Executive Presidency: What the 13A SC Determination really said – Part II
Posted on May 14th, 2018

By C. A. Chandraprema Courtesy The Island

(Continued from yesterday)

Of the five separate determinations given by the nine judges of the Supreme Court, the lengthiest was Justice R. S. Wanasundera’s dissenting determination. This is also the determination most often referred to by nationalists who claim that the executive presidency is a sine qua non to preserve the unitary character of the state in the face of the devolution of power and the provincial councils system that was forced upon us by India. However, in wading through Justice Wanasundera’s lengthy arguments, it becomes clear that he never said that the unitary state would cease to exist without the executive presidency. In fact, he spoke much less about the executive presidency than Justices Sharvananda, Colin-Thome, Atukorale and Tambiah did in their joint determination.

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President J.R. Jayawardene and Prime Minister Rajiv Gandhi signing the Indo-Lanka Peace Accord which paved the way for the 13th Amendment

The first concern that Justice Wanasundera had was about the legislative power of Parliament. He pointed out that under Article 76(1) of the Constitution, Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with any legislative powers. His contention was that even though the propounders of the 13th Amendment argue that the Statutes made by the Provincial Councils are in fact subordinate legislation, no less than 37 subjects with their sub-divisions have been allocated to Provincial Councils on which they can legislate without any guidelines of policy being imposed by the centre. Furthermore, Justice Wanasundera stated that the 13th Amendment had sought to place the legislative powers of Provincial Councils as far beyond the reach of Parliament as possible. While a Provincial Council with a simple majority can legislate on matters coming under the provincial councils list, Parliament which originally had this power of legislation and which it could have done with a bare majority, now needs a two-thirds majority and a Referendum as well under the provisions of clause 154G(3)(b). Justice Wanasundera saw this as a renunciation and alienation of Parliament’s plenary powers over legislation. Therefore he argued that what is sought to be granted to a Provincial Council is not the type of subordinate legislation mentioned in Article 76(3) but full- blooded legislative power. (It will be recalled that for any change to be made in the Provincial Councils Chapter or the Ninth Schedule of the Constitution, a two thirds majority in Parliament plus approval at a referendum was required under clause 154G(2)(b). This too had the effect of placing the legislative powers of the Provincial Councils as far beyond the reach of Parliament as possible.)

Consistency with existing provisions questioned

Justice Wanasundera also made some observations on the President and the provincial Governors which were quite different to the views held by the other judges. He pointed out that under Article 154B, the provincial Governors are to be be appointed by the President and to hold office during the pleasure of the President. Justice Wanasundera regarded this not as an appointment but an ‘illegal’ de-routing or relinquishing of the Executive power committed to the President. The Governor has the usual powers of summoning, proroguing and dissolving the Provincial Council as in a Westminster type of Constitution. He argued that this delegation of the President’s power has by-passed the existing Cabinet machinery.

He argued that if the Cabinet system is fundamental to our system of government, then this delegation and relationship between the President and the Governor both ways is wholly illegal. It violates a basic feature of our Constitution, namely, government with the aid of the Cabinet and Parliament. Justice Wanasundera argued that such a fundamental change can only be effected by a Bill passed with a two thirds majority in Parliament and approved by the people at a Referendum. Furthermore he stated that clause 154H (4) which vests the President with discretion in deciding whether or not to refer a question of the validity of a Provincial Council Statute to the Supreme Court relates to the exercise of judicial power by an executive officer and contended that this also makes the Bill inconsistent with the Constitution, requiring that it be passed with a two thirds majority in Parliament and approved by the people at a Referendum in terms of Article 83 of the Constitution. Justice Wanasudera opined that the President exercises the executive powers of the State as an agent or trustee of the people. Although the President is permitted to delegate it to the Cabinet and subordinate public officers, he ‘did not think’ the President is authorised to alienate or abandon or renounce it. The Governor to whom the executive power in the province is delegated is an appointee of the President and can really exercise on his own behalf or on behalf of the President only the discretionary powers vested in him. The governor, is bound in law to accept and sanction decisions of the Board of Ministers and is given no discretion in the matter. Even in appointing the Chief Minister and the other Ministers clause 154F(4) shows that where the party system operates and a party obtains a majority in the Provincial Council elections, the Governor has no option but to appoint the leader of that political party as the Chief Minister and his nominees as the other Ministers.

The Governor merely sanctions what the law has provided for. So in reality, the substantive executive power exercised in a Provincial Council emanates from below and does not in fact constitute a devolution of power coming from above from the President. The executive, power relating to a Provincial Council is therefore broken at a dividing point, one purporting to devolve from the President and the other arising from the elected members of the Provincial Council. The effect of this is that such executive power vested in the President is relinquished and a complex arrangement devised to cover up and cloud, the real nature of the transaction. If the Executive power of the People can be renounced in this manner,” serious questions regarding the proper administration of the country could arise. Justice Wanasundera stated that at the bare minimum, legislation permitting such a renunciation must have the approval of the People at a Referendum.

From what Justice Wanasundera said above about the executive and the powers of the President and the Governors, we see that he was only raising a legalistic argument about the President appointing Governors bypassing the cabinet, and the Governors having to exercise their executive powers in a kind of Constitutional strait jacket.

He was questioning only the strict legality of these provisions and he himself stated that the way to make these provisions legal would be to pass the amendments with a two thirds majority in Parliament and get them approved by the people at a refendum. He never said that rectifying what in his view were legal snags in the provisions relating to the President and the Governors would mean the end of the unitary state.

As in the case of the other judges, the main concern of Justice Wanasundera was the legislative power of Parliament vis a vis that of the Provincial Councils. He observed that the Provincial Councils are empowered to enact statutes applicable to the province with respect to the Provincial Council List and the Concurrent List set out in the Ninth Schedule. Clause 154G(5)(a) states that Parliament can make laws with respect to matters in this list after such consultation with all Provincial Councils as Parliament may such consider appropriate in the circumstances of each case. Similarly, clause 154G (5)(6) states that a Provincial Council can make law in respect of such matters after such consultation with Parliament as it may consider appropriate in the circumstances of each case. Justice Wanasundera stated that what is meant by ‘consultation’ with Parliament can only mean a resolution of Parliament by a majority vote. Thus the powers of Parliament can be eroded and such powers given to, a Provincial Council on a mere majority vote. The wording of the two Article’s is identical and gives a parity to the two authorities as regards law-making power and places a fetter on Parliament’s plenary power.

Clause 154G(3)(b) contains a similar provision essentially prohibiting Parliament from passing any Bill in respect of any matter set out in the Provincial Council’s list by requiring a two thirds majority in Parliament and a referendum to enable Parliament to do so if one or more Provincial Councils does not approve of the proposed amendment. These Provisions give an insight into the nature and quality of the legislation made by Provincial Councils and that there was no doubt that statutes made by Provincial Councils have the dignity and quality of primary legislation. That in a nutshell was what Justice Wanasundera had to say about the 13th Amendment.

Main consideration was legislative power

A perusal of his dissenting determination will reveal that he never said that the executive presidency was what kept the unitary state together. Like all the other judges, Justice Wanasundera was also more concerned about the legislative power than the executive power. In retirement, Justice Wanasundera worked closely with the nationalist movement and it is vital to understand what he said and did not say in this most important determination.

Justice O.S.M.Seneviratne in his dissenting determination focused like everyone else on the legislative powers of Parliament. He observed that the intention of the 13th Amendment is to create a new body a Legislature, the Provincial Councils as a separate administration unit with its own Provincial Council and Governor, Chief Minister and Board of Ministers. This Amendment is silent on the executive functions of the Chief Minister and the Board of Ministers. Like Justice Wanasudera, he too raised the legalistic argument that the Governor is sharing executive power with the President which is contrary to Article 4(b) of the Constitution and that the powers of the Governor in respect of Finance, the Provincial Public Service, and Law and Order are vast.

Justice Seneviratne stated that one of the pillars of our Constitution is that the executive power of the People “shall be exercised by the President”. Article 4(b) and that there is no room for the sharing of the executive power with the President. (It should be noted that he was not saying here that the unitary character of the state would be endangered even if the executive power of the President was to be ‘shared’ as he characterized it. All that he was saying was that a sharing of executive power was not consistent with the existing provisions of the Constitution.) Like all the other judges, Justice Seneviratne also too took up the question of the limitations imposed upon the powers of parliament by the clause 154G(3)(b). While every Provincial Council may make statutes with respect to any matter set out in the Provincial Council List with a simple majority, Parliament which originally had this power of legislation and which it could have done so with a bare majority now needs a two-thirds majority and a Referendum as well to pass an Act on a subject coming under the provincial councils. Justice Seneviratne stated that he does not agree with the view put forward that the legislation passed by the provincial Councils should be classed as subordinate legislation in terms of Article 76(3) of the Constitution.

He explained that the legislative power granted to the Provinces is a kind of power that erodes the supremacy of Parliament and the People and he drew attention to the two clauses that featured prominently in all the determinations on the 13th Amendment – clauses 154G(2)(b) and 154G(3)(b). These provisions restrict, curtail and abrogate the powers of the Parliament and the People to pass laws by positing a requirement that it must be passed by two- thirds of the members of Parliament and approved by the people at a Referendum. Therefore he held that the 13th Amendment should be approved by the people at a referendum if it is to become law. Justices L.H.De Alwis and H.A.G.De Silva based their argument on Article 75 of the Constitution which provides that Parliament shall have power to make laws including laws having retrospective effect and repealing or amending any provision of the Constitution or adding any provision to the Constitution.

They pointed out however, that clauses 154G(2)(b) and 154G(3) which stipulate that no Bill for the amendment or repeal of the chapter on Provincial Councils or to pass a law on a subject coming under the Provincial Councils list shall become law if one or more provincial councils oppose them unless the Bill is passed with a two thirds majority in Parliament and approved by the people at a referendum restricted the law making powers of Parliament. They further observed that the provisions in clauses 154G(2)(b) and 154G(3)(b) constituted an addition to entrenched Article 83 of the Constitution and will therefore need to be passed by the two thirds majority referred to in Article 83 and approved by the People at a Referendum.

We see from this analysis that it was not the executive presidency that was central to the determinations on the 13th Amendment but the legislative powers of the Parliament. Clauses 154G(2)(b) and 154G(3)(b) which imposed restrictions on the legislative power of Parliament have featured in all five determinations made on the 13th Amendment and it was by amending these two clauses and dropping the requirement for a referendum that the 13th Amendment could be passed into law with only a two thirds majority in parliament. According to Articles 154G(2)(b) and 154G(3)(b) of our Constition as they are now, even if one or more provincial councils are not in agreement, Parliament can legislate on any subject coming under the provincial counsils or even repeal the entire Provincial Councils Chapter (Chapter XVIIA) in the Constitution with just a two thirds majority in Parliament. The executive presidency has been mentioned only in passing, if at all in the 1987 Supreme Court determinations on the 13th Amendment.

Concluded

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