Comments of the Lanka Sama Samaja Party on the APRC  Discussion Paper titled “Main Proposals to Form the Basis of a Future Constitution”

 

 

The Lanka Sama Samaja Party wishes to make the following comments on the discussion paper titled “Main Proposals to Form the Basis of a Future Constitution”.

2.2 President should be elected by Parliament

The LSSP welcomes the proposal that Sri Lanka should adopt a Parliamentary form of government. We propose that the non-executive President should be elected by Parliament.

2.2 and 2.4 President to act on advice of the Prime Minister

The paper proposes that the President shall act on the advice of the Prime Minister. There are instances where the President is required to act on the recommendations of the Higher Appointments Commission such as when appointments are made to the Public Service Commission. Paragraphs 2.2 and 2.4 should be re-worded accordingly.

4.6 Age of retirement of Judges of the Constitutional Court

The LSSP agrees that only persons with specialised knowledge on constitutional matters should be appointed as Judges of the Constitutional Court. In order to attract such specialists, the age of retirement should be higher than those of other Superior Courts. We propose that the age of retirement be fixed at 70 years.

4.7 (proposed) Constitutional Court may refer matters to Court of Appeal for inquiry and report

The Constitutional Court may need to ascertain factual matters in the exercise of its powers. Provision should be made to permit the Court to refer such matters to the Court of Appeal for inquiry and report.

5.4 Judicial control of the use of emergency powers

Provision should be made to permit the Constitutional Court to refer factual matters in issue to the Court of Appeal for inquiry and report.

5.5 Centre to ensure that Provinces work in accordance with the Constitution

While all organs of Government, whether Central or Provincial, should act in accordance with the Constitution, the Centre should not be permitted to “police” provincial authorities. The proposed provision may lead to misuse. If a provincial authority is acting contrary to the Constitution, it is the judiciary that should intervene. The Centre or any citizen should be able to complain to the appropriate court in regard to any unconstitutional action on the part of the provincial authority concerned.

6:1 (j) Power-sharing at the Centre

6:2 (a) Power-sharing in the Provincial Government

7.2 Units of devolution

The discussion paper proposes that certain provisions relating to the above be limited in time.

The LSSP is strongly of the view that provisions of a new Constitution relating to devolution and power-sharing (except transitional provisions) should not be limited in time. All communities need to be assured that no provision of the new Constitution is limited in time and that a provision can only be changed by resort to the ordinary manner of constitutional amendment, i.e. special majority in the Legislature, approval by the People at a Referendum when entrenched provisions are to be amended and approval of Provincial Legislatures in regard to provisions relating to devolution. (See para 20.1)

This does not preclude future constitutional reform. If after some time, it is felt that a constitutional provision needs to be changed, such a change can be effected in accordance with provisions relating to constitutional amendment which have in-built safeguards.

7.5 Unit/s of devolution in the North and East

Reference may also be made to the demands of some Muslim organisations for a fully-fledged Provincial Council comprising all Muslim-majority Divisional Secretary Divisions in the North and East.

8.1 and 8.5 (c) Concurrent List

Given the experiences under the Thirteenth Amendment where the Centre used every conceivable provision (sometimes misinterpreting them) to undermine the Provinces and mindful of the fact that a new Constitution would have to operate in a post-conflict situation, the LSSP is strongly against a Concurrent List. Where the Centre and Provinces need to work together, as in the case of contagious diseases and environment issues, there should be mechanisms for coordination.

8.3 Subjects in the National List

We see no reason why all fishery harbours should not be in the Provincial List. Many fishery harbours offer facilities to local fishing vessels going into international waters and to waters and ports of other States. Fishing vessels from other States may also visit such harbours. The exclusion of fishery harbours with international transportation may result in the Provinces losing many fishery harbours to the Centre.

Concerns of national security, if any, could be met by other appropriate means. It is to be also noted that the guarding of the coast is a matter for the Centre.

9 Judiciary

The LSSP notes that in recent times, sitting Judges have been appointed as members of Commissions of Inquiry, inquiring even into matters having political undertones. In any event, such appointments affect the day-to-day functioning of courts. We are of the view that sitting judges should not be appointed to such Commissions.

10 Fiscal Devolution

The 13th Amendment does not permit Provincial Councils to set up business enterprises as a way of raising revenue (e.g. a bus company). The LSSP is of the view Provincial Councils should be empowered to set up such enterprises in subject areas coming under them.

10.9 Composition of the Finance Commission

The LSSP proposes that one member of the Finance Commission should be nominated by the Chief Ministers’ Conference.

Annexe 1- Tiers of Government

There is no need to recognise Grama Sabha and Urban Ward Sabha as a separate tier of Government as they are part of local government, the third tier of Government.

Higher Appointments Commission

The present Constitutional Council (which will be replaced by the Higher Appointments Commission under the proposal) is not functional. A Select Committee has been appointed to go into this matter and its report is awaited.

The LSSP is of the view that the several shortcomings in the 17th Amendment should be rectified in setting up the Higher Appointments Commission.

Several provisions of the 17th Amendment are ambiguous. There is no provision for the continuity of the Council. Provision should be made that notwithstanding a completion of the term of office of the members of the Council, they should continue until replacements are made. The Speaker should be given the responsibility of ensuring that vacancies are filled on time. It should be made mandatory for the President to make appointments to the Council within 2 weeks of the receipt of recommendations.

The LSSP is of the view that the Higher Appointments Commission should have adequate representation of the Provinces as well.

 

Provision should also be made for the continuity of Commissions appointed on the recommendation of the Constitutional Council. Where the term of office of the members of a Commission is due to end, it should be the responsibility of the Secretary of the Council to begin the process of filling vacancies at least 3 months in advance. If for some reason new members of a Commission are not appointed, present members should continue in office till replacements ate made, it should be made mandatory for the President to make appointments to the Commissions within 2 weeks of the receipt of recommendations.

January 2007.