By Laksiri Fernando –

Dr. Laksiri Fernando

Any change to the 13^th Amendment before the promised first Northern Provincial Council (NPC) elections in September will be a gross discrimination against the people in the North who are predominantly ethnic Tamils as all other provincial council elections were held under the prevailing constitutional provisions. This would be very clear to the whole country and the international community to see whatever that is worth.

The hurriedly prepared amendments will be more tumultuous than the 13^th Amendment itself and goes against the credibility of the government that repeatedly promised 13+ and even more at various occasions to appease the Tamil community, India and the international community. The recent most promise was what Minister Anura Priyadarshana Yapa said as a Cabinet briefing on 23 May, reported by Colombo Page the following day.

At the cabinet press briefing Thursday Minister Yapa said the government has no intention whatsoever to postpone the Northern Provincial Council polls, repeal the 13th Amendment or introduce amendments to the Constitution to remove police and land powers to the provinces.  

The government would resort to a power devolution process or introduce constitutional changes only through an extensive political interaction with all political parties and other stakeholders and that is why the government took measures to constitute a Parliamentary Select Committee (PSC) to discuss all these issues related to power devolution, police and land powers to PCs and security issues of the provinces, the Minister said.     

Even if the government’s concern is on ‘land and police powers’ in the provincial council list, any hurried amendment is not necessary as they have never been devolved to the provinces in the past. Whatever the intentions of an elected Provincial Council in the North after such an election, it would be extremely difficult for such a Council to take land or police powers into its hands unilaterally.

However, amending particularly the 154G in the 13^th Amendment is completely a different ball game. As it is intended, reported by the Combo Telegraph today, it would make devolution completely meaningless and a mockery. There are 11 sections to the 154G and most relevant in this respect are Sections (2) and (3). Under the heading “Statutes of Provincial Councils,” Section (1) says “every Provincial Council may, subject to the provisions of the Constitution, make statutes applicable to the Province for which it is established, with respect to any matter set out in List 1 of the Ninth Schedule (hereinafter referred to as “the Provincial Council List”).

This statute making power is important and without this power the Provincial Councils are not institutions of devolution of power. The demarcation between devolution and decentralization rests on this matter, if otherwise or without this power the Provincial Councils would be mere instrument of decentralization and for that matter elected councils are not necessary. Those who argue for smaller units usually do not understand this difference or conveniently ignore it. In a country like Sri Lanka, there is no point in devolving statute making power to smaller units i.e. Districts, although even federal units in some other countries are smaller than our districts i.e. Switzerland.

The other important matter in a system of devolution is the ‘constitutional status’ for the devolved power with safeguards preventing arbitrary amendment or repeal and that is guaranteed in Section (2) of 154G although to a lesser degree than usual, in my opinion. The section is as follows in full.

(2) No Bill for the amendment or repeal of the provisions of this Chapter or 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, 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 amendment or repeal such Bill is passed by the special majority required by Article 82. 

The 13^th Amendment consists of a general section and a new Chapter numbered as XVIIA. There are specific provisions made in respect of “amendment or repeal of this Chapter or the Ninth Schedule” in Section (2) above which accord devolution in Sri Lanka ‘constitutional status’ apart from the 13^th Amendment being part of the Constitution of the Republic.

However, it is clear from any reading of the Section (2) taken together, that the Parliament could amend or even repeal the whole chapter or the Ninth Schedule with a simple majority even at present if “every such Council agrees to the amendment or repeal.” While this has already diluted and even contradicted the general provisions of constitutional amendment and repeal under Article 82 (5), the present government’s intention is to further dilute and make all provisions of devolution the status of ‘ordinary legislation’ and not ‘constitutional status.’

According to various reports what is intended is the deletion of (2) (b) altogether and amending (2) (a) to read something like the following.

(a)   Where majority of such Councils agree to the amendment or repeal, such Bill is passed by a majority of the Members of Parliament present and voting.

The government also intends to amend Section 3 of 154G accordingly which provides additional safeguards to the devolved powers, if Bills in Parliament step into the sphere of the Provincial Councils (i.e. Divineguma Bill) intentionally or otherwise. There are no indications so far how this section would be amended. However, judging by the general intentions of the government and its anti-devolutionary allies, it would be a gross reduction of safeguards to the Provincial Councils.

Particularly in respect of Section 2 of 154G, the fundamental constitutional question would be whether any amendment proposed could contradict the general provisions of constitutional amendment or repeal and that means the required special majority under Article 82 (5) as the 13^th Amendment and Chapter XVIIA are part and parcel of the Constitution of the Republic. The special majority requirement for constitutional amendment or repeal is stipulated very clearly in Article 82 (5) as follows.

 A Bill for the amendment of any provision of the Constitution or for the repeal and replacement of the Con­stitution, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present) and upon a certificate by the President or the Speaker, as the case may be, being endorsed thereon in accordance with the provisions of Article 80 or 79.