Statehood without the name, for Provincial Councils

New draft constitution - Part 5

By C. A. Chandraprema-August 9, 2018, 10:24 pm 

(Continued from last Wednesday)

At present, seven of the ten members of the Constitutional Council are Members of Parliament with only three being outsiders. The task of the Constitutional Council is to recommend appointees to important commissions such as the Public Service Commission, Elections Commission, the National Police Commission and to high state positions such as the Attorney General, IGP, Chief Justice etc. The Speaker of Parliament is the ex - officio Chairman of the Constitutional Council. Under the proposed draft constitution, the number in the CC is to go up to 11 with the addition of the Speaker of the second chamber of Parliament. Most significantly, there will be a radical change in the composition of the CC with the number of parliamentarians on it being reduced to four and the number of outsiders to seven. Under the draft constitution the CC is to comprise the following: the Prime Minister; Speaker of Parliament; Leader of the Opposition; the Speaker of the Second Chamber; one person appointed by the President; five persons nominated by both the Prime Minister and the Leader of the Opposition; and one person nominated by agreement among the majority of MPs belonging to political parties that are not the parties to which the Prime Minister or the Leader of the Opposition belongs.

Even though the draft constitution stipulates that the seven non-parliamentarians in the CC are to be persons of ‘eminence and integrity’ who have ‘distinguished themselves’ in public or professional life and who are not members of any political party, it also says that in appointing these five members, the Prime Minister and the Leader of the opposition have to consult the leaders of political parties represented in Parliament so as to ensure that the Constitutional Council reflects the ‘pluralistic character’ and ‘social diversity’ of Sri Lankan society. This is essentially a revival of one of the most negative aspects of the old 17th Amendment where the nominees appointed by the PM and the Opposition leader were actually stooges and cronies of the various political parties in Parliament. It is quite clear that the five members elected by the PM and the Opposition leader and the person appointed by the President and the person appointed by the smaller political parties in Parliament will all be political party nominees with the last one being appointed in rotation among themselves by the smaller parties.

Despite the negative experience that we had with this arrangement under the old 17th Amendment, the drafters of the new constitution have irrationally included this again in the new draft constitution as well. If the theory is that the people’s representatives elected to Parliament cannot be trusted to make proper appointments to the independent commissions and high state positions, how is the appointment of various hangers on of political parties to do the same job going to improve the situation? It is quite clear that this fixation with appointing non-parliamentarians to the Constitutional Council is due to an inability get over a certain frame of mind - however plain the evidence that such schemes will not work.

Changes in the Provincial Councils system

One of the most contentious aspects of the proposed draft constitution will be the provision made for two or three adjoining Provinces to form one administrative unit with one elected Provincial Council, one Governor, one Chief Minister and one Board of Ministers. Such an arrangement is to be subject to a referendum in each of the Provinces concerned. This is a carry forward from the 1980s when the separatist lobby wanted the Northern and Eastern Provinces merged. At that time too, the merger was to take place on the basis of a referendum in the Eastern Province. Given the ethnic composition of the Eastern Province the possibility of the merger being approved at a referendum was remote even in the 1980s. Today, without the LTTE to terrorise voters and stuff ballot boxes, it’s an impossibility. Yet the drafters of the proposed new constitution continue to pay pooja to this ideological shibboleth of the Tamil separatist lobby. This also reveals the driving force behind the constitution making process.

Probably due to the realization that the merger is a dream that will never be fulfilled, the drafters of the new constitution have added Section 190 which goes as follows: "Two or more Provincial Councils may co-operate with each other in implementing their executive functions." No one knows what that sentence means and how two or more PCs can cooperate with one another in the manner envisaged. The proposals in the draft constitution taken as a whole, seek to confer virtual statehood on the provinces, going far beyond the status of the Indian states. In India, on whose model our provincial councils system is based, the President appoints the State Governors and they hold office during the pleasure of the President. There is no provision for states to be able to remove a Governor under any circumstances. In Sri Lanka, under Article 154B(1) of the present Constitution, if it is proven that the Governor has intentionally violated the Constitution or is guilty of misconduct, corruption, abuse of power, bribery or moral turpitude, the Provincial Council may pass a resolution with a two thirds majority calling for the removal of the Governor.

The proposed draft constitution seeks to take this to a radical new level by enabling a Provincial Council to simply dismiss a Governor at will, by passing a resolution with a two thirds majority upon which the President will have to remove the Governor from office.

Enabling a province to remove a Governor at will in that manner vitiates the very purpose for which Governors are appointed to the provinces. The proposed draft constitution in fact expressly seeks to achieve that end by stipulating that the executive power of the Province shall be exercised by the Chief Minister and the Board of Ministers. In contrast to this, the Indian Constitution clearly states that the executive power of the State shall be vested in the Governor.

There is also a clause in the proposed draft constitution which states that the exercise of power by the Governor shall be on the advice of the Chief Minister and the Board of Ministers. When the power of the Governor is vitiated in this manner, the hold of the centre on the periphery ceases to exist and this obviously is one of the main objectives of the proposed draft constitution.

Under Article 154H of our present Constitution, when statutes passed by the Provincial Councils are presented to the Governor for his assent, he can either assent to the statute or return it to the Provincial Council for reconsideration. If the statue is passed again by the PC with or without amendments, and sent to the Governor, he can either assent to it or reserve it for reference by the President to the Supreme Court. If the Supreme Court determines that the statute is consistent with the Constitution, the Governor is mandatorily required to assent the statute. In Sri Lanka even under the present Constitution, we see that the President is just a post box through which statutes passed by the PCs are sent to the Supreme Court.In India however, the President has much wider powers with regard to the statutes passed by the states. Under Articles 200 and 201 of the Indian constitution, when a Bill passed by a state legislature is presented to the Governor, he can either assent to it or refer it to the President. The Indian President, can if he so wishes, simply withhold assent without having to explain his decision to anybody.

It should be noted that in India, granting or not granting assent to statutes is purely an affair of the executive with the judiciary having no role in it. Thus we see that even under the present Constitution, we are in a much weaker position than the Indian President and Governors when it comes to discretion in granting assent to legislation passed by the provinces. What the proposed draft constitution seeks to do is to remove even the limited power that the centre has over statutes passed by the provinces. Under the draft constitution, even the post box role that the President has under the present Constitution has been eliminated and only the Governor (who is to be constitutionally subordinated to the Chief Minister) will have anything to do with the statutes passed by the PCs. When a Statute enacted by a Provincial Council is referred to the Governor for assent, he can either assent to it or return it to the provincial council for re-consideration within a period of fourteen days.

If the Governor fails to assent to or return it for re-consideration within that two week period, the Statute shall be deemed to have been assented to. If the Governor returns the Statute for reconsideration, and the Provincial Council enacts the statute, with or without amendments, the Governor shall assent to same within fourteen days of the Statute being referred to him again, or he shall refer the Statute (directly, without having to go through the President as at present) to the Constitutional Court for consideration of its constitutionality. If the Governor has failed to assent to the statute or refer it to the Constitutional Court, the Statute shall be deemed to have been assented to at the end of fourteen days. Thus even the limited powers the Sri Lankan centre had over statutes passed by the Provinces is to be eliminated.

Imprimatur of the Chief Minister under the proposed draft constitution, the Governor of a Province shall have the power to grant pardon to any person convicted of an offence under a Statute made by the Provincial Council of that Province or a law made by Parliament on a matter in respect of which the Provincial Council has power to make Statutes. This should be looked at in the context of the envisaged transfer of all substantive police powers to the provinces so that most offences except a few stipulated ones like international crimes and fraud involving currency will be allocated to the centre. If all other offences come under the purview of the province and the Governor becomes a creature of the Chief Minister as is envisaged in the draft constitution, it follows that the Chief Minister of the province will in effect be exercising the power of pardon over virtually all crimes. According to Article 161 Of the Indian Constitution too, the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter coming under the state government.

However the way this differs from what has been proposed in the draft constitution is that in Sri Lanka, the Governor is to be turned into a subordinate of the Chief Minister whereas in India, the Governor is the representative of the very powerful Indian President and when an Indian Governor acts, it’s on the imprimatur of the centre. However under the proposed draft constitution in Sri Lanka, the Governor will be granting pardons under the imprimatur of the Provincial Chief Minister. The result of such an arrangement in the North and East, and indeed in the rest of the country as well, given the kind of Chief Ministers we have, can only be imagined.

Under the proposed Constitution the number of Ministers in the provinces other than the Chief Minister is to be increased from four at present to six. The Provincial Councils are also to be accorded a privilege not available to the Parliament. The Provincial Councils will be able to dissolve themselves, if more than one-half of the Members of the Provincial Council (including those not present) resolve that the Provincial Council be dissolved. However Parliament cannot dissolve itself without a two thirds majority under the present 19th Amendment and also the provisions of the proposed draft constitution. Clearly the drafters of the new constitution seem to feel that democracy is more important at the provincial level than at the national level. Why else would there be a difference in the manner provincial and national legislative bodies dissolve themselves? A new feature in the draft constitution is the proposal to carve out a ‘Capital Territory’ from the Western Province which will function independently of the Western Provincial administration.

(To be continued)