D.B.S.Jeyaraj
The United Peoples Freedom Alliance(UPFA) Government of President Mahinda Rajapaksa is planning to reduce the terms of office of the Executive President and Chief Justice as well as restricting the powers of Provincial Councils.
It is learnt that the Govt is currently engaged in drafting the required amendments to the present Constitution.
Although the Govt is keen to make all Constitutional changes through a single Amendment with multiple clauses there may be two separate amendments if necessary depending upon legal advice.
According to current thinking in top Govt circles the President’s term of office is to be reduced from six years to five.This would also enable the incumbent President to seek new elections after being in office for three instead of four years.There will be no restrictions on the number of terms a Person could hold if elected.
The Govt also intends restricting the term of office held by a Chief Justice to five years. Presently a chief justice is eligible to hold office for any number of years until reaching the age of sixty-five.
More importantly the Govt also intends to bring about far reaching changes to the existing power structure of the Provincial Councils set up under the 13th Amendment to the Constitution brought about by the India-Sri Lanka accord of July 29th 2013. The proposed new amendment would change or curtail certain provisions of the 13th amendment in the same way that the 18th Amendment affected the earlier 17th amendment.
An important change to be effected in this regard relates to Police powers.Though Police powers have already been devolved to a certain extent by the 13th Amendment none of the elected Provincial Councils have been able to exercise those powers as the Police Commission Act, No. 1 of 1990 providing for the establishment of a National Police Commission and a Provincial Police Commission for each province has still not been brought into operation by successive past Governments.
The Rajapaksa Govt now intends to take back most of the Police powers ,duties and functions allocated to the Provincial Councils except for a few minor spheres like Traffic and community policing.
Another area where the power and scope of the Provincial council is to be curbed relates to land and land alienation. At present, Provincial Councils have specific powers over State land. Under paragraph 1:3 of Appendix II of the Thirteenth Amendment, alienation or disposition of State land within a Province to any citizen or to any organisation shall be by the President but only on the advice of the relevant Provincial Council.
Now the Rajapaksa regime wants to do away with these provisions and bring all aspects concerning lands totally under the Central Govt and/or President thus eliminating any link or control of the subject by the Provincial councils.
Apart from Policing and lands the Govt is also examining the question of imposing further restrictions on another six subjects where both the Central and Provincial administrations exercise concurrent powers at present. The Govt is thinking of taking away fully these subjects from within the purview of the Provincial councils.
A crucial change being proposed relates to the requirement of Provincial council approval when Parliament passes laws affecting devolved subjects.Under the 13th Amendment, if a Bill on a subject devolved on Provincial Councils is to be passed by Parliament, the Bill has to be referred to all Provincial Councils for their assent. If all Provincial Councils agree, then the Bill can be passed by a simple majority. However, if one or more Provincial Councils do not agree, then the Bill must be passed by a two-thirds majority if it is to apply to the provinces which did not agree. If passed only by a simple majority, the Bill will be law only in the provinces that have agreed. The new amendment envisages a Bill on a provincial subject becoming applicable to the whole country, if a majority of Provincial Councils agree to the passing of the Bill.
It may be recalled that the aborted talks between the Government and Tamil National Alliance had reached an impasse on certain issues concerning the allocation of powers to Provincial council such as lands,Police etc. It appears that the Govt now wants to resolve these issues unilaterally by enfeebling the Provincial council and empowering the Centre via the new amendment in these areas.In terms of political science, the new amendment would emphasise a centripetal approach as opposed to a centrifugal one.
Likewise the provision of requiring Provincial council approval for legislation relating to devolved subjects is also a safeguard to prevent the centre from downsizing the powers of the periphery in functions allocated.The Eastern Province council had on a few occasions utilized this provision to protect provincial powers being usurped by the Govt.
The proposed change however would do away with this safeguard in practice and furthermore encourage ethnic polarization in the process. The Govt anticipates the 98% Tamil speaking Northern Province and 75% Tamil speaking Eastern Province to be concerned about retaining provincial powers when compared to the Seven Sinhala majority provinces. The calculation seems to be that based on ethnic differences the Sinhala dominated Councils would be permanently opposed to the North and East. Ethnic hostility instead of amity is being indirectly fostered.
The proposed attempt to amend the Constitution has to be viewed against the backdrop of President Rajapaksa’s recent announcement that elections to the Northern Provincial council would be held in September this year. Political analysts speculate that this decision was necessitated by the insistence of India.It is believed that India used its influence to ensure the Commonwealth heads of meeting is held in Sri Lanka as scheduled in November.The Quid pro quo is the holding of Northern provincial elections it is said.
There is however considerable opposition within and outside the Govt to the Provincial councils set up through the 13th amendment. There is also trepidation amidst some that the Northern provincial council may pose long term problems if some provisions are utilized by so called Tamil “extremists” in what they regard as the “wrong”way.
The Govt may be seeing a way out of this predicament by reducing the powers of the Provincial council through a Constitutional amendment A Provincial council stripped of salient powers would not pose a threat seems to be the line of thought.
While this approach of the Govt may prove successful in the short term the long term consequences of the action are indeed a moot point. Whatever the plans of the Govt at present about truncating the Provincial councils it remains to be seen whether these “best laid plans turn awry”or not in the future.
DBS Jeyaraj can be reached at [email protected]
– DBS