A powerless Parliament and all powerful PCs

New draft constitution - Part 2

By C.A.Chandraprema-July 30, 2018,

(Continued from last Wednesday)

We pointed out last week that in terms of the Government’s proposed draft constitution, prepared by a panel of experts for the Steering Committee of the Constitutional Assembly, the executive presidency is to be abolished and the Prime Minister is to be the head of the government and the Cabinet. The President will be obliged to carry out his duties on the advice of the Prime Minister except in instances where discretion is expressly vested in the President. One of the instances when discretion is vested in the President is of course in appointing the Prime Minister. The proposed draft constitution says that the President shall appoint as Prime Minister the Member of Parliament, who in his opinion ‘enjoys the confidence of Parliament’. However, this discretion ceases to operate when a political party has obtained more than 50% of the total number of seats in Parliament, and where such party had nominated its Prime Ministerial candidate at the time of tendering of nominations. In such instances, the President is obliged appoint such person as Prime Minister without the requirement of an election by Parliament.

When Parliament meets for the first time after a general election, immediately after the election of the Speaker, Deputy Speaker and Deputy Chairman of Committees, a resolution of confidence in the Member appointed as Prime Minister shall be moved. If the vote of confidence is not passed by a majority in Parliament, the Member already appointed Prime Minister, shall cease to hold office, and Parliament shall elect one of its Members to be Prime Minister. The election of the Prime Minister by Parliament shall be on the exhaustive ballot system where if one candidate does not get an overall majority, the candidates with the lowest number of votes is eliminated from the race and a further round of voting takes place until somebody gets an overall majority. The Prime Minister will be vested with the power to appoint and remove cabinet ministers, state ministers and deputy ministers according to his will.

The total number of Cabinet Ministers is to be limited to 30; and non- Cabinet Ministers and Deputy Ministers limited to a further 30. Where Parliament passes a motion of no-confidence against the Government, by a simple majority of the whole number of Members of Parliament (including those, not present) the Cabinet of Ministers shall stand dissolved, and a new Prime Minister and Cabinet of Ministers appointed. The Secretary to the Cabinet, Secretary to the Prime Minister and the Secretaries of all Ministries will be appointed by the Prime Minister.

Limiting powers of ‘Central Legislature’

Parliament is referred to in the draft constitution as the ‘Central Legislature’ which gives one a fair picture of the general trend in these constitutional proposals. This ‘Central Legislature’ is to comprise of the Parliament and the Second Chamber. Parliament shall consist of 233 Members and its term is to be five years. The President may dissolve Parliament if Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour. In the first two years of the Parliament, if the Government is unable to secure the passage of an appropriation Bill after three attempts, the President shall dissolve Parliament. After the first two years, if the government is unable to secure the passage of an appropriation Bill after two attempts, the President shall dissolve Parliament. A proclamation dissolving Parliament will also fix the date for a general election and summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.

The Second Chamber shall consist of 55 members 10 members of who are appointed by Parliament and the remaining 45 as five each by the nine provinces. The Second Chamber shall exercise oversight and other functions as may be provided by the Constitution, by law, or by the Standing Orders of Parliament. Every Bill shall he published in the Gazette at least 14 days before it is placed on the Order Paper of Parliament. Upon a Bill being tabled in Parliament, such Bill shall be referred to the Second Chamber, and placed on the Order Paper of the Second Chamber, at its next sitting. The Second Chamber shall consider such Bill, and shall return it to Parliament within one month specifying areas where reconsideration is necessary. The draft constitution states that "Prior to enacting the Bill into law, Parliament shall give due consideration to the views of the Second Chamber". However the term ‘due consideration’ has not been defined.

The Central Legislature has exclusive power to make laws, including laws having retrospective effect, with respect to any of the matters enumerated in the National List. However, when enacting laws on subjects coming under the provincial list, each and every Provincial Council will have to agree to the enactment of such a law. If all Provincial Councils are not in agreement then such laws can be passed only with a two-thirds majority in both houses of Parliament plus a referendum. Under Article 154G(3)(b) of the present Constitution, Parliament can make any law applicable to the subjects on the Provincial Councils list with just a two-thirds majority. However the new constitution seeks to make this virtually impossible by placing three major hurdles in the way of Parliament when legislating on subjects coming under the provincial councils list. Such a law will firstly need a two-thirds majority in Parliament, then a two-thirds majority in the Second Chamber and then approval by the people at a referendum.

Even in the event that the central authorities do manage to get a law relating to a matter on the provincial councils list passed in this tortuous manner, the provincial councils will still be able to pass statutes on the same matter and the statute passed by a provincial council (with a simple majority) will always override the central authority law passed with two-thirds majorities in both houses of Parliament as well as a referendum! Thus what the new constitution seeks to do is to create a federal state in Sri Lanka with the ‘central legislature’ virtually powerless to make laws on subjects coming under the provincial councils. It is in this context that the shift in this draft constitution from administrative districts to provinces becomes all the more relevant. The province is to become the basic unit of reckoning even when electing MPs to parliament.

What is envisaged are virtually independent provincial units tied to the centre with the flimsiest of bonds that can be shaken off at will. When it comes to the concurrent list, Parliament can make laws on matters coming under the concurrent list only after such consultation with all Provincial Councils. The word ‘consultation’ has not been defined but given the tenor of the draft constitution the word undoubtedly means ‘agreement’. If even one PC does not agree, the power of Parliament to make any law on a subject coming under the concurrent list will be called into question. What this does is effect is to transfer all powers on the concurrent list to the PCs. Under Article 154G(5)(a) of the present Constitution, Parliament may make laws with respect to any matter set out in the Concurrent List after such consultation with all Provincial Councils ‘as Parliament may consider appropriate’ in the circumstances of each case. Note the phrase ‘as Parliament may consider appropriate’ which confers the authority on Parliament. Moreover, under Article 154G(6) of the present Constitution, if any provision of a statute made by a Provincial Council is inconsistent with the law made by Parliament, the provisions of the provincial statute will be void.

Judicial review of legislation

The limitation of the powers of the central legislature under the proposed draft constitution becomes even more evident when it comes to its power to determine national policies. The proposed draft constitution states that the Cabinet may formulate national policy on a subject in the provincial list only if such matter cannot be effectively dealt with by the legislation of an individual province, or the maintenance of legal or economic unity, especially the maintenance of equivalent living conditions beyond the territory of a Province necessitates it. In formulating national policy on any matter in the provincial list, the Cabinet has to adopt a participatory process with the Provincial Boards of Ministers. Even after the formulation of national policy by Cabinet on a matter in the provincial list, the respective Provinces shall continue to exercise the relevant executive or administrative powers in respect thereof. The formulation of national policy will override statutes enacted by a Provincial Council in respect of matters in the Provincial List only if the law is passed with a two-thirds majority in both houses of Parliament plus a referendum.

Parliament may by law prescribe national standards, where minimum standards are necessary to ensure the enjoyment by citizens of a reasonable minimum standard of living throughout the country; and the minimum standard of state service delivery throughout the country; or a reasonable minimum standard of environmental protection throughout the country. The power to prescribe national standards will not deprive the respective Provinces of their legislative and executive competence. The central government may also prescribe national standards by way of regulations under authority of law. However, such regulations shall not be valid unless approved by both Houses of Parliament. Furthermore, the substantive and procedural validity of such regulations may be challenged in the Constitutional Court.

Under the present Constitution, no court of law can inquire into an Act passed by Parliament. But under the proposed draft constitution, the Constitutional Court is to have the power of judicial review and they can strike down a law passed by Parliament or any of the provincial legislatures. This will be a major new development the implications of which are hard to foresee. The Constitutional Court will however not be able to call into question a Constitutional Amendment once it is passed. As in the present Constitution, the proposed draft constitution also provides that if the Cabinet has certified that any Bill is intended to be submitted for approval by the People at a Referendum, in addition to obtaining a two thirds majority in both houses of Parliament, it shall not be necessary to refer such Bill to the Constitutional Court. The new features that are to be introduced with regard to the legislature through this proposed draft Constitution will be as follows.

=A bicameral legislature instead of a unicameral legislature as at present.

=Severe restrictions on the law making powers of the central legislature and the solidifying of the powers of the provincial councils.

=Severe restrictions on the central executive and central legislature in formulating national policies and standards.

=Judicial review of all legislation except for constitutional amendments.

(To be continued)