By C. A. Chandraprema
Dr. Jayampathy Wickremaratne has been trying to allay anxieties of concerned citizens about the new constitution that he is involved in drafting. He claims that there will be a special constitutional provision against secession. What he is referring to is the following provision in the recently released interim report of the Steering Committee of the Constitutional Assembly:
“The President may, on the advice of the Prime Minister, where a situation has arisen in which a provincial administration is promoting armed rebellion or insurrection or engaging in an intentional violation of the Constitution which constitutes a clear and present danger to the territorial integrity and sovereignty of the Republic, by Proclamation – (a) Assume to the President, all or any of the functions of the administration of the Province and all or any of the powers vested in, or exercisable by, the Governor, the Chief Minister, the Board of Ministers or anybody or authority in the Province; and (b) Where it is necessary for the effectual exercise of the powers under subparagraph (a) of this paragraph, dissolve the Provincial Council. (c) The proclamation shall include reasons for the making of such proclamation. Such a Proclamation shall be subject to Parliamentary approval and be subject to judicial review.”
This is supposed to be the provision that will be Wickremaratne’s magic bullet to prevent separatism. Even the best educated members of society are unfamiliar with constitutional matters and if those drafting a new constitution are out to deceive the public, there is nothing to prevent them from doing it. One glaring example is the way they made the President responsible to Parliament through the 19th Amendment. After the 19th Amendment was promulgated, the yahapalana leaders claimed that earlier the President was a law unto himself and that it was the yahapalana government that had made the president responsible to Parliament. This was, in fact, even touted as one of the ways in which the powers of the presidency had been truncated and the institution made more ‘democratic’.
This provision to make the president responsible to Parliament, which was brought in by the 19th Amendment as Article 33A of the Constitution is as follows:
“33A. The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security”
What the yahapalana constitution makers did not tell the public, however, was this supposedly new Article 33A had always been in the 1978 Constitution from the time J. R. Jayewardene promulgated it as Article 42 of the Constitution.
The 19th Amendment was passed by Parliament on 28 April 2015. The old Article 42 which had been in the Constitution from 1978 till it was repealed on 28 April 2015 went as follows:
“42. The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security.”
The new Article 33A introduced by the 19th Amendment and the old article 42 are identical both in letter and sprit with not a word or a comma being different. Nobody with an iota of professional or academic probity would perpetrate such a fraud on the people. Never in the history of constitution-making in the world would such open chicanery have been practised on the voting public by an elected government. Constitutional Amendments are complex documents and not even a lawyer can be expected to notice immediately if some jiggery-pokery has taken place. The working assumption without which life would be impossible is that there will be no jiggery-pokery in the drafting of any law, especially constitutional amendments. Yet that is an assumption we are unable to operate on when it comes to the yahapalana government.
The safeguard which provides no protection
The deception that took place with regard to ‘making the President responsible to Parliament’ was just one example. With Dr. Wickremeratne saying that the new constitution will have an inbuilt safeguard against secession on the lines of the provision mentioned earlier, it becomes clear that another Article 42 style fraud is in the pipeline – the chicanery in this latter instance being worse than in the previous instance. From the time the provincial councils system was introduced to our Constitution through the 13th Amendment, there have been safeguards against any attempt at secession. In fact, the first Chief Minister of the merged North-eastern provincial Council did make a unilateral declaration of independence in 1989, but no secession took place. From that point until 2008 when the first Eastern Provincial Council was established, there was no functioning provincial council in the North and East.
The provisions against secession become important only when there are functioning provincial councils. In this respect, the existing Constitution has perfectly adequate safeguards to prevent secession in the form of Articles 154J, 154K, 154L and 154M. Under Article 154J, when the President is of the opinion that the security of Sri Lanka, or the maintenance of essential supplies and services is threatened or that there is a risk of war or external aggression or armed rebellion, and he makes a proclamation under the public security laws, he can give directions to the provincial Governors as to the manner in which they are to exercise their powers. Such a proclamation under the public security laws can be made before an actual situation arises if the President feels that there is the imminent risk of such an event taking place. When such a proclamation under the public security law is in operation in a province, the President may extend his capacity to give directions to the Governors on the exercise of their executive powers to any other province as well.
According to Article 154K, if the Governor or any Provincial Council has failed to comply with any directions given by the President in terms of Article 154J, the President may hold that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution. Under Article 154L, if the President comes to the conclusion in terms of Article 154K that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution, he may take over all or any of the functions of the administration of the Province including those of the Governor. The President may also declare that the powers of the Provincial Council shall be exercisable by Parliament. Such a proclamation by the President will have to be placed before Parliament within two weeks and if it is approved by Parliament will continue for a period of two months and it can be renewed once every two months for as long as a year if necessary.
Under Article 154M, when the President has made a proclamation under Article 154L to the effect that Parliament can exercise the powers of a provincial council, the Parliament can in turn confer on the President, the power to make statutes for that provincial council and to authorize the President to delegate that power to any other authority of his choosing. Readers will see that the safeguards offered by Articles 154J, 154K, 154L and 154M are much more comprehensive and far reaching than the proposed anti-secession provision for the new constitution. So, in the first instance, Wickremaratne is trying to short-change the people of Sri Lanka by bringing in a less comprehensive and less far reaching provision to cater to emergency situations than the provisions that exist in the present constitution.
Concealing the judicial review provision
There is also a vitally important matter that Dr. Wickremeratne has not revealed to the public about his much touted safeguard against secession. All proclamations and directions given under the anti-secession provision that he has proposed will be subject to judicial review – a factor which radically alters its effectiveness. Under Articles 154J and 154L of the present Constitution, the proclamations made and the directions given under the public security laws in relation to the provincial councils ‘shall be conclusive for all purposes and shall not be questioned in any Court or tribunal’. This makes for a radical difference. The additional safeguard given in Articles 154J and 154L of the present Constitution by declaring that proclamations made and directions given under those Articles, cannot be called into question by any court of law, gives the executive arm greater powers to deal resolutely with emergencies. An emergency is, by definition, a situation when normalcy does not prevail and extraordinary measures are required to restore normalcy. To enable the judicial review of a declaration of emergency is to hamper the very process of restoring normalcy. When there is an open rebellion in a province how feasible is it to subject the emergency measures being taken to contain that situation to court procedures with notices to appear before courts, hearings and stay orders etc.? That the supposed anti-secession provision presented by Wickremaratne is subject to judicial review is bad enough. But, it gets worse when one realises that this ‘judicial review’ that Wickremaratne speaks of is not by the Supreme Court, but by a special constitutional court proposed to be set up under the new Constitution. This constitutional court is to function outside the usual court structure and will not have judges but others – lawyers and ‘constitutional experts’ sitting on it – in other words, the NGO types controlling the constitution making process including Wickremaratne himself may end up sitting on this constitutional court which is supposed to review proclamations made and directions given under this much touted anti-secession provision.
It’s not difficult to imagine the attitude that this constitutional court will take towards the proclamations made and directions given under public security laws. A parallel process taking place under the yahapalana government is the move to repeal the Prevention of Terrorism Act and to render the public security laws in this country toothless. When one views Wickremeratne’s proposal to replace the provisions in Articles 154J, 154K, 154L and 154M with his emasculated anti-secession provision in the overall context of things, the sheer perfidy of the whole endeavour becomes clear.