COMPLEXITIES OF THE DRAFT CONSTITUTION

BY RAVI LADDUWAHETTY

We, the people, are the rightful masters of both the Congress and the Courts., not to overthrow the Constitution, but to overthrow the men who pervert the Constitution. Don’t interfere with anything in the Constitution. That must be maintained. That is the only safeguard of our liberties.

- 16TH UNITED STATES PRESIDENT ABRAHAM LINCOLN

The three-day debate on the proposed Draft Constitution which begins in Parliament today and will go on till Wednesday.

Some of the contentious issues which will take the centre stage will be the Presidency and its form that will be made to prevail from now on, the most contentious merger of the North and the East, the Electoral Reform Process and the Second Chamber and others whether to either continue with the Executive Presidency, or to have a further diluted version or not have it at all, and making the President a ceremonial one, akin to former and the first non-Executive President William Gopallawa, whose public presence was virtually limited to appear merely on Independence Day 4 February.

DIVIDED OPINION ON PRESIDENCY

There are the divided opinions on this. For instance, there is a school of thought that the SLFP from which the ruling and incumbent President Maithripala Sirisena comes, wants to retain it. The SLFP also wants President Sirisena to contest the Presidency again, despite the powers of that office have been diluted with the 19th Amendment to the Constitution. With the new (Draft) Constitution also proposing that the President should also not hold any other portfolio, there is also a school of thought that the President , whoever holds that office, should retain the portfolio of Defence and also remain as the Commander-in-Chief of the Armed Forces.

Funnily enough and quite paradoxically, the UNP, which ushered in the Executive Presidency, now wants it abolished. Possibly, the thinking within the portals of Siri Kotha, might be that it would be more effective to have Ranil Wickremesinghe as Prime Minister, now that the additional decision-making powers have been vested with the Prime Minister with the 19th Amendment to the Constitution and also given that Wickremesinghe lost the race for the Presidency on two successive occasions, to former President Chandrika Bandaranaike Kumaratunga in 1999 and to former President Mahinda Rajapaksa in 2005, irrespective of the riders in the two events in Sri Lanka’s contemporary political history!

On the other hand, the SLFP would want to retain the Presidency itself as at least as of now, they know that incumbent President Maithripala Sirisena is with them and they want to cling onto him as he is their power base.

However, despite the UNP also promising to share power with the SLFP, it is they who are dominating the Government. They will want to abolish the Presidency and get President Sirisena out of the political equation!

The UNP has already accomplished the first mission of its strategy. That’s to disband the SLFP. Now there is an SLFP faction in the Government and there is another SLFP faction in the Opposition, which is in the form of the Joint Opposition.

So, with the SLFP vote base and the Party structure split, it will be virtually a one-horse race for the UNP, barring the Podu Jana Peramuna offering stiff resistance. Only time will answer that question.

N-E MERGER

There are also the dangerous emerging trends of the new Constitution and that is the possible re-merger of the North and the East.

It also does not even talk of a merger whereas the legal and the Constitutional standpoint is that the two Provinces are already de-merged, thanks to the JVP getting the two Provinces de-merged in 2006 with the aid of the Supreme Court ruling.

The new Constitution will also empower the Provincial Councils with the powers for lawmaking as well. As the present Constitution has it, Provincial Councils have the powers to form their laws but, they should be secondary to the Parliamentary Laws which are Primary. That will also mean that the Provincial Legislation should be Secondary to the Parliamentary Legislation and the latter has the powers to veto the former. There are the requisite checks and balances as of now.

But now, as things stand, the danger is that all the Provincial Councils will have individual lawmaking powers which are secondary only to the Constitution and not secondary to the Parliamentary Laws and powers.

That would also mean that regardless of whether these Provincial Laws conform to Parliamentary Laws or not, the Provincial Legislation would stand.

With all these powers, the Executive Powers, Legal Powers the Police and Land Powers the TNA will be getting what they were crying for and demanding all this time, CONFEDERALISM! We saw the experience in Catalonia and unless we look sharp, there could be a repeat performance here as well. So, we have to be sharp not to ensure a process that will enable the TNA and the Northern Parties to secede. Or else, there will have to be another programme to counter that at a future date. Giving this amount of federalism to these extremists is not healthy at all.

The other aspects of the Reforms will be to elect a President from Parliament and also to have political parties to define at the campaigning stage who the Prime Ministerial candidate would be. That will be similar to the Indian model that Prime Minister Narendra Modi had in his election campaign. The new system of First-Past-the-Post system would also be good where there will be far less room for corruption and would give the ruling party, whatever that would be, a comfortable working majority without landslides or hung Parliaments as we have seen before.

SECOND CHAMBER

One of the new proposals in the Constitution is also the re-introduction of the Second Chamber which will have veto powers. This will also be a waste of expenditure on the negative side with 15 members each from Parliament and another 15 from the Provincial Councils.

On the contrary, on the positive side will be the veto powers the Second Chamber would have in the event of contentious legislation that would be dished out in the House of Parliament.
The writer could be contacted at ravi.ladduwahetty@ceylontoday.lk

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