June 14, 2013, 8:19 pm

By Neville Ladduwahetty


Several prominent civil society members are opposing attempts of the Government to introduce revisions to the 13th Amendment. The issue is not whether there is merit or not in the contemplated revisions. The issue is that the constitutional procedures that need to be followed in the case of a Bill to amend/repeal provisions to the 13th Amendment or any matter set out in the Provincial Council List, makes progressive revisions a daunting undertaking. This makes the 13th Amendment a fetter to progress, and a trap from which the only escape is to repeal it altogether.




For instance, there is popular consensus of the need to devolve power beyond the Provincial Councils to grass roots levels. Under current provision this task is left to the discretion of each Provincial Council. Since this is bound to create asymmetries in the powers devolved to grass roots levels among the provinces there is a need for uniformity of the devolved powers among the provinces. Such uniformity is possible only if it is constitutionally entrenched by means of an amendment to the current provisions of the 13th Amendment. However, approval even for such a progressive measure is made difficult due to the strenuous procedure of requiring a 2/3 majority to effect a revision. Thus, the 13th Amendment presents a fetter to progress.


The procedure that needs to be followed for the amendment/repeal of any provisions of the 13th Amendment is stated in Article 154G (2). This provision requires a Bill to amend or repeal any provisions of 13th Amendment to be referred by the President "to every Provincial Council for the expression of its views thereon". If "every Provincial Council agrees to the amendment or repeal" such a Bill could be passed with a simple majority. If on the other hand, "one or more Councils do not agree to the amendment or repeal" such a Bill needs to be passed by a 2/3 majority as required by Article 82.


The same procedure needs to be followed in the case of a Bill in respect of any matter set out in the Provincial Council List. Since the recently passed Divi Neguma Bill was such a Bill there was no option but to follow the procedure outlined above. The bottom line is that any attempt to amend any provisions of the 13th Amendment or a Bill relating to a matter set out in the Provincial Council List needs to be passed with a 2/3 majority in the event one or more Councils do NOT agree to such a Bill.


HISTORY OF the 13th AMENDMENT BILL


The original Bill to amend the Constitution (13th Amendment & Provincial Council Bills), submitted to the Supreme Court in 1987 to determine whether the 13th Amendment Bill required "approval by the People at a Referendum" by Article 120 of the Constitution, contained the requirement of a 2/3 majority of Parliament and a referendum by the People in the event one or more Councils did NOT agree to the provisions in the Bill. Since the Supreme Court did NOT make a unified determination as a Court and forwarded 3 separate determinations (4 judges requiring a referendum; 4 judges NOT requiring a referendum; 1 judge determining that provisions of 154G (2) (b) and (3) (b) "require approval by the People at a Referendum"), Parliament took upon itself the drastic step of arbitrarily deleting the requirement of a referendum, and retained only the requirement of a 2/3 majority in the event one or more Councils did NOT agree to a Bill.


Even though it could be argued that Parliamentary action made it less restrictive to amend provisions in the 13th Amendment, the fact remains that what the Parliament did amounted to a revision of the original Bill that had made the People an integral part of the Legislative processes. Thus, it was obligatory on the part of the Government to have resubmitted the revised version to the Supreme Court, for the latter to determine whether this revised version required approval by the People at a Referendum. Had they done so, there is a strong possibility the Supreme Court may have determined that a Referendum was needed. To determine otherwise would have been to exclude the people’s participation in Legislative processes; a fact recognized in Article 4 which states that Legislative powers shall be exercised by the elected representatives "and by the People at a Referendum".


CONSEQUENCES of PARLIAMENTARY ACTION


The possibility of "one or more Councils" NOT agreeing to a Bill is real. Another real possibility is that a majority of the Councils (5 out of 9 may NOT agree to a Bill. This could very well be the case with attempts to devolve powers from the Provincial Councils to grass roots levels, since the Councils would perceive such attempts as efforts to dilute the powers of the Councils. This would induce a majority of the Councils to oppose attempts to devolve power to grass roots levels. Thus the interests of the People are at variance with the interests of the Councilors. Similarly, the interests of the People and the Provincial Councilors would be at variance in the case with Police and Land Powers. In this instance, while it is unlikely that the People would want the Provincial Councilors to have jurisdiction over Police and Land Powers as specified in the 13th Amendment, the Councilors would want to exercise powers pertaining to both, thereby causing a majority of the Councils to oppose attempts to withdraw Police and Land Powers.


Under any of these circumstances Parliament could still pass Bills in complete disregard to the wishes of the Provincial Councils and even the People, provided the Government in question could garner a 2/3 majority in Parliament. Since opportunities for Governments to muster 2/3 majorities is rare, and attempts to introduce amendments however progressive are totally dependent on the abilities of Governments to secure the needed 2/3 majority. The difficulties of securing 2/3 majorities are reported to be a problem even for the present Government. Consequently, the 13th Amendment as presently constituted is a fetter to progress.


CORRECTIVE PROCEDURE


Under the circumstances, not to repeal the entirety of the 13th Amendment is to live under the restrictive procedures provided for in the 13th Amendment without opportunities to introduce progressive Bills that would improve governance and the People’s lives. These difficulties are increasingly being realized by parties attempting to bring about amendments to existing provisions such as withdrawing Police and Land Powers. The primary source is the inability to muster a 2/3 majority to effect the contemplated amendments. Such majorities are hard to come by and have been enjoyed only by three Governments since independence.


The issue is what legitimate remedial procedures are available to escape from this trap. Even though it could be established that the procedures followed to pass the 13th Amendment were illegal, Article 80 (3) denies anyone from questioning the validity of a Bill once it is certified. Under these limiting circumstances, the ONLY option is for the People to be given the opportunity to decide acceptance or rejection of the 13th Amendment by means of a Referendum. In the event the People reject the 13th Amendment the question that remains to be answered is whether such an outcome could prevail over the approval given by the Parliament in 1987.


The answer lies in the interpretation of Article 3. This Article states:


"In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise".


Since government is part of the People’s sovereignty, it must follow that the organs of government must be subordinate to the People. It then must follow that it should be possible for the People to either support or reject a decision made by one of the organs of the government such as Parliament. In this particular instance, it would then be legitimate for the People to reject the 13th Amendment through the mechanism of a Referendum and override the ruling of the 1987 Parliament.


Since such a Referendum can only be initiated by the President, a proposal was submitted in a letter to the President dated March 8, 2010. This letter brought to the attention of the President the unconstitutional and unlawful procedures associated with the passage of the 13th Amendment and suggested that the President consult the Supreme Court under Article 129 and request the Court to review the circumstances associated with the passage of the 13th Amendment, since it is "question of law or fact", and to report to the President its opinion thereon. Such a determination and report by the Supreme Court should be conducted publicly in order to expose the illegality of the procedures on which the 13th Amendment was founded. Since the facts would establish that the procedures adopted were in fact illegal, it would give the President the moral justification to authorize the conduct of a referendum either on grounds of the unlawful circumstances associated with the passage of the 13th Amendment or by invoking provisions of Article 86 since it is an issue of "national importance". Either way, there are grounds for the President to authorize a Referendum to establish the views of the People regarding acceptance or rejection of the 13th Amendment.


CONCLUSION


The options open are either to tinker with the 13th Amendment and attempt to introduce amendments or to repeal it outright. The hard truth that needs to be realized is that the first option is totally dependent on the ability of Governments to muster a 2/3 majority, no matter how progressive the amendment. Considering the fact that only three Governments have enjoyed 2/3 majorities since independence, dependence on this reality makes this option a fetter to progress.


The second option of repealing the entirety of the 13th Amendment cannot be initiated by the People however convinced they may be of its need. It is only the President who is authorized to initiate the call for a referendum.


This article proposes a procedure that could justifiably be adopted by the President for such an initiative. Considering the growing opposition to the 13th Amendment, it should serve as sufficient compulsion for the President to initiate the call for a Referendum and give the People the opportunity to decide how they are to be governed; a right denied to them by the very organs of Government that were supposed to include and define the People’s sovereignty.


The question has been raised as to whether a Referendum can override approval given by the Parliament. The answer depends on how Article 3 is interpreted. Since this Article clearly enunciates that the Sovereignty of the People "includes powers of government", it must follow that organs of that government such as Parliament that exercise "legislative powers" must be subordinate to the decisions by a Sovereign People. Therefore, it could be justifiably concluded that a determination by the People through a Referendum must prevail over the decision by a Parliament. This matter too could be cleared by the Supreme Court during the consultative process initiated by the President concerning a Referendum.


It is apparent from the foregoing that the consolidation of peace is in the hands of the President just as it was in securing the peace. What he did with securing peace and what he does with consolidating the peace would be his legacy to the nation.

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