Observations of the Communist Party of Sri Lanka on the Discussion Paper titled “Main proposals to form the basis of a future constitution”
Given below are the observations of the CPSL including its formulation of the proposals that should be considered for presentation to the All Party Conference (APC):
The proposals of the APRC should be confined to the mandate given to it by the APC According to the speech of His Excellency Mahinda Rajapakse, the President made to the APC on July 11th, 2006, which was endorsed by the political parties present the function of the APRC and its Experts Committee is to formulate a political and constitutional framework for the resolution of the national question.
In presenting the position of the CPSL both reports of the Experts Committee (Reports of Groups A and B) and the individual comments of two of its members were taken into consideration.
Nature of the state and sovereignty of the people
Constitutional provisions on the nature of the state and the sovereignty of the people should be based broadly on the principles laid down in Articles 1 and 2 of the Bill to repeal and replace the present constitution presented to parliament on August 3rd, 2000. (a photocopy of the relevant page is annexed hereto).
There should be a parliament elected nationally and a second chamber representative of the members of all the Provincial Councils.
The electoral system should be based on a an electoral system in which the principle of proportional representation predominates (modeled on the German electoral system) to enable all ethnic and religious communities as well as the plurality of political opinion being represented proportionately according to the will of the people.
Power should be devolved to Councils based on the province as the territorial unit of devolution.
Two or more of such Councils (Provincial Councils) may merge together upon the expression of the will of the people at referenda held in each of the relevant provinces;
provided however, that transitional arrangements may be made to accommodate any political agreements entered into by the government on the merger of any two or more councils.
Devolution of Power
The following powers among others that may be deemed necessary for the national unity, national security and wellbeing of the people should be reserved to the Centre:
Defence, national security, national police, immigration and emigration, citizenship, foreign affairs, international economic relations, regulation of banking and financial institutions, levy of customs duties, airports, port and harbours (excluding those used by citizens for fisheries), railways, civil aviation, inter-provincial highways, roads and transportation, national archives and museums, archeological sites and historical monuments of a national nature, reserved and conservation forests and national flora and fauna parks.
Provincial Councils should have power over all other subjects including maintenance of law and order with the support of a provincial police and state land in the provinces save subjects that may be assigned to the local authorities;
provided however, that when the central government reasonably requires land for carrying out any work relating to the reserved subjects the provincial councils should make lands available for the purpose.
The local authorities may be given certain powers over local education and health services limited to their lowest tier and social and community services of a local nature. Gam Sabhas comprising 2 to 3 villages and Ward Sabhas in urban areas may be established to present proposals for the provision of public utility services, infrastructural development of their localities and for supervision of public works in their areas.
The Provincial Judiciary should comprise the Primary and Magistrate’s Courts, the District Courts, High Courts and a Provincial Court of Appeal. The Provincial Court of Appeal should be empowered to hear appeals from the subordinate courts of the province and have jurisdiction over the issue of writs and over violations of fundamental rights that relate to the relevant province.
The Supreme Court of the Republic should be vested with the power to hear appeals from the Provincial Counts of Appeal and jurisdiction over the issue of writs and over violations of fundamental rights that relate to the central government and its institutions.
There should be a Constitutional Court comprising judges drawn from among members of the higher judiciary, senior members of the legal profession and academics who are versed in constitutional law. The Constitutional Court should be empowered to determine the constitutionality of parliamentary bills and statutes of Provincial Councils, administrative acts of the central government and provincial administrations and regulations enacted in the event of an emergency.
Safeguarding territorial integrity, the unity of the state and its people
The central government should be empowered to take preventive measures to deal with any threat to the integrity of the country, to impose emergency rule over any province or part thereof in the event of a threat of a rebellion or breakdown in the maintenance of law and order in a province and to assist any provincial council faced with such a situation. These powers may be comparable with the relevant provisions in the constitution of the Union of India.
Allocation of central government grants to the Provincial Councils
A Finance Commission should be established for the purpose of determining the quantum of grants to the different Provincial Councils. Guidelines should be laid down in regard to equitable distribution of funds at its disposal to the provinces whilst ensuring balanced development of the provinces.
Resolution of disputes between the Centre and the Provinces
A National Council comprising the Prime Minister and Chief Ministers of State should be established (a) to resolve disputes that may arise between the Centre and the provinces or between provinces and (b) to decide on national policies and national standards.
January 18, 2007.