Opposition Leader Mahinda Rajapaksa has said in a statement on the constitutional reforms, said that the draft constitution seeks to weaken Parliament and immeasurably strengthen the provincial legislatures, and it will compromise the unitary character of the Constitution.
He said if Parliament is to enact a law on a matter on the provincial councils list without the expressed agreement of each and every provincial council, that law would have to be passed with a two thirds majority by Parliament and also approved at a referendum.
Even a law on a provincial council subject passed in this manner can be vitiated by a statute passed by a provincial council with a simple majority (Clause 132 in the draft constitution).
“Such limitations imposed on the legislative power of Parliament is the turning point at which the unitary state becomes a federal state. We are resolutely opposed to such a change.
Parliament can make laws on matters coming under the concurrent list only with the approval of all PCs (Clause 134). Thus, the discretion that Parliament has under the present Constitution to decide whether to consult the PCs or not, is to be done away with.
The legislative power of Parliament is to be further weakened by giving the proposed constitutional court the power to review laws that have been passed by Parliament,” he said.
The statement said,” When the present rulers came into power in 2015, the only constitutional agenda they had was to abolish the executive presidency and to change the system of elections so as to ensure stable parliamentary governments.
The draft constitution does have provisions to abolish the executive presidency, which we will not oppose. However, the new system of elections that has been proposed is another ‘pure proportional representation’ system like the systems that were introduced at the local government and provincial council levels in 2017 with disastrous results.
Even those who voted for that elections system in 2017 now want it scrapped. If the system of elections is to be changed so as to ensure stable governments, what should be introduced is the hybrid 70%-30% ‘first past the post/proportional representation’ system proposed by the Parliamentary Select Committee headed by Dinesh Gunawardene after years of careful study from 2002 to 2007 under both UNP and UPFA governments.
Even though the draft constitution refers to a provincial council list, a concurrent list and a reserved list it has not been stated anywhere whether these lists are the same as those in the present Constitution or not. Although reams of useless information are being tabled in the Constitutional Assembly, some of the most essential information such as the content of these lists, is missing.
The Federalist tilt in the proposed draft becomes obvious when the Governor - the main representative of the central government in the provinces - is placed under the chief minister. The executive power of the province is to be vested in the Chief Minister and not the Governor in complete contradiction to the provisions of the present Constitution (Clause 242).
The police force will be broken up into a national police force and nine separate provincial police forces each with its own police commission. The national police force is to have jurisdiction only over a limited number of specified offences, such as offences against the state, election offences and currency related offences etc.
The provincial police will have effective charge of all day to day police work pertaining to crime, fraud, narcotics, traffic, public order etc. (Clauses 254, 259, and 284).
This country can be destroyed simply by breaking up the police force into 10 separate police forces in the manner proposed. This is why no government in the past 30 years, broke up the police force regardless of the provisions in the 13th Amendment.
Under the new constitutional proposals, the central government will have control over state land used for subjects pertaining to the national list or the concurrent list at the commencement of the Constitution. The provincial councils are to have authority over all other state land within their borders.
If the central government requires state land in a province for any purpose, they may address a request to the provincial administration and if the latter does not comply, the dispute will be referred for arbitration to a three-member tribunal. If the central government is not satisfied with the arbitration ruling, they can petition the constitutional court.
The central government cannot unilaterally acquire state land in a province even for a national security related purpose as the provincial council can petition the constitutional court against such an acquisition (Clauses 302, 307 and 308). Under the proposed new constitution, the declaration of a state of emergency by the central government is to be made subject to judicial review by the constitutional court. A state of emergency may continue in excess of three months or a period of more than 90 days within a 180-day period only if it is approved by two-thirds of the Members of Parliament (Clauses 290-5, 291-d and 292).
What this means in practice is that the central government will not be able to respond adequately to an emergency. The declaration of an emergency is an executive action and the judiciary is not competent to deal with such matters. In any case, if a stay order can be obtained against a declaration of emergency, there will be little point in declaring a state of emergency. There are many other issues as well such as the provision to merge the northern and eastern provinces (Clause 237-3) and the creation of a constitutional court to exercise the constitutional jurisdiction currently exercised by the Supreme Court,” he said.