By C. A. Chandraprema Courtesy The Island

May 13, 2018, 10:11 pm

Nationalistic groups in this country believe that the institution of the executive presidency is a sine qua non for the preservation of Sri Lanka’s unitary character in the face of the provincial councils system. This idea largely stems from what is believed to have been stated in the Supreme Court determination of 1987 on the 13th Amendment Bill. Some appear to believe that Justice R. S. Wanasundera’s dissenting determination had said that after the introduction of the provincial councils system, the only thing that now preserves the unitary state is the executive presidency. For the past thirty years, this view has held sway among nationalists and continues to do so, today.

It was recently stated at a political gathering that when the 13th Amendment was taken up by the Supreme Court back in 1987, four judges said that it undermines the unitary character of the state and four other judges said that the unitary character of the state will remain unimpaired. It was said that one of the main arguments put forward by the latter group of judges was that since the executive president is elected by all the voters in the country and since the executive power of the President holds sway throughout the country via the cabinet, and the governors, Sri Lanka remains a unitary state and that it is the executive presidency that holds everything together.

This has now solidified into an article of faith among nationalists. However, what exactly did the 1987 Supreme Court determination on the 13th Amendment say? Did any judge really say that it was the executive presidency that ensured the unitary character of the Sri Lankan state after the introduction of the provincial councils system? In 1987, the petitions against the 13th Amendment were heard before a full bench of the Supreme Court comprising of Chief Justice S. Sharvananda and Justices R. S. Wanasundera, P. Colin-Thome, K. A. P. Ranasinghe, E. A. D. Atukorale, H. D. Tambiah, L. H. DE Alwis, O. S. M. Seneviratne, and H. A. G. DE Silva.

The nine judges delivered five determinations with Chief Justice Sharvananda and Justices Colin-Thome, Atukorale and Tambiah delivering one determination and Justices Wanasundera, Ranasinghe and Seneviratne each delivering separate determinations and Justices Alwis and Silva delivering a joint determination. What enabled the passage of the 13th Amendment with only a two thirds majority in Parliament and without a referendum was Justice Ranasinghe’s determination coming into line with the joint determination delivered by Chief Justice Sharvananda and Justices Colin-Thome, Atukorale and Tambiah with the amendment of one clause which the former had held requires a referendum. Thus the determination of the full bench of the Supreme Court on the 13th Amendment was divided 5 to 4.

Legislative power was fundamental

However in carefully reading through the five separate determinations given on the 13th Amendment, we see that none of the Judges had said that the executive presidency was the factor that safeguarded the unitary character of the country in the face of the provincial councils system. In delivering their determination Chief Justice Sharvananda and Justices Colin-Thome, Atukorale and Tambiah considered the question whether the introduction of a provincial councils system undermined the unitary character of the Sri Lankan state enshrined in Article 2 of the Constitution. They concluded that the essence of a unitary state is that sovereignty should remain undivided and the powers of the central government should be unrestricted.

They identified the two essential qualities of a unitary state to be firstly, the supremacy of the central Parliament and secondly the absence of subsidiary sovereign bodies. Subsidiary law-making bodies may exist but it should be possible to abolish them at the discretion of the central authority. In a federal state on the other hand, the field of government is divided between the federal and state governments which are not subordinate one to another, but are co-ordinate and independent within the spheres allotted to them. The federal government is sovereign in some matters and the state governments are sovereign in others. It was observed that in the exercise of legislative as well as executive powers no exclusive or independent power is invested in the Provincial Councils and the Parliament and President have ultimate control over them.

The most contentious provision in the 13th Amendment Bill which was discussed in all five determinations were clauses 153G (2)(b) and 153G (3)(b). What clause 154G(2)(b) stipulated is that a Bill for the amendment or repeal of the provincial councils Chapter or the Ninth Schedule in the Constitution shall become law only if such Bill has been referred by the President to every Provincial Council for the expression of its views. If every Council agrees to the Bill, it can be passed by a majority of the members of Parliament present and voting. However where one or more Councils do not agree to the Bill it has to passed with a two thirds majority of the whole number of Members in Parliament (including those not present) and also approved by the people at a referendum.

Clause 154G(3)(b) stipulated that no Bill on any matter in the Provincial Councils list can be passed by Parliament unless it has been referred by the President to every Provincial Council for the expression of its views and if every provincial Council agrees to the passing of the Bill, it can be passed by a majority of the members of Parliament present and voting. But if one or more Councils do not agree to the Bill, it has to be passed with a two thirds majorityof the whole number of Members (including those not present) and also approved by the people at a referendum.

The conclusion that Chief Justice Sharvananda and Justices Colin-Thome, Atukorale and Tambiah came to with regard to these two contentious clauses was that the central parliament can, by following the procedure set out in Articles 154G(2)(b) and 154G(3)(b) override the provincial councils. They opined that these two clauses do not limit the sovereign power of parliament but only impose procedural restraints.

Furthermore they saw the requirement of a referendum in these two clauses not as an impediment to the power of parliament but as an acknowledgement and affirmation of the sovereignty of the people.

President and Governor in India and SL

To buttress their argument that the provincial councils are subordinate to the central government under the proposed 13th Amendment, Chief Justice Sharvananda and others pointed out that the provincial Governor is appointed by the President and holds office during the pleasure of the President and that the President remains supreme or sovereign in the executive field. They drew reference to Clauses 154C and 154F of the 13th Amendment Bill which provided that the executive power pertaining to matters coming under the Provincial Councils shall be exercised by the Governor of the Province either directly or through the Board of Ministers or through officers subordinate to him.The board of four Ministers with the Chief Minister at the head were to aid and advise the Governor in the exercise of his functions. The Governor was obliged to act in accordance with such advice, except in so far as he is required by the Constitution to exercise his discretion.

If any question arises as to whether the Governor is required by the Constitution to act at his discretion, the decision of the Governor shall be final and the validity of anything done by the Governor shall not be called into question in any Court. The exercise of the Governor’s discretion shall be on the President’s directions. The question whether any, and if so what, advice was tendered by the Ministers to the Governor could not be inquired into by any court. This was by far, the most extensive reference to the presidency in the five determinations on the 13th Amendment. It will be noted that all the powers of the President and the Governors mentioned by Chief Justice Sharvananda and the others are to be found word for word in the Indian Constitution as well. However India does not have an executive president. What they have is a ceremonial President with certain discretionary powers. Justice Wanasundera in his determination in fact observed that some of the discretionary powers available to the Indian ceremonial President vis a vis the States such as the power to veto statutes passed by the States (Articles 200 and 201 of the Indian constitution) have not been made available to the executive President in Sri Lanka through the 13th Amendment.

Articles 52, 53(1), 153, 154(1), 155, 156 and 163 of the Indian Constitution outlines the powers of the Indian President and the State Governors. Viz. There shall be a President of India.The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. There shall be a Governor for each State. The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. The Governor of a State shall be appointed by the President and shall hold office during his pleasure.

There shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his discretion. Anything done at the Governor’s discretion shall be final, and shall not be called into question. The question whether any, and if so what, advice was tendered by the Ministers to the Governor shall not be inquired into in any court – Thus we see that the provisions relating to the President and the Governors in the Indian Constitution are identical with the provisons relating to the President and the provincial Governors that were introduced to our Constitution through the 13th Amendment. The point to note is that it is not necessary to have an executive presidency to maintain control over the provinces and that a ceremonial president vested with the same discretionary powers as the Indian President is all that is needed.

Chief Justice Sharvananda and the others to further establish their claim that the 13th Amendment Bill does not affect the unitary character of the state pointed out that the Supreme Court and the Court of Appeal continue to exercise unimpaired jurisdiction over the whole country unlike in a Federal State. The power of appointment of Judges of the superior courts remains with the President. (As is also the case in India under Article 124(2) of the Indian Constitution.) The appointment, transfer, dismissal of judges of the lower courts continue to be vested in the Judicial Service Commission. Thus, the centre continues to be supreme in the judicial area as well.

The 13th amendment provides for Provincial Councils to have legislative power in respect of matters enumerated in the Provincial Council list and concurrent list in the Ninth Schedule. With regard to this, Chief Justice Sharvananda and the others contended that Article 76(3) of the Constitution specifically allowed Parliament to empower any person or body to make subordinate legislation for prescribed purposes and that delegated legislation is legal and does not involve any abandonment or abdication of the legislative power of Parliament. On the basis of the foregoing, Chief Justice Sharvananda and Justices Colin-Thome, Atukorale and Tambiah determined that no division of sovereignty or of legislative, executive or judicial power has been effected by the 13th Amendment and that the national government continues to be legally supreme over all other levels or bodies and that the Provincial Councils are merely subordinate bodies.

Justice Ranasinghe’s determination

Even though Chief Justice Sharvananda and the others who accepted the 13th Amendment Bill without any changes and did not consider a referendum to be necessary to have it passed into law were outnumbered by the other five judges who gave dissenting determinations, the determination of Justice K. A. P. Ranasinghe was such that with an adjustment, it could be brought into alignment with the determination delivered by the Chief Justice and others. Justice Ranasinghe determined that the supremacy of Parliament is retained in that it has the power to legislate, albeit in a special manner and form, to render ineffective any statute passed by a Provincial Council and even to repeal the provisions of the Provincial Councils Chapter in the Constitution in its entirety. Furthermore he observed that the executive power of the people entrusted to the President of the Republic is not whittled down in the 13th Amendment.

The issue that Justice Ranasinghe had was with Clauses 154G(2)(b) and 154G(3)(b) whereby a Bill for the amendment of the Provincial Councils Chapter in the Constitution or a Bill in respect of any matter set out in the Provincial Councils List can become law, in the event of one or more Provincial Councils not agreeing to the amendment only if it is passed with a 2/3 majority in Parliament and also approved by the people at a referendum. Justice Ranasinghe observed that Article 83 which specifies the entrenched Articles in the Constitution has been made alterable only by the process of a 2/3 majority and a Referendum and that therefore any steps taken thereafter to entrench another Article, would amount to an ‘addition’ to the existing provisions laid down in Article 83 of the Constitution and that would require a two thirds majority in Parliament plus a referendum.

It was by dropping the requirement for a referendum from Clauses 154G(2)(b), and 154G(3)(b) that Justice Ranasinghe’s determination was brought into alignment with that of Chief Justice Sharvananda and Justices Colin-Thome, Atukorale and Tambiah, thus enabling the 13th Amendment to be passed with a two thirds majority in Parliament without a referendum. It will be noted that one of the reasons stated by Justice Ranasinghe in coming to the conclusion that the 13th Amendment did not affect the unitary character of the Sri Lankan state was because ‘the executive power of the people entrusted to the President of the Republic’ has not been ‘whittled down’ in the 13th Amendment. In India too, the executive power of the union which is vested in the President has not been whittled down in any way.

The only difference between the Sri Lankan and Indian Presidents is that the former is a politician elected directly by the people and exercising power at his own discretion and the latter is a head of state elected by the Indian Parliament and carrying out his functions on the advice of the Prime Minister and the Cabinet of Ministers and having discretionary powers in certain matters. What matters is the executive power of the central government. Whether it is exercised by a ceremonial President acting on the advice of the Prime Minister or an elected President acting on his own, is of no relevance to the preservation of the power of the central government and the unitary character of the state. This can be seen from the incongruous fact that the supposedly ceremonial president of India has much greater discretionary powers in relation to statutes passed by the Indian states than the executive president in Sri Lanka has in relation to statutes passed by the provincial councils.

(To be continued tomorrow)