23 May, 2017

Two Questions Before The Supreme Court On The Divineguma Bill

By Laksiri Fernando

Dr Laksiri Fernando

The matter before the Supreme Court in Sri Lanka as the sole legal authority in interpreting the Constitution, and its democratic procedure, in respect of the Divineguma Bill, in my opinion, is:
(1) Not only to determine whether, in the absence of an elected Provincial Council in the North, the Governor could fulfil the requirements specified in Article 154 G (3),
(2) But also in the absence of such a Council, and in the absence of “views expressed” thereon, without any special circumstances like war or natural disaster, whether the Bill that was obligatory to refer to “every Provincial Council” could be placed before Parliament for a decision, under the same provisions in the Constitution.

What is ‘supreme’ in this instance is the provision in the present Constitution, unless the Constitution is changed through due process. The relevant section of the Article on both matters is as follows with emphasis added:

“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, to every Provincial Council for the expression of its views thereon, within such period as may be specified in the reference…”

Let me deal with these two matters one after the other, of course within my competence and expertise.

Council and the Governor

First, that the Governor cannot act on behalf of the Council in this instance is so obvious. It is completely erroneous to refer the matter to the Governor by the President. The Governor simply is not the Council. The Council is an elected body of the people in that Province. The Governor is not, but appointed by the President on behalf of the Center and not the Province. Allowing the Governor to “express his views” on the matter on behalf of the Council defies the election principle of democracy in the Constitution and franchise, apart from the very clear procedure specified in the Constitution as quoted above.

The Governor may have certain legislative functions, but not on the questions of abrogating or relinquishing matters related to the Provincial Council List in the Constitution. It is a prerogative of the people in the province through their elected representatives and that is the Provincial Council. The fact that the Governor is not the proper authority to “express views” on the Divineguma Bill is already conceded implicitly by President’s Counsel, Faizer Mustapha, appearing on behalf of the Government, but “on behalf of the mediatory petitions,” according to the Colombo Page news (22 October 2012). “There was no need for the President to direct it to the Northern Province which has no Provincial Council,” he has pointed out.

Absence of the Council 

Then why did the President refer the Bill to the Governor or the Northern Province? “But the President has directed the Bill to the Northern Province with the intention of safeguarding democracy,” the same Counsel has pointed out. Yes, “safeguarding democracy” is important, but through the correct procedure. Otherwise it is not democracy.
The absence of the Provincial Council in the North is not by accident or by special circumstances such as ‘war or natural disaster.’ The President has failed to direct the Commissioner of Elections, for some reason, to hold elections for the Northern Provincial Council since the end of war in May 2009, now for more than three years.

In the absence of their Provincial Council, the people in the North are denied of “expressing their views” on this important bill of Divineguma either way, for or against. This is not only a denial of fundamental right, that the people of other provinces have already exercised (i.e. discriminatory), but also jeopardize the correct procedure that has to be followed in the case of bills such as Divineguma.

There are arguments that by approving the Divineguma Bill in Parliament by two third majority, this impasse can be solved. This presumes two erroneous conditions. First, the situation of in fact the ‘absence of the Council’ is equivalent to the ‘disapproval of the bill’ by the Northern Provincial Council! This is an absurd presumption to make, to say the least.
Second is that the Divineguma Bill could ‘necessarily’ be passed with two thirds majority in Parliament. This is simply an unknown or incorrect presumption to make. In case, the bill fails to seek two thirds majority, and in case the ‘will of the people’ in the North is to approve the Divineguma Bill, then the presumption negates democracy, to say the least.
There are no short cuts to democracy. The holding of elections for the Northern Provincial Council, in my opinion, is imperative.

*The writer is former Senior Professor in Political Science and Public Policy, University of Colombo, and currently Visiting Scholar, University of Sydney.

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Latest comments

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    It is important to learn the legal nuances, they will shape, influence and affect the behaviour of people, who respect the law. But what happen when the paramount source of executive power, the administration itself, is clearly using any possible means to control and enhance its authority. The massacre of thousands of civilians, the assault of member of the judiciary power, the intimidation to journalists: all these moves are clearly beyond the law. The honest people of Sri Lanka will be affected by changes in the constitution, thugs won’t.
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      Then the honest people had better get together and protest on the street – then the others will see and join. Online protest can’t be seen by enough people
      • 0
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        Divineguama is NOT the way to do poverty alleviation which it claims to be doing. It creates a GIGANTIC INSTITUTIONAL structure instead of streamlining and doing targeted cash transfers (using new technologies), for poverty alleviation for those in need of help, especially GIVEN GREATLY REDUCED POVERTY NUMBERS in Sri Lanka. The Divineguma, as its proposed gigantic institutional structure shows, is really a slush fund for Basil Rajapakse to cultivate patron client relationships to “win” elections and is a complete SHAM from the point of view of real poverty alleviation! Shame that the Poverty think tanks have not gone to court on this matter of how Divineguam generate further socio-economic discrimination, marginalization and inequality because of the DENIAL OF THE RIGHT TO INFORMATION and its politicized nature and attendant lack of transparency and accountability. The Colombo 7 Center for poverty and other NGOs are a disgrace and show a poverty of knowledge and commitment!
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          The Divinaguma Bill is similar to the 10000 Tank Restoration Programme of the JVP to keep their Party cadre fed and tethered. Similarly the Rajapaksas believe keeping the Party cadre fed and intact as Elections can not be rigged all the time and specially at the next Presidential Elections.
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    It is absurd to argue that the Governor represents the Provincial Council of the North. Faizer Mustapha seems to agree but thinks the President did so as a gesture to democracy. How can the Governor represent the people of Jaffna?If the President wants democracy he should establish the Provincial Council for the North. Why object to this Bill. Because it empowers the Minister and eliminates the people of the Northern Province as well as elsewhere, from any decision regarding the disbursement of funds under its programs. The Bill does not empower the people but the Minister and the cohort of ruling party politicians. Is this democracy? Tell it to the marines.
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    Prof. Laksiri fernando, Can you please clarify your conclusions in this article in terms of the following decision by the Supreme Court in 1987? “IN RE THE THIRTEENTH AMENDMENT TO THE CONSTITUTION AND THE PROVINCIAL COUNCILS BILL SUPREME COURT. S. SHARVANANDA, C.J., R. S. WANASUNDERA, J., P. COLIN-THOME, J., K. A. P. RANASINGHE, J., E. A. D. ATUKORALE, J, H. D. TAMBIAH, J., L. H. DE ALWIS, J., O. S. M. SENEVIRATNE, J., AND H. A. G. DE SILVA, J., S. C. 7/87 (Spl) TO S.C. 48/87 (Spl). S.D. No. 1/87 & S.D. No. 2/87 OCTOBER 22, 23, 26, 27, 28, 29 AND 30, 1987. Thirteenth Amendment to the Constitution-Provincial Councils Bill-Presidential Reference-Articles 18, 76, 83, 120, 121, and 138 of the Constitution-Referendum-Chapter XVIIA, Articles 154A to T. The President referred two Bills entitled “Thirteenth Amendment to the Constitution A Bill to amend the Constitution of the Democratic Socialist Republic of Sri Lanka” and Provincial Councils Bill” to the Supreme Court under Article 121 of the Constitution. The Thirteenth Amendment sought to amend the provisions in the Constitution relating to language (Article 18), jurisdiction of the Court of Appeal by addition of jurisdiction to review orders of the High Court made in its new appellate jurisdiction (Article 138 (1) and by the addition of a new Chapter XVIIA and Articles 154A to 154T relating to the executive, administrative and legislative powers of Provincial .Councils and the power of amendment, overriding or repealing them vested in Parliament. Determination: (Per Sharvananda, C.J., Colin-Thome”. J., Atukorale, J. and Tambiah, J.) Neither the Provincial Councils Bill nor any provisions of the Thirteenth Amendment to the Constitution requires approval by the People at a Referendum by virtue of the provisions of Article 83. Once the Bill is passed by a 2/3 majority and the Constitution amended accordingly the Provincial Councils Bill will not be inconsistent with the so amended Constitution. The Unitary character of the State of which the characteristics are the supremacy of the central Parliament and the absence of subsidiary sovereign bodies remains unaffected. The Provincial Councils do not exercise sovereign legislative power and are only subsidiary bodies exercising limited legislative power subordinate to that of Parliament. Parliament has not there by abdicated or in any manner alienated its legislative power. Delegated legislation is legal and permitted and does not involve any abandonment or abdication of legislative power in favour of any newly created legislative authority. The concept of devolution is used to mean the delegation of Central Government power without the relinquishment of supremacy. Devolution may be legislative or administrative or both and should be distinguished from decentralisation. The scheme of devolution set out in the Bills does not erode the sovereigity of the People and does not require the approval of the People at a Referendum.” Dr.Rajasingham Narendran
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      Dr Narendran Reading only a part of a judgement is very dangerous. What the SC said was that Parliament is has the ultimate power. It also said that requiring Parliament to pass a Bill (on a subject in the Provincial Council List) that has not been consented to by one or more PCs by a 2/3 majority if that Bill is to apply in the provinces that have not consented is by no means a diminution of that power. The Court stated as follows: “In regard to legislative power, although there is a sphere of competence defined by the two Bills both in respect of matters set out in the Provincial list and in respect of matters set out in the concurrent list within which a Provincial Council can enact statutes, this legislative competence is not exclusive in character and is subordinate to that of Central Parliament which in terms of Article 154G(2) and 154G(3) can, by following the procedure set out therein, override the Provincial Councils. Article 154G conserves the sovereignty of Parliament in the legislative field. Parliament can amend or repeal the provisions in the Bill relating to the legislative authority of the Provincial Councils. The Provincial Council is dependent for its continued existence and validity and for its legislative competence in respect of matters in the Provincial list and in the concurrent list on Parliament. It was submitted by the Petitioners that Articles 154G (2) and (3) restrict the legislative powers of Parliament in respect of matters in the Provincial Council list and the concurrent list. In our view Articles 154G (2) and (3) do not limit the sovereign power of Parliament. They only impose procedural restraints. The Privy Council in Bribery Commissioner v Ranasinghe, has relevantly observed- “A Parliament does not cease to be sovereign whenever its component members fail to produce among themselves a requisite majority e.g. when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is only a bare majority if the Constitution requires something more. The minority are entitled under the Constitution of Ceylon to have no amendment of it which is not passed by a 2/3 majority. The limitation thus imposed on some lesser majority of members does not limit the sovereign powers of Parliament itself, which can always, whenever it chooses, pass the amendment with the requisite majority.” No abridgment of legislative sovereignty is involved when rules prescribe as to how legislative authority can be exercised. Article 154G(2) and (3) merely set out the manner and form for the exercise of its legislative power by Parliament to repeal or amend the provisions of Chap. XVIIA and the Ninth schedule or to legislate in respect of any matter included in the Provincial Council List.” So, while Parliament has ultimate legislative power, there are certain procedural restaints (2/3 majority) to be followed when overriding the wishes of a PC.Unitary State does not mean that the Centre can do any thing and everything unilaterally, as the SC explained. The Northern PC has not consented. Surely, the Governor who is an appointee of the President and not an elected official cannot speak on behalf of the people of the North.
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      Dr Narendran, The following is my view quoting both you and ‘malidissa’ on SC decision in 1987. I thank both. It is true that the Court upheld that “The Provincial Councils do not exercise sovereign legislative power and are only subsidiary bodies exercising limited legislative power subordinate to that of Parliament. Parliament has not there by abdicated or in any manner alienated its legislative power.” It is also true that “in respect of matters set out in the Provincial list and in respect of matters set out in the concurrent list within which a Provincial Council can enact statutes, this legislative competence is not exclusive in character and is subordinate to that of Central Parliament.” Parliament can override the Provincial Councils but “in terms of Article 154G(2) and 154G(3)” most importantly “by following the procedure set out therein.” By following the procedure does not mean the abdication or alienating of its supremacy. ‘Malidissa’ has quoted the relevant section in full. To me, the procedure that was or is not followed is not only about the Governor erroneously consenting to the Bill, but also about the Northern Provincial Council either consenting or dissenting to the Bill. Parliament should not or cannot bulldoze the procedure, unless the procedure is amended through due process. Laksiri Fernando
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    Laksiri Fernando I want to make my own interpretations based on my understanding of the Constitutional provisions. The Parliament has still not consulted with the Northern Provincial Council. Whether NPC agrees or disagrees is a subsequent development. The passing of the bill by a simple majority or a special majority comes in later.154G 2 and 3 Consulting with NPC is prerequisite Consulting with all the Provincial condition is mandatory-the necessary condition. When there is no Provincial Council it automatically follows you have not consulted. Therefore it cannot even be brought to Parliament. The government must wait for the election and constituting the NPC before going any further unless the Constitution is amended. But even for amending the Constitution or 13A you need properly constituted NPC. Further for abolishing the entire 13A, you need the properly constituted NPC. The government has come to a dead end The only solution for the government is to hold elections to NPC first
  • 0
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    Unearthing or even exposing all the constitutional lapses and discrepancies to implement Divi Neguma bill, says pretty clearly that the Majority of this forum sounds very technocratic and anti Divi Neguma lobbying. Those who want to keep Northern Sri Lankan Tamils isolated and deprived of being prospered, have exploited the loopholes of the constitution and solicited Supreme Court to stop this new bill. As we all Sri Lankans are getting the easy accessibility to reach out each other, some handful of pro LTTE opportunists are getting scared of these new ties with the south. These groups want to keep the poverty below the accepted level in order to put them in a show case to market in front of the Global Tamil Diaspora and sympathizers to fund raise. Talking of the 13th. Amendment, Throughout the post independent era, we have signed so many treaties without foreseeing the outcome to the national unity. Giving distinct regional autonomy based on language, culture, or even ethnicity is a paradox to a unified Sri Lanka. It facilitates greater division as each enclave does mind only the going concern of its affairs and creates so called rivalry with the rest of the island. We can take Indian Central Government as a tested example. Issues like Assam, Kashmir, and even Tamilnadu are holding the central government at gun point to activate their regional political agenda. In Sri Lanka, we must not have same Indian scenario with the North and the East by implementing further the Indian drafted 13th. Amendment. Instead, Sri Lanka should encourage a strong participation of those differences at the National Government. Sound policies like one country with different languages and cultures are meticulously over viewed, drafted, and implemented.
  • 0
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    There is no need to explain in pages on legality of Divineguma as it is a highway robbery of public funds and the authority of spending those funds is falling on one person that is ultimately on President. And for sure whatever the constitution and whatever the so called sections of constitution this dictatorial regime stick to the Divineguma by forces of unlawful means. As in the history these type of regimes could not be removed or stopped by constitutional laws or judicial means but by people’s power which is very late to come by.
  • 0
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    Any government in past which tried to do some betterment for the people; there are many go against it for the sake of being in the opposition. Most of the comments are just against the president or the government because they are in different political views. And it is a right of them. During the period of President Premadasa some people were against him. But he introduced Janasawiya, Sameta Sevana housing projects etc to upraise the poor. After his death every one impresses his projects. The Present government is also trying to do the same to up lift the lives of poor and the battement of the people. If the existing constitution is objecting it; the time has come for a constitution amendment on behalf of the people of the nation

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