In the evolution of Constitutional governance, there were several stages which Ceylon / Sri Lanka has passed through. The earliest was the Donoughmore Constitution which marked the last stage of the Island’s colonial dependence. The hallmark of that Constitution was the introduction of an Executive Committee system of governance as an aspect of a Cabinet system. The colonial system of governance was essentially a centralised unitary system with the colonial Governor at its apex as the representative of the British monarch.
The next stage of Constitutional governance was founded upon the Soulbury Constitution which borrowed the constitutional paradigm from the previous Donoughmore Constitution. The Soulbury Constitution like its predecessor established a centralised unitary State. This paradigm was carried into the First Republican Constitution (1972) and the Second Republican Presidential Constitutions (1978).
The difference between the two was that the 1972 Constitution posited executive power in Parliament: the National State Assembly, while the 1978 Constitution posited executive power in an elected President. But both Constitutions until November 14, 1987 provided a centralised unitary form of government.
The 13th Amendment which became law on November 14, 1987 broke the mould which thus far had provided constitutional governance in Sri Lanka. In that sense, it moved away for the first time in its history from being a thoroughly centralised system of governance to a devolved system of governance based on a constitutional scheme for devolution of powers to administrative units referred to as Provinces.
The 13th Amendment judgment
In 1987 Indo- Sri Lanka Accord generated two Bills – the Bill titled 13th Amendment to the Constitution and the Provincial Councils Bill. The jurisdiction of the Supreme Court under Article 120 of the Constitution was invoked by the President and 48 petitioners in respect of the Bills. (In re the 13th Amendment to the Constitution 1987 2 SLR 312). A full bench of the Supreme Court was nominated by the Chief Justice to hear the case.
The determination of the Chief Justice and three judges was that the Bill to amend the Constitution (13th Amendment) does not require the approval by the people by virtue of a Referendum under Article 83 and that once the Bill is passed by two thirds (2/3) majority and the Constitution amended accordingly. The Provincial Councils Bill will not be inconsistent with the so amended Constitution. The determination of four other judges was that the provisions of the 13th Amendment require the approval by the people at a Referendum.
The determination of the Justice Ranasinghe was that clauses 154(G)(2)(b) and 154(G)(3)(b) which, inter alia, require the approval of the people at a Referendum for the amendment or repeal of Chapter XVIIA or the Ninth Schedule (which contained the lists of subjects), require the approval by the people at a Referendum. Subject to this dissent, his lordship agreed with the Chief Justice’s view, thereby constituting the majority judgment which enable the Parliament to enact the two laws by a two- thirds majority.
The majority judgment may be summarised as follows:
that it is fundamental to a unitary State that there should be supremacy of Central Parliament and absence of subsidiary sovereign bodies.
that the application of this text demonstrates that in respect of the exercise of its legislative and executive powers, no exclusive or independent power is vested in the Provincial Council. The Parliament and the President have ultimate control over them and remain supreme. The bills in no way affect Sri Lanka’s unitariness.
that, the restraint relating to the power of Parliament to make laws in respect of the matters set out in List 1 of the Ninth Schedule are only procedural. Their Lordships’ relied on three cases – Bribery Commissioner v Ranasinghe, Attorney – General for New South Wales v Trethowan and Harris v Ministry of Interior, to justify their view that rules which prescribe the manner and form for the exercise of legislative power by Parliament to do not impinge / on or derogate from the sovereignty of Parliament.
that the President remains supreme or sovereign in the executive field and the Provincial Council is only a body subordinate.
that, the bills do not effect any change in the structure of the Courts or judicial power of the people with the Centre continuing to be supreme and the Provincial Council having no control over the judiciary.
The minority judgment of Justice Wanasundara and the other three judges may be summarised as follows:
that Articles 1, 2, 3, 6, 7, 8, 9,10, 11, 83, 30(2) and 62(2) constitute the basic features of the 1978 Constitution. Reliance was placed on the judgment of the Supreme Court of India in Keshawananda Bahrati v State of Kerela to justify this conclusion.
That Constitution specifically confers legislative power on Parliament and executive power on the President and the Cabinet.
that the statutes of the Provincial councils do not constitute delegated legislation; that the executive power of the people has been directly delegated to the Governor by passing the existing Cabinet machinery which is fundamental to the system of government and therefore, violates the basic feature of the Constitution.
that, on a comparison with the Indian Constitution the Bills depart to a great extent from the situation of the unitary State thereby creating a federal or quasi- federal system.
that, the 13th Amendment seeks to create an arrangement which is structurally in conflict with the structure of the Constitution and with its provisions both express and implied. It also contravenes both express and implied provisions of the Constitution.
The final determination was that the Referendum was unnecessary except for clauses 154G (2) and (3) of the 13th Amendment. These clauses were deleted to avoid the requirement of the approval by the people at a Referendum. It would appear that the determination of the Supreme Court has effectively settled legal position that devolution of powers to the Provincial Councils is within the framework of a unitary Constitution.
Legislative powers of Parliament
In terms of the 1978 Constitution sovereignty is in the people (Article 3) and the legislative power of the people is exercised by Parliament. In the exercise of such power Parliament makes laws. (Article 75). Legislative power is couched in express terms in the 1978 Constitution. (Article 75). The legislative power of the people is exercised by Parliament acting along and also together with the people at a Referendum (Article 83) or by the people alone at a Referendum (Chapter XIII Art. 85(2)).
A law may be passed by simple majority unless it is required to be passed by a two – third majority. In terms of the Constitution the power given under Article 75 is wide and Parliament can with the approval of the People even amend or repeal any of the Provisions of the Constitution including Article 75. In this background, the question whether the provisions in the 13th Amendment erode the legislative power of Parliament has been answered by the Supreme Court in favour of sovereignty. The majority view was that the provisions impose procedural restraint.
It may also be noted here that the 13th Amendment contains several provisions which permit the Centre to intervene in the Provincial Councils. They are designed to augment the unitary character of the State. These provisions relate to (a) Public Security (Article 154J (b), Failure to comply with directions. (Article 154K), (c) Failure of administrative machinery (Article 154L), (d) Financial instability (Article 154N) and (e) Finance Commission (Article 154R).
The 13th Amendment (Chapter XVII A)
Chapter XVIIA that was introduced by the 13th Amendment provides for the establishment of Provincial Council for every Province in the 8th Schedule (Article 154(A)(1)). Accordingly, a Provincial Council shall be established for every Province with effect from such date or dates as the President may appoint by order published in the Gazette.
Every Provincial Council so established shall be constituted upon the election of its members. The President established Provincial Councils for each of the 9 Provinces including the Northern and Eastern Provinces, separately with effect from 03.02.1988.
Article 154A(3) permits Parliament to provide, by or under any law, for two or three adjoining Provinces to form one administrative unit with one elected Provincial Council and for the manner of determining whether such Provinces should continue to be administered as one unit or as separate units. Accordingly, section 37 of the Provincial Councils Act No.42 of 1987 provides for that matter.
Three lists
Three lists in the Ninth Schedule in the Constitution are the Provincial Council List, the Reserved List and the Concurrent List. The Provincial Council List contains the matters in respect of which the Provincial Council is empowered to make statutes (Article 154G (1). These mainly cover those areas of activity where decisions affect primarily persons living in the Province and are applicable to the Province only.
The Reserved List (Article 154G (7), contains the matters in respect of which the Parliament is empowered to make laws. These cover areas of national importance. The Concurrent List contains the matters in respect of which both Parliament and the Provincial Council may make laws and statutes.
Provincial Council List
Article 154G enables the Provincial Council to make statutes which apply only within the Province. This power is subject to the provisions in the Constitution including Article 75 and Article 154 G (10). (Art. 154G(1), 154G (5)(b). A statute does not attain the constitutional status of law as the definition of ‘law’ in Article 170 remains unamended.
Similarly it does not enjoy constitutional immunity or protection that is accorded to an Act of Parliament (Article 80(3). It does not have the attribute of finality and is always subject to review by the Court. The validity of ‘statute’ can always be canvassed in a Court of Law even years after its passage. If it is ultra vires for a Provincial Council to enact such a statute, it is a nullity and is void ab initio. A statute unlike a law which is proprio vigore valid does not acquire such validity on its enactment.
The provisions relating to the making of statutes in the 13th Amendment provide for a simple mechanism. (Article 154G). Once a statute is made, the Provincial Council is in control of the matter covered by the statute. The making of a statute in legal terms means the exclusion of the national government activity. A statute without the necessary machinery to implement these provisions is worthless and may cause hardship to the people of the Province.
Concurrent List (List III, 9th Schedule)
Article 154g (5)(b) empowers the Provincial Council to make statutes with respect to any matter in the Concurrent List. However, the power given to the Provincial Council to make statutes in respect of the matters set out in the Concurrent List is restricted. The power is also given to Parliament to legislate in respect of any matter set out in the Concurrent List, after such consultation with the Provincial Councils as Parliament may consider appropriate in the circumstances of each case (Article 154G(5)(a)).
The extent and scope of consultation is not specified. The manner is which it is to be given effect to is vague. Nevertheless it is settled law that such consultation is mandatory. (In re the Transport Board Statute (Takeover of Assets and liabilities of Northern and Eastern Province. In the context of the constitutional structure the superior power of the Parliament must necessarily be regarded as the guiding factor in the interpretation of these sub-articles.
Reserved List and national policy
While the Provincial Council cannot make statutes in respect of any matter set out in the Reserved List the first item in the Reserved List is the ‘national policy in all subjects and functions’. The Provincial Councils have no powers in respect of national policy even on subjects and functions included in the Provincial Council List. It is for Parliament to lay down national policy. The statute of a Provincial Council is subject to such policy.
Effect of national policy
A significant dictum on the effect of National Policy duly formulated by the Central Government on the Provincial Council was made by the Supreme Court in the case of Kamalawathi and Others v the Provincial Public Service Commission, North Western Province and Others.
The case related to the alleged violation of Article 12(1) – the right to equality – of the Constitution in that the petitioners who were teachers were transferred by the Provincial Public Service Commission without following the procedural prescriptions laid down by a Circular issued by the Minister of Education and Higher Education at the Centre which contained the National Teacher Transfer Policy. Fernando J., held that ‘while powers in respect of education have been devolved to Provincial Councils, those powers must be exercised in conformity with national policy. Once national policy has been duly formulated in respect of any subject there cannot be any conflicting provincial policy on that subject.
Although this judicial dictum will no doubt apply to the facts of this case as the petitioners belong to the Sri Lanka Teachers’ Service, which is as the name suggest an all-island service and there should be equality of treatment of all officers belonging into an all island service irrespective of where they are at a given point of time. However, it is doubtful whether such a broad statement of principle, would be applied in respect of all cases as it has a tendency to make legislative devolution to be bereft of any effectiveness if matters by their nature and character confined to Provinces are guided by national policies and not by provincial policies.
It is in the nature of converting the devolution of legislative power and or executive power, undertaken by the 13th Amendment into decentralisation of legislative power and / or executive power. It is with due respect submitted that the Court should reflect upon the nature of the subject matters and consider whether they demand a provincial policy due to their provincial characteristic or a national policy as they transcend provincial attributes.
Governor’s assent to statutes
Looking at the provisions contained in Article 154C of the 13th Amendment, the Governor of each Province becomes the repository of the devolved executive power. Article 154F (2) which is functionally linked to Article 154C deals with those devolved executive powers which gave the Governor a discretion to exercise.
A statute comes into law only upon receiving the assent of the Governor. (Article 154H (1) and (2)). When a statute is presented to the Governor for his assent, he shall either assent to the statute or may return it to the Provincial Council together with a message requesting the Council to re-consider it or consider the desirability of introducing amendments as may be recommended in the message (Article 154H(2)), in which event it is imperative for the Provincial Council to the re- consider the statute having regard to the message of the Governor, but it may pass the statute with or without amendments and present it again to the Governor for his assent. (Article 154H(3)).
Thereafter, the Governor may assent to the statute or reserve it for reference by the President to the Supreme Court within one month of the passing of the statute for the second time, for a determination that it is not inconsistent with the provisions of the Constitution. Depending on the determination of the Supreme Court, the Governor shall either assent or withhold his assent. (Article 154H (4)).
To be continued next week.
