the draft notes, shall not have the power to veto ordinary
legislation back to Parliament for reconsideration. After Bills are placed on the
Order Paper of Parliament, they shall be referred to the Second Chamber to
obtain its views, if any, prior to the Second Reading. No Constitutional
Amendment shall be enacted into law unless passed by both Parliament and the
Second Chamber with special two thirds majorities.
A new electoral system has been a hotly debated subject, with smaller political
parties like the SLMC and the Janatha Vimukthi Peramuna (JVP) raising objections
to previous proposals and the current one. The draft now proposes a Mixed
Member Proportional (MMP) system, which seeks to ensure proportionality of
the end result (allocation of seats), while also having directly elected constituency
seats. A specified number of bonus seats, the draft says, shall be allocated to the
party that obtains the largest number of seats nationwide.

A total of 233 seats are distributed, 140 (or 60 percent) on the basis of First Past
the Post (FPP) and 93 (40 percent) as compensatory seats required to ensure
that the final result reflects proportionality. A specified number of extra seats,
the draft says, shall be allocated to the Northern Province for a specified period of
time, to compensate disparities caused to displacement of persons. The First-
Past-the-Post seats are to be filled from Single-member Constituencies (SMCs)
and Dual Member Seats (DMCs). Each voter has two votes, both in a single sheet.
One vote shall be for the SMC (or MMC) candidate and the other vote for the
party.
With regard to law and order, the draft says that it should be exercised by the
Central Government and the Provinces as provided for in the Constitution. This
is through (1) Sri Lanka National Police, and (2) Sri Lanka Provincial Police. The
draft says, The nature, type and quantity of firearms, ammunition, explosives,
armaments and other equipment for all Provincial Police Services shall be
determined by the National Police Commission after consulting the Provincial
Police Commissions. However, the JHU has taken up the position that Law and
Order should a subject reserved to the Centre.

Perhaps for the first time, provision has been made in the draft to debar the
Minister in charge of the subject of Law and Order from issuing case specific
instructions relating to the conduct of criminal investigation or prosecutions. The
Provincial Police Commission, according to the draft, shall be responsible for the
recruitment, promotion, transfer, disciplinary control and dismissal of offices of
the Provincial Police below the rank of Assistant Superintendent. The Provincial
Police Commission shall consider the need to ensure due representation.

The Steering Committee has recommended that the Centre should be permitted
to prescribe, by way of framework legislation, uniformity with regard to the
constitution, election, form, structure and powers of Local Authorities. However,
it has made clear it should be within the powers of the Provincial Councils.

Lottery win for Ravi

Foreign Minister Ravi Karunanayake has been assigned both the National
Lotteries Board and the Development Lotteries Board by President
Maithripala Sirisena.
A Gazette notification published on Friday adds these two institutions to
three others which are already under the Foreign Ministry. They are Sri
Lanka diplomatic missions abroad, the Lakshman Kadirgamar Institute for
International Relations and Strategic Studies and the National Oceanic
Affairs Committee Secretariat.
The two institutions were among those sought by Karunanayake when he
gave up his finance portfolio to become Foreign Minister on May 22. That
ended speculation in the past 19 days on whether or not Sirisena would
give him the additional subjects that were sought. This is the first time that
the two lottery institutions are coming under the Foreign Ministry.
Different functions, which were earlier not listed under the Foreign
Ministry, have also been included. They are:
Administration and professional capacity development of personnel
attached to Sri Lanka Foreign Service and overseas diplomatic missions.
 Make a study of geo-political tendencies and advise the Government on
strategies to be adopted in the management of such tendencies in a
manner beneficial to the interest of Sri Lanka.
Initiate necessary action in relation to the welfare of Sri Lankans resident in
foreign countries.
Consolidate foreign relations required for the protection of territorial
integrity and maritime rights of Sri Lanka.
Liaise with the international community including the United Nations
organisation on the mechanisms towards resolving the national question.
Assist and coordination of the economic activities to achieve the objectives
with regard to the national policies.
Development Assignment Minister Tilak Marapone, a new portfolio, has
been assigned the Department of Project Management and Monitoring,
the Employees Trust Fund and the Academy of Financial Studies (Miloda).
The duties and functions assigned to him are:
Coordination, direction, monitoring and evaluation of projects at national
and provincial levels.
Coordination with other relevant ministries to ensure effective
implementation of development projects/programmes.
Liaison with the Cabinet Committee on Economic Management on
development projects.
Assisting the Minister of National Policies & Economic Affairs in monitoring
and evaluation of national policies.
Other ministers who were sworn in last month have the same subjects that
were assigned to the previous Minister.
In the case of Managala Samaraweera, Minister of Finance and Mass
Media, the subjects which were earlier assigned to two different ministries
have now been merged.
Posted by Thavam