IMPLICATIONS of REMOVAL of the CONCURRENT LIST
Posted on September 20th, 2016

By Neville Ladduwahetty

By issuing a timely statement, the National Joint Committee (NJC) has informed the public that the SLFP segment of the Joint Opposition in Parliament has in their proposals to the Steering Committee on the proposed Constitution, incorporated the removal of the Concurrent List in the 13th Amendment.  For this the country owes a debt to the NJC.  As an extension of the action taken by the NJC the material presented below addresses the consequences associated with removing the Concurrent List to deter others who may attempt the same.

Until 1987 when the 13th Amendment was introduced, Sri Lanka functioned strictly as a Unitary State with all plenary power being concentrated in the Center.  Following the brazen intervention of India and the Indo-Lanka Accord all power being concentrated in the Center ceased.  The result was the 13th Amendment being incorporated into the Constitution in 1987.  This Amendment compelled Sri Lanka to accept devolution as a power sharing arrangement between the Center and peripheral units, recognizing the Province as the peripheral unit and providing for two or more Provinces to merge.

The 13th Amendment divided Legislative powers that were exercised by the Center prior to 1987 into 3 separate Lists.

List I – The Provincial List – specified the subjects in respect of which Provinces could exercise Legislative powers.

List II – The Reserved List specified the subjects in respect of which the Center could exercise Legislative powers.

List III – The Concurrent List specified the subjects in respect of which either the Center or the Provinces could exercise Legislative powers.

The plan is to remove List III – the Concurrent List.  This would result in creating 2 distinct power centers each operating within its specified sphere of competence, and no different to a Federal arrangement except for certain procedural constraints.

CONSEQUENCES of REMOVING the CONCURRENT LIST

There were several prior attempts to remove the Concurrent List.  These attempts were and are still undertaken in the misguided belief that 2 centers of power without a Concurrent List would make division of power more straightforward and therefore less contentious.  However, the experiences of countries with Constitutions where power is divided between 2 centers of power, one at the Center (Federal) and the other at the periphery (Province or State), without a Concurrent List can be as contentious because of the inability to define constitutional boundaries in concrete terms.  Consequently, the tug-o’-war between the Center and the periphery often ends up having to seek judicial interpretations to resolve contentious issues.

On the other hand, the presence of the Concurrent List requires the Center and the Provinces to actively consult and engage in the pursuit of common interests thereby avoiding the need to seek judicial interpretations to resolve issues.  Consequently, regardless of whether the structure of the State is Unitary, quasi-Federal or Federal, countries such as Sri Lanka, India, Pakistan, Malaysia, Nigeria, Australia and South Africa are a few examples of countries that have opted to retain Concurrent Lists.  The fact that so many countries have done so must mean that it serves as a valuable safety net.  Furthermore, with the 13th Amendment being modeled on the Indian Constitution that includes a Concurrent List, there is very good reason to consider its removal with the utmost caution.

In contrast, the Federal Government at the Center in the US has managed to gain considerable power over its component States entirely by the judicial interpretation of the last paragraph of Article 1 Section 8 of the US Constitution that states: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other powers vested by this Constitution in the Government of the United States, or in any Department or Office thereof.”  This is possible because of the 2 distinct centers of power.  Opportunities for power centers to discuss and engage prevents gravitation of power invariably from the periphery to the Center.

SECURING 2/3 MAJORITIES under PROPORTIONAL REPRESENTATION 

The key feature of a Federal State is the division of powers between the Center and peripheral units and a written Constitution that specifies the exclusive powers assigned to each.  Article 2 of the Constitution Sri Lanka states that the Republic of Sri Lanka is a Unitary State”.  Despite Sri Lanka’s unitary character the 13th Amendment constitutionally divides power between the Center and the peripheral units – the Provinces, as in the case of a Federal State.  However, the powers assigned to the Provinces are not exclusive as in a Federal State.  Instead, because the State is Unitary, the powers assigned to the Provinces must necessarily be subordinate subject to certain caveats.  Furthermore, the fact that the Center could amend or repeal Provincial powers and override Provincial Statutes by means of special procedures stated in Article 154 G (2) and (3), the unitary character is consolidated.  However, such authority over Provinces could be exercised ONLY if Parliament is in a position to secure a 2/3 majority. This is small comfort because opportunities to secure 2/3 majorities are few and far between due to the current provisions of proportional representation.  Consequently, Article 154 G (2) and (3) is a thin reed” on which the Unitary State of Sri Lanka rests.

The occasion for dependence on a 2/3 majority would be much less with a Concurrent List in place because the overlapping powers compel discussion and engagement before the need arises to resort to judicial intervention.  Furthermore, such engagements underscore the unitary character of the State.  Therefore with a Concurrent List, the need to secure 2/3 majorities would be less than there would be if the Concurrent list is removed.

The near impossibility of securing a 2/3 majority under the proportionate representation scheme was conveyed by Justice J. Wanasundara in the course of his determination when he stated: “Factually speaking even the President has said recently that under the proportionate scheme, no political party would be able to secure anything more than a bare majority in the future” (Supreme Court case on The 13th Amendment to the Constitution, P. 347, 1987).  The present formation in Parliament confirms the inability to secure 2/3 majorities for any single political party.

The near impossibility of securing a 2/3 majority being a procedural restraint” was acknowledged in the determinations of the Chief Justice and 3 other Justices during the Supreme Court case cited above.  Their determination was:” the 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… In our view 154G (2) and (3) do not limit the sovereign powers of Parliament. They only impose procedural restraints”(Ibid, P.320).

The fact that such procedural restraints” would impact on the sovereignty of the People was recognized in the opinions of Justices L.H.de Alwis and H.A.G. de Silva when they stated in their determinations: “Article 154G (2) therefore imposes a fetter on the Parliament in amending or repealing Chapter XVIIA or the Ninth Schedule and thereby abridges the Sovereignty of the People in the exercise of its legislative power by Parliament, in contravention of Article 3 and 4 (a) of the Constitution” (Ibid).

The facts presented above make it crystal clear that the procedural restraint” of a 2/3 majority in Parliament is the only protection the People of Sri Lanka have to override a Provincial Statute or amend or repeal a provision in the Provincial List.  This is the fetter” referred to by Justices L.H.de Alwis and H.A.G. de Silva and the warning given by them is that whenever Parliament is unable to secure a 2/3 majority to override a Provincial Statute or amend or repeal a provision in the Provincial List, Parliament would not be in a position to protect the sovereignty of the People and prevent the contravention of Articles 3 and 4 (a) of the Constitution.

Therefore, every effort must be made to retain the Concurrent List because it is the single mechanism that could minimize dependence on 2/3 majorities and maximize opportunities for the Center and the Provinces to engage in the pursuit of common interests.  Another mechanism is the electoral process because it is the electoral process that would enable the People to elect a Parliament that could secure a 2/3 majority.

SIGNIFICANCE of the ELECTORAL PROCESS

The two factors that hinder the ability to secure 2/3 majorities is the nature of adversarial politics that exists in Sri Lanka, and the other is the proportional representation on which the electoral system is based.  This electoral system discourages the formation of significant majorities.  The irony is that while proportional representation was incorporated in the 1978 Constitution against advice to prevent runaway majorities being returned on the basis of elections based on first past the post and to encourage minority representation in Parliament, it is the very mechanism that has the potential to weaken the unitary character of the State along with the sovereignty of the People.

The physical manifestation of the importance of a 2/3 majority became evident in connection with the Divi Neguma Bill.  Since this Bill impacted on powers in the Provincial List the Supreme Court determined that either the provisions that were ultra vires the Constitution required revision, or a 2/3 majority was needed for the Bill to conform to the Constitution.  If Parliament failed to secure the needed 2/3 majority, Parliament would have become a symbol of ineffectiveness; a state described as being similar to a lame duck. The ability to secure 2/3 majorities thus becomes vital to implement legislation of significance.

This fact should therefore receive the attention it deserves when addressing ongoing constitutional reforms.  To continue to retain the existing electoral system would come at a cost that could affect the core values on which the modern Sri Lankan State is founded.  Therefore, those associated with electoral reform should bear in mind the significance of this cost.

SOVEREIGNTY and its INDIVISIBILITY

While Article 3 of the 1972 Constitution states: In the Republic of Sri Lanka, Sovereignty is in the People and is inalienable”, Article 3 of the 1978 Constitution of Sri Lanka 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”

The difference between the 1972 and the 1978 Constitution is that the 1978 Constitutions includes powers of government” as part of sovereignty unlike the 1972 Constitution that refrains from defining what sovereignty includes.  Therefore, if sovereignty is inalienable, and it includes powers of government, what are the powers of government” that could be devolved to Provincial Units without violating the inalienability of the Peoples’ sovereignty?  The 13th Amendment has addressed this issue by constitutionally devolving only Legislative powers from the Center to Provincial units and retained Executive and Judicial powers at the Center.  This arrangement does not violate the inalienability of the Peoples’ sovereignty provided the Legislative powers of Parliament are supreme and Legislative powers devolved to the Provinces are subordinate.

The material presented above clearly demonstrates that supremacy of Legislative powers over devolved powers depends on the ability of Parliament to secure 2/3 majorities to assert the inalienability of the Peoples’ sovereignty.  However, since there is no assurance that Parliament is in a position to assure 2/3 majorities at all times there could be occasions when Parliament would not be in a position to assert its supremacy.  Whenever such circumstances arise the Legislative powers devolved to Provinces would no longer be subordinate which means that there could be occasions when Provincial Statutes are on par with Parliament.  Every such occasion would be an instance where the inalienability of the Peoples’ sovereignty is violated, and the unitary character of the Sri Lankan State would cease and become a Federal State however brief that may be.

CONCLUSION

The compulsion to remove the Concurrent List is believed to be in order to appease the minority communities, in particular the Tamil community.  The consequence of such a step would be to create two distinct centers of power one in the Central Government and the others in the Provinces with each being assigned distinct Legislative powers.  Since such an arrangement has to be accommodated within a Unitary State, the powers assigned to the Provinces must necessarily be subordinate to the powers at the Center.  The constitutional provision to maintain that supremacy is Article 154 G (2) and (3).  This Article provides for the Central Government to amend or repeal powers assigned to the Provinces or to override Provincial Statutes with a 2/3 majority of Parliament.

However, it must be appreciated that every time Parliament is unable to secure the needed 2/3 majority, Parliament would cease to be supreme.  Therefore the presumed supremacy of Parliament is dependent on its ability to secure a 2/3 majority whenever the occasion demands.  Under such circumstances, Sri Lanka would be a State where powers are divided between the Central Government and the Provinces, with Judicial intervention being the only safeguard whenever either party violates the Constitution.  Such a situation approximates that of a Federal State.

This situation would be further enhanced if the Concurrent List is removed.  On the other hand, retaining the Concurrent List would provide opportunities for consultation and engagement between the Central Government and the Provinces thereby minimizing opportunities for judicial intervention.  Therefore every effort should be made to retain the Concurrent List.

This is of vital importance considering the difficulties associated with securing 2/3 majorities due to the adversarial nature of the political formations in Sri Lanka coupled with the electoral system that is based on proportional representation, also introduced to appease minority representation.  Since there is little that could be done to alter the political culture, the least that needs to be addressed is removal of the existing electoral system of proportional representation, because as long as this remains, securing 2/3 majorities would depend on violation of good governance practices, e.g., by cross-overs and/or dubious party understandings, both of which violate the Franchise of the People.

The attempt to remove the Concurrent List appears on the face of it to be innocuous.  However, the consequences challenge the vitals on which the Sri Lankan Nation and the State depend in respect of the unitary character of the State, and the inalienable sovereignty of the People.

 

Neville Ladduwahetty

September 11, 2016

 

2 Responses to “IMPLICATIONS of REMOVAL of the CONCURRENT LIST”

  1. Dilrook Says:

    Retaining the concurrent list is only a plaster solution. The right thing to do is to abrogate 13A altogether.

    People must rally around politicians that openly promise to abrogate 13A and reject everyone else. That includes politicians that refuse to remove 13A with the ‘war is unwinnable’ mentality.

  2. Fran Diaz Says:

    What Mr Laduwahetty has pointed out is very important.
    He shows that there is constant and ongoing tampering with the existing Constitution. Even though the 13-A is ILLEGAL, even this illegal piece of law is being tampered with to the detriment of the Unitary status of the country.

    The 13-A is ILLEGAL because it was imposed under DURESS by INDIA on the JRJ govt in 1987.

    The 13-A is a most divisive and unsuitable piece of legislation for Lanka.

    It is a piece of legislation that suits vast land area countries such as India (1.3 Million sq miles in size) or USA (3.8 Million sq miles in size).

    Removing the 13-A is the best thing to be done for the People of Lanka !!

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