By P.K.Balachandran/Daily Express
Colombo, January 14: Political consensus is likely to elude Sri Lanka’s draft constitution, given three factors currently at play.
The first factor is the hostility of President Maithripala Sirisena and the Leader of the Opposition Mahinda Rajapaksa to the draft, though only the latter has come out publicly against it so far.
Both Sirisena and Rajapaksa want the Executive Presidency to continue, if not made stronger. But the draft constitution wants the abolition of the Executive Presidency in favor of the Westminster system with the Prime Minister at the helm.
On the matter of Executive Presidency, Sirisena and Rajapaksa speak from experience. While Rajapaksa had derived the fullest benefit from the Executive Presidency in his nine years in power, Sirisena is beginning to savor it and enjoy it. He is asking for more.
Both also want powers devolved to the provinces to be kept to the minimum with a watered-down 13 th.Amendment being the outer limit for devolution of power.
The draft constitution envisages devolution of power over State Land and the separation of provincial police from the national police. But Rajapaksa has dubbed this scheme a blue print for the dismemberment of Sri Lanka. “It will divide the country into nine semi-independent units” he has charged.
The second factor militating against the emergence of a consensus is the indeterminate stance of Prime Minister Ranil Wickremesinghe. He is non-committal and dodgy, indicating that his final decision will be based on political expediency.
The third factor is that Sri Lanka is now in the threshold of multiple elections, provincial, Presidential and parliamentary. In that context, it is highly unlikely that the ruling party, which is currently the United National Party (UNP) headed by Ranil Wickremesinghe, will push for any controversial measure like a new constitution which envisages sweeping changes in the State structure and in the distribution of power between the Center and the provinces.
Abolition of Executive Presidency
The Constitutional Expert Committee’s report, which was tabled in parliament on Friday abolishes the powerful Executive Presidency and replaces it by a Westminster style parliamentary system with a powerful Prime Minister and a ceremonial President.
As per the report, which can be described as the “draft constitution”, the President will cease to be directly elected by the people and will instead be jointly elected by a bi-cameral legislature comprising a 233 member “Parliament” and a 55 member “Second Chamber”. The President will be elected by a majority of the whole membership of the two Houses.
This will make a huge difference to the moral authority of the President. Presently, the President enjoys an enormous sense of power because he is the only occupant of a high Sri Lankan office who is elected directly by the entire voting population of Sri Lanka. Others come through smaller constituencies (and also through parliament as in the case of the Prime Minister).
Thus, a directly elected President can legitimately claim that he is the quintessential repository of Sri Lanka’s sovereignty. An indirectly elected President can make no such claims.
Under the new draft constitution, the President loses his power to choose the Prime Minister and his Council of Ministers. He has to appoint as Prime Minister, not anyone who he imagines may have majority support in parliament, but one who indubitably enjoys it. The President will have to appoint ministers only on the Prime Minister’s advice. He will lose the power to allocate departments to ministries without the Prime Minister’s assent.
Unlike now, the President will not be Head of Government, take Ministerial portfolios, and chair the cabinet. He will only be Head of State and the Commander-in-Chief of the armed forces. But every action of his as C-in-C, will be subject to the advice of the PM.
The President will lose the right to dissolve parliament on his own volition. Parliament can be dissolved before its five year term only when the House itself passes a resolution seeking dissolution with a two third majority of its entire membership.
The Prime Minister and his Council of Ministers cannot be dismissed at will. The PM and cabinet will go only when they lose the confidence of the House in a Vote of No Confidence or when the annual budget gets defeated in the third attempt in the first two years, and in two attempts after two years.
The President will cease to have discretion over the grant of pardon. This function will be exercised by the Prime Minister and a judicial committee and the President will only be rubber stamping the decisions.
The President can be removed for mental and physical disability by a committee comprising the Speaker, the Prime Minister and the Leader of Opposition. He can be removed also by a parliamentary resolution backed by a two thirds majority in both the Houses.
After election, the President is expected to sever all links with any political party and function in a non-partisan manner. This is a major departure from the present constitution under which the President can be chairman of his party.
To meet the demand for provincial autonomy, the new constitution vests power over State Land in both the central and the provincial governments with the condition that land use is carried out as per the rules of the National Land Commission. But the commission’s policies should be shaped in consultation with all provincial councils.
The provinces will also have their own police forces headed by officers of the rank of Deputy Inspector General. There will be separate National and Provincial Police Commissions to make appointments, transfers and promotions at the national and at the provincial levels.
The new constitution introduces a Second Chamber to the national legislature. The lower and larger chamber called “parliament” will have 233 members elected for a five year term. Out of these, 140 will be elected from single-member constituencies and the rest will be elected on a provincial basis.
There will be a Second Chamber of 55 members, for which members will be elected by parliament and the provincial councils. The Second Chamber will be there not to block bills passed by parliament, but to have a second look and give suggestions for improvement. In drafting bills, parliament will be expected to give due consideration to the view expressed by the Second Chamber.
The draft constitution has described Sri Lanka as “Ekiya Rajya” in Sinhala and “Orumittha Nadu” in Tamil which mean a “United Country”. The experts had avoided labeling the constitution as either “unitary” or “federal” given the strong feelings for and against these two concepts.
It has retained the “foremost place” given to Buddhism in the country while guaranteeing freedom to practice other religions.In a departure from other constitutions, it guarantees individual and family privacy and has stated that gender and sexual orientations will not be a bar to public employment.
Prime Minister Wickremesinghe told parliament while tabling the draft constitution, that what has been made available is only a draft. Members have also been given summaries of all the views expressed in the six sub- committees, he pointed out. He appealed to the members to study the drafts and the views expressed and come to a consensus on each and every aspect of the constitution.
(The image at the top shows Ranil Wickremesinghe, Maithripala Sirisena and Mahinda Rajapaksa)