Divi Neguma Bill and Supreme Court


By Neville Ladduwahetty

The general perception among commentators and analysts is that the impeachment of the Chief Justice is somehow connected with the Divi Neguma Bill. Some have even alluded to the fact that had the Supreme Court not required the bill to be referred to every Provincial Council for the expression of their views, the Bill would have been passed by Parliament and the whole matter would have been a non-issue. What arises then is whether the Supreme Court deliberately went out of its way to make it difficult for the government, or whether it was guided by the strict provisions in the Constitution.

Whatever the motivations of the Supreme Court, it cannot invent provisions in the Constitution. It could interpret or apply its provisions. Its determinations on the Divi Neguma Bill must be seen in this light. A fact that cannot be denied is that the Divi Neguma Bill was impacting on provisions specifically devolved on the Provincial Councils in one way or another. Under the circumstances, Article 154G(2) and 154G(3) of the 13th Amendment apply. 154G(2)states: "No Bill for the amendment or repeal of the provisions of this Chapter or the Ninth Schedule" (Provincial Council List, Concurrent List and Reserved List) shall become law unless such Bill has been referred by the President to every Provincial Council for the expression of its views". Similarly, 154G(3) states: " No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill is referred by the President to every Provincial Council for the expression of its views".

In view of the Constitutional provisions cited above, the Supreme Court had no option but to determine that the Divi Neguma Bill be referred to every Provincial Council. This the Government did and in doing so, both the Government and the Judiciary acted to uphold the provisions of the Constitution. Complications arise if one or more Provincial Councils oppose the Bill. In this particular case, 8 Provincial Councils approved the Bill and since the Northern Province does not have a legitimately constituted Provincial Council, approval was given by the Governor. The moot point is whether the Governor has the authority to rule on a matter pertaining to devolved powers.

The answer, according to Article 154C is that the Governor’s powers are limited only to Executive Powers. This article states: "Executive power extending to the matters with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor…" and since the Divi Neguma Bill is a statute relating to Provincial Councils the Governor does not have the authority to rule on the Bill. Even the President is authorised to "assume to himself all or any of the functions of the administration of the Province" in the event of a dysfunctional Provincial Council (Article 154L). It is only Parliament that has the power to exercise all the powers of a Provincial Council and that, too, by Presidential proclamation.

The Supreme Court ruling that the approval of the bill by the Governor of the Northern Province was invalid was read out by the Speaker on the same day he read out the impeachment order. Thus, only 8 of the 9 Provincial Councils had approved the Bill. Consequently, the Supreme Court had no alternative but to require the Bill to be passed by a 2/3 majority as called for by Article 154G(2) (b) or 154G(3) (b), except for clause 8 of the Bill that would require a 2/3 majority and a referendum. Even in this instance, the Supreme Court had suggested a way out to avoid a referendum in keeping with the provisions of Article 123 of the Constitution. It is evident from the foregoing that the Supreme Court was not only acting according to the provisions of the Constitution, but also guiding the Government to achieve its objectives.

No Court could be faulted for such professional conduct. The impression created by commentators that the Government was engaged in a witch hunt is out of place. At the end of the day, when the Government passes the Bill with a 2/3 majority it would be complying with the law within the guidelines set by the Supreme Court. Under the circumstances, even though impeachment proceedings against the Chief Justice cannot be related to rulings on the Divi Neguma Bill, the timing has left an illusion of a connection between the two causing many to speculate on the motives to impeach. Notwithstanding all of the above, the issues pertaining to the Chief Justice’s personal conduct are outside the purview of these comments.

What is most disturbing in this whole drama is the failure on the part of the drafters of the Bill and the legal advisors to the Government to warn the government of the impediments associated with amending provisions in the 13th Amendment. Had they done so, the government would have been aware from the outset that any amendments to devolve powers would require a 2/3 majority at least. Other provisions in the Bill could have been appropriately modified to avoid the need for a referendum as well. This experience is no different to the drama associated with the 13th Amendment Bill when it was first introduced in September 1987. Article 154G(2) and (3) of the original Bill had a provision calling for a 2/3 majority and a referendum if one or more Provincial Councils opposed a Bill relating to their activities. The then Parliament took it upon itself to delete the requirement for a referendum and passed the 13th Amendment. Had the then Parliament not deleted the requirement for a referendum the Divi Neguma Bill too would have required the approval of a 2/3 majority and a referendum. It appears that Article 154G continues to haunt us.

The lesson from this and past experience is that the 13th Amendment is a fetter for improved governance. As stated in an earlier article (The Island, October 3, 2012), if the Government wants to devolve greater power to levels below the Provincial Councils (a measure that is recommended and advocated by many including the LLRC), and if one or more Councils oppose on grounds that their powers are being eroded, it would have to do so with a 2/3 majority. If such opposition were to come from the Northern and/or Eastern Provinces, it would be portrayed as another attempt by a majoritarian government to subdue the political power of minorities; a claim that will echo internationally. Sri Lanka needs to get rid of the 13th Amendment fetter for the sake of all its citizens, and find other ways to share political power.

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