HOME

Legality/constitutionality of 13-A may be questionable

The 13th Amendment to the Constitution of 1978 was certified on 14th November 1987. For a Bill to be certified, certain procedures have to be followed. The Bill in question, titled "Thirteenth Amendment to the Constitution – A Bill to amend the Constitution of the Democratic Socialist Republic of Sri Lanka" and "Provincial Councils Bill", was referred to the Supreme Court under Article 121 of the Constitution, by the President.

According to Article 121, when the jurisdiction of the Supreme Court is invoked by the President or by any citizen by a petition, such reference has to be made within one week of the Bill being placed before Parliament and the Supreme Court has to communicate its determination within three weeks of the reference.

Article 120 of the Constitution states: "The Supreme Court shall have sole and exclusive jurisdiction to determine any question as to whether any Bill or any provision thereof is inconsistent with the Constitution" and in the case of a Bill to amend or for the repeal and replacement of the Constitution "…the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a Referendum" (Article 120 (a).

DETERMINATION of the SUPREME COURT

The 13th Amendment being such a Bill, the only determination expected of the Supreme Court was whether an "Approval by the People at a Referendum" was required or not. A full bench of nine Supreme Court Judges heard the views of the petitioners from October 22 to 30, 1987. Four Judges held that a Referendum was NOT required, and four other Judges held that both Bills in their entirety required the approval of the people at a Referendum. The ninth Judge held that "…the provisions of Clauses 154 G(2)(b) and (3)(b) of the Thirteenth Amendment to the Constitution constituted an amendment of Article 83, and that, therefore, it is an amendment which shall become law only if passed in the manner and form spelt out by the provisions of the said Article 83" (provision of Article 83 being for 2/3 approval by Parliament and by the "People at a Referendum").

Notwithstanding these separate determinations the final Determination of the Supreme Court was: "Referendum unnecessary except for Clauses 154 G(2)(b) and (3)(b) of Thirteenth Amendment".

Article 154G relates to Statutes of Provincial Councils (Chapter XVIIA and Articles 154A to 154T of the Constitution contain provisions relating to Provincial Councils). Consequently, this particular Article is of special relevance because it sets out procedures to be followed. Thus, the determination of the Supreme Court in regard to one of the key Articles, namely 154G, was absolutely necessary for the Bills to be consistent with the Constitution.

PROVISIONS as STATED in the ORIGINAL BILL

Of particular relevance to the discussion are Articles 154G (2) and 154G (3). Quoting from the original Bill pertaining to these Articles, Judges L. H. de Alvis and H.A.G. de Silva stated: "No Bill for the amendment or repeal of the provisions of the Chapter of the Ninth Schedule shall become law unless such Bill has been referred by the President, after its publication in the gazette and before it is placed on the Order paper of Parliament, to every Provincial Council for the expression of its views thereon, within such period as may be specified in the reference and –

(a) where every such Council agrees to the amendment or repeal and such Bill is passed by a majority to the Members of Parliament present and voting; or

(b) where one or more Councils do not agree to the amendment or repeal such Bill is –

(1) passed by a special majority required by Article 82 (2/3); and

(2) approved by the People at a Referendum".

154G (3) which relates to Bills concerning matters set out in the Provincial Councils List provides as follows:

"No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, in every Provincial Council for the expression of its views thereon, within such period as may be specified in the reference, and –

(a) where every such Council agrees to the passing of the Bill, such Bill is passed by a majority of the Members of Parliament present and voting; or

(b) where one or more Councils do not agree to the passing of the Bill, such Bill is –

(i) passed by the special majority required by Article 82 (2/3); and

(ii) approved by the People at a Referendum…".

13th AMENDMENT as stated in the CONSTITUTION

All the provisions relating to 154 G(2) and 154 G(3) in the Constitution are as given in the Bill EXCEPT for one VERY SERIOUS difference:

The Constitution OMITS the requirement for approval by the People at a Referendum for both 154 G(2)(b) and 154 G(3)(b); the very requirement that the Supreme Court determined was needed for the Bill to be consistent with the Constitution.

By omitting the requirement to obtain the "approval of the People at a Referendum" when one or more Provincial Councils do not agree, it appears that Parliament had taken upon itself to ignore the determination of the Supreme Court. Under the circumstances what really is the status of the Bills?

The need for 2/3 approval of Parliament and approval of the People at a Referendum applies to entrenched Articles. The determination of the Supreme Court was that 154 G(2)(b) and (3)(b) should be on par with other entrenched Articles. By deleting/omitting the requirement for a Referendum Parliament derogated its status to suit Article 82 where only a 2/3 majority is required. It should be noted that in the event such a majority is not possible, the Bill in question "…shall become law applicable only to the Provinces for which the

Provincial Councils agreed to the Bill". Therefore, would this not result in asymmetrical Devolution and if it does, how could it be reconciled with equality before the law, because some Provincial Councils would enjoy privileges denied to others or visa-versa?.

IMPLICATIONS for NOT being CONSISTENT with the CONSTITUTION

What is the status of a Bill that is inconsistent with the Constitution? According to Article 4(c) of the Constitution, the Judicial Powers of the "People shall be exercised by Parliament". On the other hand, according to Article 120, the Supreme Court is the sole and exclusive authority for determining whether a Bill is consistent with the Constitution or not. Therefore, if Parliament decides to ignore the determination of the Supreme Court relating to a Bill that is inconsistent with the Constitution, what is the status of such a Bill? What is the implication as far as the People are concerned when they are governed under provisions that are unconstitutional?

In this particular instance, the issue relates to a portion of the Bill in question. In such an instance, could this particular section be amended as per the determination of the Supreme Court, or is the process more complex? These and other relevant questions need to be addressed, however late in the day, despite the pressures exerted on the Government to implement the 13A in one form or another.

CONCLUSION

It is surprising that the inconsistency between the determination of the Supreme Court and the provisions in the Constitution relating to Articles pertaining to statutes of Provincial Councils has gone unnoticed for nearly 22 years. Does this inconsistency mean that the 13th Amendment in its current form in the Constitution is unconstitutional since it does not conform to the determination of the Supreme Court? Even if Parliament decided to ignore the determination of the Supreme Court, the fact remains that the sole and exclusive authority responsible for passing judgment on the constitutionality of any Bill had determined the parameters that made the Bill constitutional. By not adhering to the parameters specified was the Bill made unconstitutional? In such an event what is the Bill’s current legality? If illegal, could the People be governed under a system that is found to be illegal?

The opinion of the four Judges who determined that a Referendum was not needed stated: "In our view Articles 154G (2) and (3) do not limit the sovereign powers of Parliament. They only impose procedural restraints". The "restraint" referred to was the need for a 2/3 majority and approval by the People at a Referendum in regard to entrenched Articles as stated in Article 83 and the 2/3 majority needed to amend other provisions as per Article 82. These "procedural restraints" may have had relevance for a Parliament that had an unprecedented majority, albeit under hostage conditions, but in the context of current political formations these very same "restraints" would prove to be insurmountable obstacles, thus seriously compromising the sovereignty of the People.

If the Government is of the opinion that Police powers assigned to the provinces need to be curtailed for reasons of security (even on a temporary basis, in order to retain more Police powers at the center to prevent a resurgence of the LTTE), it is very likely that one or more Provincial Councils would not agree. In such an event the options open to the Government are either to enforce it by overcoming the "procedural restraints", or to pass it with a simple majority and make it applicable ONLY to those Provincial Councils that agree, thereby making Police powers asymmetric among the provinces. What impact this would have on security related issues is too complex to even contemplate.

Constitutional authorities would have to determine the procedures needed to correct the inconsistency between the determination of the Supreme Court and the provisions in the 13th Amendment as it appears in the Constitution. However complex the "procedural restraints" may be, the simplest solution would be repeal the 13th Amendment and regain the sovereignty of the People that had been compromised.

Google
www island.lk


Copyright©Upali Newspapers Limited.


Hosted by

 

Upali Newspapers Limited, 223, Bloemendhal Road, Colombo 13, Sri Lanka, Tel +940112497500