ABOLSIHMENT OF THE 13TH AMENDMENT – ARTICLES 154G(2) AND 82 (5) OF THE CONSTITUTION ARE NOT IMPEDIMENTS TO HOLD THE REFERENDUM UNDER ARTICLES 80(2) AND 85 (1) OR ARTICLE 86
Posted on June 20th, 2013

Chanaka Bandarage, Lawyer

The procedure that needs to be followed for the amendment/repeal of any provisions of the 13th Amendment is articulated in the following two Articles of the Constitution:

  1. Article  154G (2) – this provision requires a Bill to amend or repeal any provisions of the 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. On the other hand, if “one or more Councils do not agree to the amendment or repeal” such a Bill needs to be passed by a 2/3 majority. (Article 154 G(3) is similar to 154G (2), it deals with the Provincial Government List.
  2. Article 82 (5) – 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 no less than two-third of the whole number of Members (including those not present) and upon a certificate by the Presidient or the Speaker, as the case may be, being endorsed thereon in accordance with the provisions of Articles 80 or 79.

It is clear that the 1st  part of  Article  154G (2)  (if “every Provincial Council agrees to the amendment or repeal” such a Bill could be passed with a simple majority of the members of the Parliament), contradicts with Article 82(5), which demands a 2/3 majority of the members of the  parliament. This is a serious drafting error of the Constitution (there are several such errors). No doubt if referred to the Supreme Court, it will say that the Article 82(5) prevails over Article 154G(2). This is because the Article 82 (5) clearly covers Amendments to the Constitution (Chapter 12).  Repeal of  the 13th Amendment, amounts to an amendment of the Constitution.

In our previous media Releases, the 1st time being on 21 April 2013,  we showed two Referendum Pathways to repeal 13A:

Note Articles 3 and  4 (a) of the Constitution:

(i)                 Article 3 “”…” in the Republic of Sri Lanka sovereignty is in the People and is inalienable.

 

(ii)               Article 4 “”…” “ƒ”¹…” “¦”¦. “ƒ”¹…”the Sovereignty of the People shall be exercised and enjoyed by the People at a referendum.’

Referendum Pathway 1 (this is better than the 2nd)

1. Articles 80 (2) and 85(1) process

This is a 3 stage process as follows:

(i)                 Stage 1 –   Per Article 80 (2): A Bill to abolish the 13th amendment should be put for the approval of the Cabinet of Ministers (a simple majority in the Cabinet is sufficient). The current JHU Bill, with amendments, is sufficient. The Cabinet of Ministers should issue a Certificate stating that they intend to submit the Bill for approval by the People at a Referendum.

 

(ii)               Stage  2 –   Per Article 85 (1): The President is required to submit the Bill to the people by Referendum (note,  “ƒ”¹…”shall‘ which imposes an obligation upon the President)

 If the People have voted  in favour of abolishing the 13th Amendment,  then,

(iii)             Per Article 80 (2), The President is required to issue a certificate  in the following form: “This Bill/provision has been duly approved by the People at a Referendum.” 

We previously stated that the above i), ii) and iii) stage process is sufficient to abolish the 13th amendment, and we standby this.

True, it is possible to argue that pathway 1 does not comply with Article 82(5), due to the following reason:

Article 80 (2) refers to “any Bill”, whereas Article 82 (5) is specific, and refers to “A Bill for the amendment of any provision of the Constituion or for their repeal and replacement of the Constitution ..”; and  the Article 82 (5) expressly requires a 2/3 majority vote from the parliament, which has not been complied with on this occasion.

We say this argument has no merit and it does not apply to pathway 1 (ie, Article  85(2) will not apply to same). This is due to the following two reasons:

(i)                 Although not expressly stated, Article 85 (1) covers amendments to the Constitution. We say this because the words “not being a Bill for the repeal or amendment of any provision of the Constitution;” found in  Article 85 (2) are not found in Article 85 (1).

 

(ii)               Article 80 (2) clearly states “such provision shall become law upon being approved by the People at a Referendum”.  Article 80 (2) also states that the certificate issued by the President “shall be final and conclusive and shall not be called in question in any court”.

Therefore, issue of the certificate by HE the President will lead to the abolishment of the 13th Amendment; that will also abolish all of the 9 provincial councils

 

  1. 2.      Pathway 2 “”…” Article 86

Article 86 is clear and unambiguous “”…” “The President may, “¦”¦”¦ submit to the People by Referendum any matter which in the opinion of the President is of national importance.”

Therefore, it seems Article 86 is another pathway available to HE the president to hold a  Referendum, (without the involvement of the Cabinet).

Although it is not set out in the Constitution, JR Jayewardene after he won the 1982 referendum to postpone the General Election, held under the Article 86,  referred the matter to the Supreme Court for sanction, and he obtained same. Thereafter, he passed a Bill in the Parliament with 2/3 majority.  If  JRJ method is  followed, His Excellency  the President may be able to  refer the matter to the Supreme Court for approval and pass an  Act in the Parliament with 2/3 majority. Given that the people have voted in favour of the  referendum, the members of the parliament will have to provide the 2/3 majority to pass the legislation.  Otherwise, those who fail to vote in favour of the Bill should be regarded  as “ƒ”¹…”traitors’ by the people.

 

6 Responses to “ABOLSIHMENT OF THE 13TH AMENDMENT – ARTICLES 154G(2) AND 82 (5) OF THE CONSTITUTION ARE NOT IMPEDIMENTS TO HOLD THE REFERENDUM UNDER ARTICLES 80(2) AND 85 (1) OR ARTICLE 86”

  1. Ananda-USA Says:

    The statement by M.A.Sumanthiran of the TNA (Tiger Nominated Agents), to wit:

    “ India should take “measures” to ensure that the Sri Lankan government does not succeed in robbing provincial councils of certain powers under the 13th amendment and that they, hope that India will take measures to arrest the trend and reverse the process and hold Sri Lanka to its word (of going beyond the 13th amendment)”

    is a CLEAR CASE of HIGH TREASON by a Sri Lankan citizen, in that it INVITES INTERVENTION by a FOREIGN POWER in the INTERNAL AFFAIRS of Sri Lanka.

    In the US, such a statement by a US Citizen would be rewarded by ARREST, CONVICTION and IMPRISONMENT on the charge of HIGH TREASON. Many US citizens, including the “American Taliban” have found out to their great dismay that TREASON does not pay. Consequently, the number of such cases are VERY FEW; that is what RIGOROUS ENFORCEMENT to the FULLEST EXTENT OF THE LAW yields: DETERRENCE of others from fllowing the path of TREASON against one’s own country.

    That DETERRENCE OF TREASON is what is ABSENT in Sri Lanka today. This is NOT THE FIRST TIME that TNA leaders have committed TREASON. It started LONG AGO while their NOT-SO-ILLUSTRIOUS LEADER, the late unlamented self-styled SunGod, Velupillai Prabhakaran, who commanded their slavish obedience to TREACHERY, was waging terrorist WAR against their counttry.

    The GOSL MUST enforce the TREASON Laws already on the books, and STRENGTHEN THESE LAWS as the Organization of Professional Associations (OPA) of Sri Lanka, under Dr. Nath Amerakone’s leadership, has DEMANDED.

    The GOSL will RUE THE DAY when they FAILED TO ENFORCE the TREASON Laws, when Separatist Traitors connive, plot and orchestrate the disintegration of Sri Lanka with Foreign Powers, with IMPUNITY and FREE OF ANY FEAR OF PUNISHMENT!

    Rise Up … O Patriots of Mother Lanka …. Rise Up to DEFEND and PROTECT your Nation and your People. REPEAL the 13th Amendment and DEMOLISH the Provincial Council System COMPLETELY without delay!

  2. Ananda-USA Says:

    BanglaDesh, at least, knows how to PUNISH terrorists and murderers: DO UNTO AS DONE UNTO!

    EVEN BETTER would be to DO UNTO BEFORE BEING DONE UNTO!

    How many of the LTTE murderers captured at the end of the Eelam War have been put to DEATH for their crimes? ANSWER: NONE!

    And so, the FAILURE TO PUNISH continuing unabated in Sri Lanka, will encourage a New Generation of Terrorists to believe that they can kill with IMPUNITY!

    NO AMOUNT of Pious Pontifical Preaching or Human Compassion can Protect the People. Only the Terrible Majesty of Fair & Just Laws applied RIGOROUSLY without DELAY can Protect the innocents! VICTIMS rights MUST have higher priority over those of their TORMENTORS!

    ………………………
    Ten Bangladesh militants are condemned to death

    BBC.co.uk
    June 20, 2013

    A court in Bangladesh has sentenced 10 Islamist militants to death for assisting a suicide bombing in 2005 which killed eight people near a courthouse in the town of Gazipur.

    Police at the time described it as the country’s first suicide bombing.

    The condemned men, all members of the banned JMB militant group, showed no remorse after a judge sentenced them in a crowded Dhaka courtroom.

    The JMB man who carried out the attack was also killed.

    Prosecutors say that he was dressed in a traditional lawyers’ gown which enabled him to enter a lawyers’ office office in Gazipur – just north of Dhaka – without creating suspicion. He then detonated his explosives.

    Special public prosecutor Rafiqul Islam told the AFP news agency that the condemned men assisted the bomber in making the bomb, providing him with information and planning.

    Judge Motaher Hossain, sitting in a fast-track court set up by the government, ordered the sentences to be carried out by hanging.

    The attack was one of several of blasts carried out by the Jamaat-ul-Mujahideen (JMB) in 2005, prompting concern that the moderate Muslim-majority nation was being subjected to an insurgency similar to that being waged by the Taliban in Afghanistan and Pakistan.

    On 17 August 2005 – three months before the Gazipur attack – more than 300 explosions took place simultaneously in 50 cities and towns across the country in one day, including the capital Dhaka.

    JMB head Abdur Rahman and his deputy Siddiqul Islam, known as Bangla Bhai, were among six JMB militants hanged in 2007 for orchestrating the attacks.

    During their trial, the two men said they had targeted the judiciary because it was run by secular rather than Sharia law.

  3. Susantha Wijesinghe Says:

    ANANDA !! What you say is very true, that there is absolutely NO deterrent for Treason by Sri Lankan Traitors. The Laws are there, but nobody wants to enforce the Law.

    WHO IS SCARED OF WHOM ??

  4. Lorenzo Says:

    “NO deterrent for Treason by Sri Lankan Traitors.”

    That is why SL needs a vigilante force. Not a bunch of lunatics to do what JVP terrorists did but a CLEVER group that will target the HANDFUL of traitors.

    It ACTUALLY happened in SL not so long ago. During PEACE in 2005 LTTE Tamilnut editor was killed. Since then Tamilnut went to total dirt and never recovered. That big traitor Lasantha as killed. Just imagine his MENACE today with war crimes nonsense had the loser survived. He would have CREATED HUNDREDS OF war crimes stories.

    That will force the govt. to implement the law and SAVE them (securely in prison) than allow them to fall victim.

  5. Fran Diaz Says:

    Latest news re the Prov. Councils :

    ” Future of Sri Lanka’s provincial council system must be decided by the public -President
    Fri, Jun 21, 2013, 06:58 pm SL Time, ColomboPage News Desk, Sri Lanka.

    June 21, Colombo: The provincial council system in Sri Lanka is not a total failure and had provided many benefits, and therefore the future existence of the system should be decided by the people Sri Lankan President Mahinda Rajapaksa said today.

    Addressing the heads and chief editors of media institutions at the Temple Trees Friday, the President said although the provincial council system has been branded as a white elephant by many factions, it should be utilized to provide useful service to the public.

    However the system has been established in the country for many years and cannot be changed by sudden decisions, he added.
    The internal politics of any country is the most crucial factor than any other matter, he said, adding that the government has to consider the public opinion in taking political decisions.

    He rejected media reports about the government planning to breach agreements reached in the 1987 Indo-Lanka Accord which created the provincial council system.

    “We have not violated anything on the Indo-Lanka accord,” the President said responding to media queries.

    Expressing his views on 13th Amendment to the Constitution, President Rajapaksa said the government has appointed a Parliamentary Select Committee (PSC) for the political parties to discuss the issue and take a decision not because of the upcoming Northern Provincial Council election.

    “These amendments are not solely for the North and East. It is the rest of the Provincial Councils in the country that has to be changed and it is the view of the general public,” the President said.

    The government has proposed an amendment to the 13th Amendment to repeal the provision which empowers the President to merge two or more provinces. The revision will be presented in Parliament as an urgent bill.

    He urged the media not to entertain a wrong opinion regarding the 13th Amendment and requested all the political parties to participate in PSC and make their contribution.

    The government is well aware of the pro-LTTE political fronts that are active in local and international arena to achieve their violent objectives and therefore the international community will be informed at foreign missions level about all ideas regarding the 13th Amendment, President told the media.

    He dismissed reports which say that India had raised concerns with Sri Lanka on the 13th Amendment and said the reported visit by India’s National Security Adviser Shiv Shankar to Colombo in July is of a routine nature for discussions on the joint defence cooperation among Sri Lanka, India, and Maldives.

    Ministers Basil Rajapaksa, Susil Premajayantha, Anura Priyadarshana Yapa, Keheliya Rambukwella, S.B. Dissanayake and Secretary to the President Lalith Weeratunga also participated in the meeting”.

  6. Ananda-USA Says:

    JAYAWEWA! This is something I had STRONGLY advocated in the past to PROTECT the native people of Sri Lanka from foreign predators.

    Given the huge DISPARITY IN WEALTH between Sri Lankan citizens and those in developed countries, there is a DISTINCT POSSIBILITY that Sri Lankans would be converted from landowners into renters … in their own Motherland … just like the Hawaiins today.

    Citizenship is MEANINGLESS if the land belongs to foreigners!

    Today they would be owner-investors, tomorrow they will DEMAND citizenship as well, creating another route to citizenship dispossessing the native people!

    …………….
    Sri Lanka bans sale of state or private lands to foreigners

    ColomboPage News Desk, Sri Lanka.

    June 22, Colombo: the Sri Lankan government will prepare legislation banning the further sale of state or private land to non-citizens.

    Sri Lanka President in his capacity as the Minister of Finance and Planning has forwarded a proposal to the Cabinet of Ministers seeking approval to instruct the Legal Draftsman to draft legislation to impose restrictions on transfer of lands to foreigners.

    Accordion to the President’s proposal, transfer of state or private land by way of a sale, donation, gift, or by any other disposition to a person who is not a citizen of Sri Lanka will be prohibited.

    Further a sale cannot be sold or transferred to a company incorporated in Sri Lanka where any foreign shareholding of such Company is 50 % or above to a Foreign Company, unless exemption is granted in terms of the proposed Act.

    Under the proposed act, the state or private lands could be leased out subject to stipulations to non-citizens for a maximum period of 99 years, instead of outright sale.

    The Cabinet has given its approval to the proposed legislation.

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