Vitharana report jettisons unitary state

Large number of Experts Committee proposals adopted
N-E merger to be decided at peace talks

Unit of devolution to be the province

The much awaited ‘confidential’ report of Science and Technology Minister Tissa Vitharana to the All Party Representatives Committee (APRC) on Monday has jettisoned the unitary state concept and proposed the state to be ‘The Republic of Sri Lanka’ and to be described in the constitution as ‘one free, sovereign and independent state.’

The report was presented to the APRC by Chairman Tissa Vitharana under ‘confidential’ cover as a discussion paper for the committee titled ‘Main Proposals To Form The Basis Of A Future Constitution.’

The report has adopted a very large part of the Majority Report of the Experts Committee with practically the identical wording used in describing the unit of devolution and the nature of the state.

The present constitution states in Article 2 that the Republic of Sri Lanka is a unitary state but the Vitharana proposals have adopted the wording in the majority report of the Experts Committee. The JVP boycotted Monday’s meeting in opposition to the Experts Committee majority report being considered as part of the discussion.

The report identifies subjects that should be devolved to the provinces including the police and subjects to be with the centre and a concurrent list.

The report also contemplates peace talks with the LTTE to determine the fate of the north-east merger.

“The state shall be obliged to safeguard the independence, sovereignty, unity and territorial integrity of the Republic to preserve and advance a Sri Lankan identity, recognising the multi-lingual, multi-religious and multi-cultural character of the Sri Lankan society,” the report states.

The report further states the people of Sri Lanka shall be described in the constitution as being composed of ‘the Sinhala, Sri Lankan Tamil, Moor, Indian Tamil and other constituent peoples of Sri Lanka’ with the right of every constituent to develop their own language, to develop and promote its own culture and the right to its due share of state power inter alia.

The report further proposes a parliamentary form of government with the president to act on the advice of the prime minister and the cabinet of ministers.

The prime minister, according to the proposal, will be directly elected by the people simultaneously with a general election and the transfer of executive power to parliament to take place at the end of the current term of the President.

What the proposal effectively tantamounts to is the abolition of the executive presidency at the end of the present term of President Mahinda Rajapakse as pledged in the Mahinda Chinthana.

The proposals also call for safeguards against secession.

On the question of the unit of devolution, it is proposed that as far as practicable it should consist of geographically contiguous territory, be conducive to balanced regional development and be designed to enhance administrative efficiency.

On the question of the north and east merger, the Vitharana report states it be kept open for discussion at the peace talks.

• Executive presidency abolished at the
end of Mahinda’s first term

• Executive prime minister to be elected

• Sri Lanka to be “one, free, sovereign
and independent state”

• Province, the unit of devolution

• Safeguards against secession

• A senate to be elected by provincial legislatures

• Two vice presidents from different communities

• President to be subject to judicial and
parliamentary control

• A Constitutional Court outside the Supreme Court

• The state to advance a Sri Lankan identity

Following are excerpts of the Tissa Vitharana report to the APRC:

Main Proposals to form the basis of a future constitution

1. State, Sovereignty, People

1.1. The name of the State to be “The Republic of Sri Lanka.”

1.2 Following from the above, the State shall therefore be described in the Constitution as “one, free, sovereign and independent State.” The State will consist of “institutions of the Centre and of the Provinces which shall exercise power in the manner provided for in the Constitution”.

1.3 The State shall be obliged to safeguard the independence, sovereignty, unity and territorial integrity of the Republic and to preserve and advance a Sri Lankan identity, recognising the multi-lingual, multi-religious and multi-cultural character of the Sri Lankan society.

1.4 The people of Sri Lanka shall be described in the Constitution as being composed of “the Sinhala, Sri Lankan Tamil, Moor, Indian Tamil and other constituent peoples of Sri Lanka.” The right of every constituent people to develop its own language, to develop and promote its culture and to preserve its history and the right to its due share of State power including the right to due representation in institutions of government shall be recognised without in any way weakening the common Sri Lankan identity. This shall not in any way be construed as authorising or encouraging any action which would dismember of impair, totally or in part, the territorial integrity or political unity of the Republic.

2. Form of Government

2.1 It is recommended that Sri Lanka should adopt a Parliamentary form of government at the Centre.

2.2 The executive powers of the Centre shall be exercised through the President who shall act on the advice of the Prime Minister and the Cabinet of Ministers. The Prime Minister shall be directly elected by the people at an election held simultaneously with the general election.

2.3 The transfer of executive powers to Parliament shall take place at the end of the current term of office of the President. In the interim period the President shall be deemed to be a Member of Parliament and shall be responsible and answerable to Parliament regarding the exercise of executive power. Necessary transitional provisions to this effect shall be provided.

2.4 In this document reference to the President, denote the President during the interim period and thereafter the President acting on the advice of the Prime Minister and the Cabinet of Ministers.

3. The Electoral System

This shall conform with the recommendations of the Select Committee on Electoral Reforms that are accepted by Parliament.

4. Supremacy of the Constitution, Constitutional Court

4.1 The supremacy of the Constitution shall be recognised. All actions of the Centre and of the Provinces inconsistent with the Constitution shall be void.

4.2 The holder of the office of President should have personal immunity for any executive action taken by him as long as he holds office. However, all executive actions of the President should be subject to judicial review.

4.3 A separate Constitutional Court is necessary but it should be within the existing court structure but not as part of the Supreme Court. Only those with specialised knowledge in constitutional matters should be appointed to it, but they can be from within the judicial service or outside. Appointments to the Constitutional Court shall be made by the President on the recommendation of the Higher Appointments Commission. The Constitutional Court shall reflect the pluralistic of Sri Lanka.

4.4 The Constitutional Court shall have the power to strike down Central and Provincial legislation which is violative of the Constitution, notwithstanding the fact that such legislation has been duly certified according to the Constitution. All existing law (other than the respective personal laws) shall be read subject to the Constitution.

4.5 Where a question of the interpretation of the Constitution or inconsistency of a law, provincial statute or an emergency regulation with the provisions of the Constitution, or the constitutionality of an act of the President, arises in any proceedings in any court or tribunal, such question could be referred by such court or tribunal to the proposed Constitutional Court.

4.6 Appointments to the Constitutional Court should not fall within the age limitation placed upon Supreme Court appointees.

5. Safeguards against secession

5.1 There should be in-built mechanisms to discourage secessionist tendencies and to preserve the unity, sovereignty and territorial integrity of the State.

5.2 A Provincial Legislature of Provincial Government shall not, by direct or indirect means, promote or otherwise advocate or attempt to promote or otherwise advocate an initiative towards the separation or secession of any Province or part thereof, from the Republic.

5.3 Emergency power for the Centre to intervene in the Provinces in the event of a “clear and present” danger to the unity, territorial integrity and sovereignty of the State and in cases where the Provincial authorities request the intervention of the Centre, shall be clearly spelt out in the Constitution. Accordingly, the Constitution should provide for the following:

5.3 (a) A declaration of an emergency in a Province, where the President is of opinion that the security or public order of the Province is threatened by armed insurrection, grave internal disturbances or by any act or omission of the Provincial government which presents a clear and present danger to the unity, territorial integrity and sovereignty of the Republic. This would empower the President to deploy armed forces or the national police to restore public order and to make regulations in respect of subjects in the National List or in respect of law and order.

5.3 (b) There may be instances where the Provincial authorities feel the need to obtain the assistance of the Centre to deal with a situation of emergency in that Province. In such circumstances a declaration of emergency in a Province would be done by the President upon being advised by the Governor, consequent to advice given to him by the Chief Minister. This would empower the President to authorise officials of the Centre to exercise powers in respect of subjects in the Provincial List, and, for the President to make regulations with respect to any matter in the Provincial List as may be specified by the Governor acting on the advice of the Chief Minister.

5.3 (c) Where the President is of opinion that a situation has arisen in which a Provincial Legislature Government is promoting an armed rebellion or insurrection, or is engaging the international violation of specified provisions of the Constitution relating to the unity, sovereignty and territorial integrity of the Republic and that the powers of Provincial authorities presents a clear and present danger to the unity and sovereignty of the Republic, the President would be empowered to assume all or any functions of the Province and in an extreme situation, to dissolve in terms of the Constitution the errant Provincial Legislature. The principles of democracy and equity should be upheld and Constitution held supreme.

4.4 The above act of the President shall be subject to Judicial control and Parliamentary control as well. (In this connection see also 3:5 above)

4.5 The Centre shall protect every Province against external aggression and internal disturbance and ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution.

6. Power sharing

6:1 The Centre

6:1 (a) There shall be a Parliament at the Centre comprising of the House of Representatives elected by the people and the Senate elected by the Provincial legislatures.

6:1 (b) The Cabinet of Ministers at the Centre shall be comprised of members of both House of Parliament, namely the House of Representatives and the Senate, excluding its chairman.

6:1 (c) There shall be two vice presidents elected by Parliament and they shall belong to two different communities distinct to that of the President: the term of office of each of the vice presidents being three years.

6:1 (d) At any given time, one of the vice presidents shall be the chairman (non-voting) of the Senate (Second Chamber) while the other vice president shall be the chairman of the Higher Appointments Commission. Parliament shall decide at the time of election, which of the two vice presidents shall occupy which of these posts. There shall be adequate provincial and community representation in the Higher Appointments Commission.

6:1 (e) The Senate should comprise representatives from the Provinces. (This would enable the Provinces to play a role in the national legislature. It would also act as an in-built mechanism against hasty legislation the may have an adverse effect on the Provinces.

Such a senate is found in almost every country where there is substantial devolution of power. A Senate should be considered a unifying mechanism. It would also function as a mechanism to rectify possible imbalances of representation in the House of Representation. The senate could also facilitate consensus building amongst interest groups).

6.1 (f) The members of the Senate shall be elected by the respective provincial legislatures. The election shall be according to the principle of proportional representation in a way that will facilitate the representation of the different communities and small political parties.

6.1 (g) In determining the size of the Senate there is the need to maintain a fair balance between the Senate and the Parliament. A ratio of 1:3 between the membership of the Senate and that of the House of Representatives is desirable.

6.1 (h) All legislation, with the exception of money bills, can be initiated in the Senate as well.

6.1 (i) The Cabinet of Ministers should, in principle, reflect the pluralistic charter and also be representative of the Provinces of Sri Lanka.

6.1 (j) The APRC may consider the desirability of introducing the Executive Committee System into governance at the Centre. This may facilitate the various communities and political parties to participate in the sharing of power in the centre. This can be done for a limited period.

6.2 The Provinces

6.2 (a) Executive power sharing in the Provincial Board of Ministers on a proportional basis has its benefits particularly in post-conflict situations. However a party can opt out of being in the Board of Ministers if it so wishes. Being mindful that a provincial executive could become a breeding ground for corruption when there is no official opposition, such an arrangement for power sharing could be in place for a limited period, provided that mechanisms are built in to ensure transparency and political pluralism. There is a place for an Executive Committee system in such a set up.

7. Unit of devolution

7.1 The unit of devolution should, as far as practicable, consist of geographically contiguous territory, be conducive to balanced regional development and be designed to enhance administrative efficiency. Differences in endowments are to be expected among units. Taking into consideration the existing circumstances the appropriate unit of devolution would be the province.

7.2 Factors such as ethnicity and language cannot be excluded in all situations and there may have to be exceptions in order to address security and other concerns of communities. Ideally such exceptions should be limited in time and ultimately, ethnicity should not be the main criterion for the establishment of units. This should not, however, preclude special arrangements being put in place to address such concerns.

7.3 Any proposed merger of two or three provinces, other than the north and east, would not pose any problem if done through referenda in accordance with provisions presently available in the 1978 Constitution and the Provincial Councils Act No. 42 of 1987.

7.4 The APRC may consider the feasibility/desirability of reducing the number of provinces outside the north and east, at the commencement of the new Constitution.

7.5 The Tamil political parties have been agitating for a merger of the north and east provinces so as to form a single unit of devolution. The Muslims and the Sinhalese have legitimate concerns about such a move in view of considerations relating to security, cultural and religious rights etc. In view of these competing claims, it is best that the question of unit/s in the north and east be kept open for discussion at the peace talks. It is essential that there should be Muslim representation at such talks.

7.6 Colombo and its environs shall form the Capital Territory which shall be a part of the Western Province. However, law and order in the Capital Territory shall be a matter for the Central Government.

8. Distribution of Powers

8.1 For devolution to be meaningful, it is recommended that the majority of the subjects and functions be categorised as belonging to the National sphere or the Provincial sphere. Provision for a Concurrent List consisting of a minimum of subjects and functions, may be considered, but it is best that the areas of concurrency be as few as possible as a means for minimising tendency for the Centre to over-ride the Provinces.

8.2 The distribution of powers should be explicit and devoid of ambiguity. Parliament shall have no legislative power in respect of subjects and functions in the Provincial List while Provincial Legislatures shall not have legislative powers in respect of subjects and functions in the National List. Where a subject or function not found in any list is ancillary to a subject or function already included in the Provincial List, such subject or function shall be deemed to be an item in the Provincial List. All other subjects and functions not explicitly listed in the three lists shall be deemed to be included in the National List.

8.3 Subjects such as defence, national security, foreign affairs, citizenship, immigration, communication, national transportation, international commerce/trade, maritime zones, harbours, ports and airports (other than fisheries harbours without international transportation) and shipping and navigation which are necessary to ensure the sovereignty, territorial integrity and economic unity of Sri Lanka shall be reserved for the Centre.

8.4 Where national policy or national standards need to be laid down, it should be done through a participatory process with the involvement of the Provinces culminating in framework legislation passed by Parliament. Framework legislation in respect of a devolved subject shall not amount to law applicable on the subject within provinces but Provinces would be required to conform to such framework legislation when passing statutes. The subjects and functions in respect of which national policy or national standards may be laid down should be minimised. Where a Provincial statute or a provision thereof is inconsistent with the framework legislation, such statute or provision may be struck down by the Constitutional Court.

8.5 There shall be three lists of areas which shall contain the subject matters within which Parliament and the Provincial Councils may exercise their respective legislative powers and executive functions.

These are:

8.5. (a) List I – The National List

There shall be a list of subject areas in which Parliament shall have exclusive powers to legislate and exercise and exercise all executive functions pertaining to them.

8.5 (b) List II – The Provincial List

There shall be a list of subject areas in which the Provincial Councils shall have exclusive powers to legislate and exercise all executive functions pertaining to them.

8.5 (c) List III – Concurrent List

8.5 (c) i The subjects and functions in the Concurrent List should be as limited as possible, both in scope and numbers. The Concurrent List shall be divided into two Parts A&B.

8.5 ( c) ii In respect of matters coming under Part A, both Parliament and Provincial Councils shall have legislative power which shall be exercised in consultation with each other. In the event of inconsistency, legislation enacted by parliament shall prevail to the extent of such inconsistency.

8.5 (c) iii Executive powers relating to subjects and functions in Part A will be a matter for Provincial Councils.

8.5 (c.) iv In relation to Part B, both Parliament and Provincial Councils shall have powers as mentioned in Paragraph (2) subject to the difference that the Central Government may assume to itself the execution of legislation as well. Examples of matters that should come under Part B are contagious disease and environment pollution issues.

8.6 There shall also be separate lists of subjects whose implementation shall be a matter for the third tier, the Local Government institutions, and the fourth tier, the Gam Sabhas/Urban Ward Sabhas. [themorningleader.lk]

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