By Jayampathy Wickramaratne –

Dr Jayampathy Wickramaratne PC

The determination of the Supreme Court on the Colombo Port City Economic Commission Bill was that as much as twenty-six provisions of the Bill were inconsistent with the Constitution and required to be passed by a two-thirds majority in Parliament. The Court, comprising Chief Justice Jayasuriya and Justices Aluwihare, Priyantha Jayawardena, Murdu Fernando and Janak De Silva, further determined that nine provisions of the Bill also required the approval of the People at a referendum.

Among the grounds of challenge was that the Bill effectively undermined the sovereignty and territorial integrity of Sri Lanka and infringed on the sovereignty of the People. It was argued that several provisions undermined the legislative power of the People reposed on Parliament. Several provisions were challenged as violating fundamental rights of the People and consequently violating Article 3, read with Article 4(d) of the Constitution. Another ground of challenge was that the Bill contained provisions that dealt with subjects that fall within the ambit of the Provincial Council List and thus had to be referred to every Provincial Council for the expression of its views thereon as required by Article 154G(3).

Applicable constitutional provisions

Article 3 of our Constitution recognises that “[i]n the Republic of Sri Lanka, sovereignty is in the People and is inalienable”. Article 3 further provides that “Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 3 is entrenched in the sense that a Bill inconsistent with it must, by virtue of Article 83, be passed by a two-thirds majority in Parliament and approved by the People at a referendum.

Article 4, which lays down the manner in which sovereignty shall be exercised and enjoyed. For example, Article 4(d) requires that “fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”. Article 4 is not listed in Article 83 as a provision that is entrenched. In its determinations on the Eighteenth Amendment to the Constitution Bill, 2002 and the Nineteenth Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court (Chief Justice Sarath N. Silva and Justices Wadugodapitiya, Shirani Bandaranayake, Ismail, Edussuriya, Yapa and J.A.N. De Silva) noted with approval that the Court had ruled in a series of cases that Article 3 is linked up with Article 4 and that the said Articles should be read together. This line of reasoning was followed by the Court in its determination on the Twentieth Amendment to the Constitution Bill.

Under Article 154G(3), Parliament may legislate on matters in the Provincial Council List but under certain conditions. A Bill on a matter in the Provincial Council List must be referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon. If every Council agrees to the passing of the Bill, it may be passed by a simple majority. But if one or more Councils do not agree, a two-thirds majority is required if the law is to be applicable in all Provinces, including those that did not agree. If passed by a simple majority, the law will be applicable only in the Provinces that agreed.

Violation of fundamental rights and need for a referendum

Several petitioners alleged that certain provisions of the Port City Bill violated fundamental rights. The rights referred to were mainly Article 12(1)—equality before the law and equal protection of the law, Article 14(1)(g)—freedom to engage in a lawful occupation, profession, trade, business or enterprise— and Article 14(1)(h)—freedom of movement. Some petitioners specifically averred that provisions that violated fundamental rights consequently violated Articles 3 and 4 and thus needed approval at a referendum.

The Supreme Court determined that several provisions of the Bill violated various fundamental rights and thus required to be passed by a two-thirds majority in Parliament. The question of whether the said provisions consequently violated Article 4(d) and thus Article 3 and therefore required the approval of the People at a referendum was not ruled on.

The Essential Public Services Bill, 1979 was challenged as being violative of both Article 11 (cruel, degrading or inhuman punishment) and Article 14. Mr. H.L. de Silva, one of the best constitutional lawyers Sri Lanka had, argued that a Bill that violates any fundamental right is necessarily inconsistent with Article 4(d) and, therefore, with Article 3. Such a Bill has to be approved at a referendum as well. The Supreme Court (Chief Justice Samarakoon and Justices Thamotheram, Ismail, Sharvananda and Wanasundera) held that the Bill violated Article 11 but not Article 14. Since a Bill that violates Article 11 has, in any case, to be approved at a referendum as Article 11 is listed in Article 83, the Court declined to decide on whether the Bill offended Article 3 as well, as it “is a well-known principle of constitutional law that a court should not decide a constitutional issue unless it is directly relevant to the case before it.” The offending provision was deleted, and a referendum avoided.

A clear decision on the issue came about in the case of the Eighteenth Amendment to the Constitution Bill, 2002, when the seven-member Bench referred to earlier held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12(1) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.

The Twentieth Amendment to the Constitution Bill sought to restore the immunity of the President in respect fundamental rights applications that had been taken away by the Nineteenth Amendment. The Supreme Court (Chief Justice Jayasuriya and Justices Aluwihare, de Abrew, and Malalgoda, with Justice Priyantha Jayawardene dissenting) determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.” The restoration of immunity would need the approval of the People at a referendum, the Court held.

In the case of the Port City Bill, however, the Supreme Court only determined that certain provisions of the Bill violated fundamental rights and thus required a two-thirds majority but did not go further to say that the offending provisions also required the approval of the People at a referendum. Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament.

However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People, by using such majority. It is respectfully submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated and a referendum is necessary, as it did in the cases mentioned.

The need to refer the Bill to Provincial Councils

The Port City Bill had not been referred to the Provincial Councils, all the Provincial Councils having been dissolved. The Court, following earlier decisions, held that in the absence of constituted Provincial Councils, referring the Bill to all Provincial Councils is an act that could not possibly be performed.

In the case of the Divineguma II Bill, the question arose as to the applicability of the Bill to the Northern Provincial Council, which was not constituted at that time. The Court held while the Bill cannot possibly be referred to a Council that had not been constituted, the views of the Governor (who had purported to express consent) could not be considered as the views of the Council. In the circumstances, the only workable interpretation is that since the views of one Provincial Council cannot be obtained due to it being not constituted, the Bill would require to be passed by a two-thirds majority. Although not explicitly stated by the Court, this would mean that if the Bill is passed by a simple majority only, it will not apply in the Northern Province. The Bill was passed in Parliament by a two-thirds majority. The Divineguma II Bench comprised Chief Justice Shirani Bandaranayake and Justices Amaratunga and Sripavan. It is well-known that the Divineguma II decision and the decision on the Divineguma I Bill, where Chief Justice Bandaranayake and Justices Dep and Eva Wanasundera held that the Bill should have been referred to the Provincial Councils, cost Chief Justice Bandaranayake her position.

In the case of the Port City Bill, the Supreme Court stated that it was not inclined to follow the determination in the Divineguma II Bill.

It is submitted that Article 154G (3) has two requirements—one procedural and one substantive. The former is that a Bill on any matter in the Provincial Council List must be referred to all Provincial Councils. The latter is that in the absence of the consent of all Provincial Councils, the Bill must be passed by a two-thirds majority if it is to apply to the whole country. If such a Bill is passed only by a simple majority, it would apply only in the Provinces which had consented.

The Divineguma II determination accords with the ultimate object of Article 154G(3), namely, that a Bill can be imposed on a Province whose Provincial Council has not consented to it only by a two-thirds majority. It also accords with the spirit of devolution. It is submitted that where a Bill cannot be referred to a Provincial Council for the reason that it is not constituted and thus the procedural requirement cannot be fulfilled, the substantive requirement must be considered unfulfilled. 

A necessary consequence of the Court’s determination on the Port City Bill is that it permits a government to impose a Bill on a Provincial Council matter on a “disobedient” Province by a simple majority once the Provincial Council is dissolved and before an election is held. What is worse is that at a time when all Provincial Councils are dissolved, such as now, a Bill that is detrimental to devolution can be so imposed on the entire country by a simple majority. It is submitted that this issue should be re-visited when the next Bill on a Provincial Council matter is presented to Parliament and the Supreme Court invited to make a determination that accords with the spirit of devolution, which is an essential part of the spirit of our Constitution.