DO WE NEED A
NEW CONSTITUTION TO SRI LANKA
 |
| Dr. D. Tennakoon |
1. QUESTIONS
This article was
written in “Singhala Language” and was published in website” www.neocosmosvision.simplesite.com since may, 1016. My argument was,
if we are composing an new Constitution, its objectives, principles, “Model” of
government system, structures and the main features should be pre
designed. Secondly, the system of power
devolution, its structures and main features are to be prepared as a “Model of
Power Devolution. Thirdly, we have to
have concrete assurance of the support of two thirds of MPs in the Parliament
to proceed with this venture. We should
not left any loop-points to set back.
It is true, that since
long time, the suggestions by many civil societies, people’s organizations,
politicians and scholars for reducing the executive powers of the President, or
changing the system towards to establish parliamentary executive government
system. A new venture came in to scene
in 1915 and 1916, by eminent politicians to make change in structures of ‘Power
Devolution”. Amidst all these, the idea
of changing the existing Constitution, and composing of a new Constitution is
being implemented. I suppose, in this
regard of an idea of new Constitution,
we need to find answers to number of questions:
1. Do we have a set of theoretical information, a pre-prepared ‘Model’ of
the system of government, its structures, and main features, and new systems we
are going to adopt in power devolution in Legislative, Executive, and Judiciary
systems?
2. If answer is “yes”, have we referred all these issues in detail, i.e, the
Model of the Government, structures, and main features, for information to the civil organizations,
people’s associations, scholars’ unions/associations and to MPs for their prior
agreement to proceed with this with next steps? (Because, we need two third of
MPs agreement to pass this. Since one
political party has no two third power in the Parliament, we have to be
careful).
3. If answer is “Yes”, it looks good, we can proceed with it all next
steps; If answer is “No”, another
question arises; do you think we can keep hope and assurance on “would it be
fruitful or not fruitful”?.
4. If answer is “fruitful” , there is a fairly reason to proceed with
it. But, you have to keep all
responsibilities to get it done. If
answer is “seems to be not fruitful”, it not rational to proceed with it and waste inputs both human
and financial.
THE MOST IMPORTANT THING IS, IF WE
BECOME UNSUCCESSFUL IN THIS ENDEAVOUR, PEOPLE REALIZE IT AS A FAILURE OF
GOVERNMENT. IT APPEAR AS A SET BACK OF
MAJOR POLITICAL PARTIES, SPECIALLY PEOPLE CONCEIVE IT AS FAILURE OF UNP
PARTY. IT IS NOT RATIONAL AND IT IS
UNFARE TO PUT UNP IN TO A TRAP.
2. SUGGESTIONS
I WOULD LIKE TO SUGGEST
TWO PROPOSALS:
1. IT IS TIMELY AND ACCEPTABLE TO AMEND ARTICLE 43 OF THE 1978 CONSTITUTION
TO ENFORCE PROVISIONS TO SHARE THE EXECUTIVE POWER BETWEEN THE PRESIDENT AND
THE BABINET OF MINISTERS, LIKE-WISE INDIAN CONSTITUTION WAS AMENDED IN 1976,
AND 1978 GIVING CONSTITUTIONAL POWER TO ADVICE PRESIDENT TO EXERCISE HIS
EXECUTIVE POWERS. BUT SOME POWERS, SUCH
AS DEFENCE, ENVIRONMENT, PEACE AND LAW AND ORDER SHOULD BE VESTED IN PRESIDENT.
Indian constitution was amended as and Thus,
Article 74(1) was substituted by the Constitution (42 Amendment ) Act, 1976,
as: “(1) There shall be a Council of Ministers with the Prime Minister at
the head to aid and advise the President who shall , in the exercise of his
functions, act in accordance with such advice”. Again in 1978, Article 74(1) by 44th
Amendment Act, adding proviso which president chance to refer the advice of
Council of Ministers back for a reconsiderations, but when the Council of
Ministers reaffirm their advice , the president should be obliged to act
according to that advice. It reads: “…
Provided that President may require the Council of Ministers to reconsider that
advice, either generally or otherwise, and the President shall act in
accordance with the advice tendered after such reconsideration” (44th
amendment, 1978).
2. IT IS TIMELY AND RATINAL, ACCEPTABLE TO MAKE AMENDMENTS TO 1978
CONSTITUTION TO CHANGE PARLIAMENTARY ELECTION SYSTEM.
Now we have discussed
the matter of reducing power of Executive Presidential System. The second most important issue is the
improvements to power devolution.
3.POWER DEVOLUTION
In this regard, the
matter of power devolution, the most important two questions are to be raised:
(1) Do you have developed a certain
“Model” of power devolution, and how far you expect to go ahead with these
reforms, and how far it make a difference compared with the existing
Constitutional provisions?
(2) If answer is ‘No” you have to
think about new start.
(3) If answer is “Yes”, do you have referred all these new structures,
features, the models to parliamentarians, scholars’ associations, civil
societies, people’s associations for their perusal (specially to MPs because
they are the key persons in realizing the dreams)?
(4) If answer is “No”, you have to restart from that point.
(5) If answer is “Yes”, do you have
assurance to get two third majority of votes in the parliament”,?
(6) If answer is ‘yes”, it is fairly recommended to proceed with it.
(7) If answer is ‘No”, please abandon the idea. Because, it should not be good to stop it in
the parliament.
If we going to proceed with this, it will be a challenge to Honorable President
to get two third of majority agreement in the Parliament. We know we have established and “Coalition Government” with partnership of
few political party representatives, and they bear different thoughts,
opinions, principles according to their party politics.
WE HAVE DECENTRALIZED
CENTRAL POWER PROVINCIAL BASIS, BUT THE PARLIAMENT HAS POWERS TO MAKE ACTS ON THE
“PROVINCIAL COUNCIL SUBJECTS” WITH THE TWO THIRD MAJORITY IN THE PARLIAMENT, THE
PARLIAMENT HAS POWERS TO ENACT ACTS TO THE SUBJECTS IN THE “PARALLEL SUBJECTS” LIST GIVEN IN LIST III IN
THE 9TH ANNEXTURE, WITH SIMPLE MAJORITY IN THE Parliament.(SEE CHAPER
VII ‘a’, Article”154 g’, sub Article
(5) (a), and (10), of 1978 Constitution,
13th Amendment). These
subjects are; i. development planning, progress control, etc., ii. Private
investments and development, iii. housing and construction, iv. Agriculture,
aligned industries, agrarian services, agri. Education, v. irrigation,
construction, rural development, land development, health, vi. Fisheries
industry, vii. Animal husbandry, viii. Employment generating projects, xi.
Tourism, x. electricity, xi. Environment, and the like.
WE SHOULD KEEP IN MIND CENTRAL
PARLIAMENT HAS POWERS TO ENACT LEGAL PROVISIONS FOR CENTRAL ADMINISTRATION TO
INITIATE ACCELERATING OF INDUSTRY, AGRICULTURE, AND OTHE ANY INDUSTRIES.
According to the Indian
Constitution, there was no provision included for President perform his powers
and duties with the advice of cabinet of Ministers. In 1960, a more debatable question was raised
by then President Dr. Rajendra Prasad that
whether the Constitution obliges the President to act only on the advice
of the Council of Ministers, on every matter.
He raised this question while he was delivering a lecture/speech at the
ceremony of the India Law Institute on November, 28th 1960. In this speech he urged for a study of the
exercise of executive powers, and the relationship between the President and
the Council of Ministers. He raised; “There
is no provision in the Constitution which in so many words lays down that the president shall be
bound to act in accordance with the advice of his Council of Ministers”.
The scholars in India
pointed out that the stand held by Dr. Rajendra Prasad in 1949 in the
Constituent Assembly, as he had summed up this state “ Although there is no
specific provision in the Constitution itself making it binding on the
President to accept advice of his ministers, it is hoped that the convention
under which in England the King always acted on the advice of his ministers
would be established in this country also and the president would become a constitutional
President in all matters”
The Politicians and
scholars reviewing different provisions of the Constitution argued that the
President under Constitution is not a “figure-head”, he was only a constitutional head like
English Crown. The case went to the
Supreme Court, and the Court relying on the interpretation of the words ”aid
and advise” in the Dominion Constitution Acts, declared, “ Under Article 53(1) of our Constitution the
executive power of the Union is vested in the President. But under article 74 there is to be a Council
of Ministers with the prime Minister at the Head to aid and advice the
President in exercise of his functions.
The President has thus been made a formal or constitutional head of the
executive and the real executive powers are vested in the Ministers or the
Cabinet”.
The Indian Government
took actions to solve this political controversy, by amending the
Constitution. Thus, Article 74(1) was
substituted by the Constitution (42 Amendment ) Act, 1976, as: “(1) There shall
be a Council of Ministers with the Prime Minister at the head to aid and advise
the President who shall , in the exercise of his functions, act in accordance
with such advice”. Again in 1978,
Article 74(1) by 44th Amendment Act, adding proviso which president
chance to refer the advice of Council of Ministers back for a reconsiderations,
but when the Council of Ministers reaffirm their advice , the president should
be obliged to act according to that advice.
It reads: “… Provided that President may require the Council of
Ministers to reconsider that advice, either generally or otherwise, and the
President shall act in accordance with the advice tendered after such
reconsideration” (44th amendment, 1978).
Dialogue
Between Ms. Maggiya and Mr. Maharala
Maggiya: O oh; Maharale, isn’t it true, that leagues
and gangs those who fired Lanka, demonstrated ‘harthal’, burned public
properties, protested and made loud voice against to Provincial Council Bill in
1987, were in wrong stand against your draft bill of proposals for transferring
powers to Central Parliament/Central Executive.
Maharala: O ho; ye, Maggiyo; Now we are in a season of turmoil. All they opposed to my proposals;
Have you heard this poem?
“Eat and Eat creates fond of
tasty,
Fond of tasty inspires with the
eagerness,
Eagerness intrigues with the
affection,
Affection misleads the direction
of the right path”
Maggiya: Is it correct?
Maharala: Can’t you
see?, where were you?
Maggiya:
Oh; Yeh.
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