Unitary character of the State and sovereignty of the people

Manohara R. De Silva

From the report presented by the author at the national seminar held on May 4 at the BMICH in Colombo organised by the World Alliance for Peace in Sri Lanka

The Constitutional machinations of the separatist forces in post independence Sri Lanka were visible from time to time but the first successful attempt was made with the 13th amendment in 1987.

The 13th amendment to the Constitution, which was introduced immediately after Indo-Lanka Accord of 1983 had its origin from Annexure C. The 13th amendment created provisional governments for each province, dividing the powers of Government between the Centre and the Provinces.

The 13th amendment was challenged before the Supreme Court primarily on the basis that it is inconsistent with the Unitary State postulated by Article 2 of the Constitution and the sovereignty of the people as guaranteed by Articles 3 and 4 of the Constitution.

Constitution

Article 2, 3 and 4 of the Constitution read as follows:

2. The Republic of Sri Lanka is a Unitary State.

3. 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.

4. The sovereignty of the people shall be exercised and enjoyed in the following manner:

(a) the legislative power of the people shall be exercised by Parliament, consisting of elected representatives of the people and by the people at a referendum.

(b) the executive power of the people, including the defence of Sri Lanka shall be exercised by the President of the Republic elected by the people.

(c) the judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established or recognized, by the Constitution or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law,

(d) .....

(e) .....

The term ‘Unitary’ in Article 2 is used in contradistinction to the term Federal, which means an association of semi-autonomous units with a distribution of sovereign powers between the units and the centre. In a Unitary State, the National Government is legally supreme over all other levels.

The essence of a Unitary State is that the sovereignty is undivided - in other words, the powers of the Central Government are unrestricted. Two essential qualities of a Unitary State are,

(1) Supremacy of the Central Parliament, and

(2) the absence of Subsidiary Sovereign bodies.

On the other hand, in a Federal State 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 sphere allotted to them. Dr. Wheare in his book ‘Modern Constitutions’ brings out the distinction at page 19.

“..... in a Federal Constitution the powers of Government are divided between a Government for the whole country and Governments for parts of the country in such a way that each government is legally independent within its own sphere.

The government for the whole country has its own area of powers and it exercises them without any control from the governments of the constituent parts of the country, and these latter in their turn exercise their powers without being controlled by the Central Government.

Limited powers

In particular the legislature of the whole country has limited powers and the legislatures of the States or provinces have limited powers. Neither is subordinate to the other. Both are co-ordinate.

In a Unitary constitution, on the other hand, the legislature of the whole country is the supreme law making body in the Country. It may permit other legislatures to exist and to exercise their powers, but it has the right, in law, to override them; they are subordinate to it”.

Five Judges of the Supreme Court, namely Chief Justice Sharvananda, Justice Colin Thome, Justice E. A. D. Athukorale, Justice H. D. Thambiah and Justice P. Ranasinghe held that none of the provisions of the 13th amendment were inconsistent with Article 2,3,4 or 9 of the Constitution. Justice Wanasundera, Justice L.H. De Alwis, Justice O. S. M. Seneviratne and Justice H. A. G. de Silva held that the 13th amendment was inconsistent with the said Articles.

In the 13th amendment, provision was made for a Governor to be appointed for each province. Governor exercises executive power within the province and had the power to appoint public officers within his province.

Article 154 B (2) of the Constitution however provided “the Governor shall be appointed by the President by warrant under his hand and shall hold office, in accordance with Article 4 (b) during the pleasure of the President”.

According to Article 154 C of the Constitution as introduced by the 13th amendment, the Governor exercises executive power with regard to subjects enumerated in the provincial and concurrent lists.

Article 154 F (1) provided that the Board of Ministers with the Chief Minister at the Head and four other Ministers could advise the Governor of a Province in the exercise of his functions.

When the 13th amendment bill came up before the Supreme Court, it was argued that exercise of executive power by the Governor on the advise of the Chief Minister was an erosion of the powers of the President.

It was further argued that the executive power of the people had to be exercised exclusively by the President as provided by Article 4 (b) of the Constitution. Executive power is a component of sovereignty of the people, which the constitution provides in Article 3 as inalienable.

Executive power

Therefore the question arose whether taking away part of the executive power of the President and vesting the same with the Governor is in effect the creation of a ‘sovereign subsidiary body’ controlled by the Chief Minister independent of the President and therefore a division of sovereignty which affected the unitary status of the country.

The Supreme Court observed that in terms of Article 4 (b), the Governor was a representative of the President and was required to act in his discretion in accordance with the instructions and directions of the President under Article 4 (b).

Provincial Council

The Supreme Court held that “so long as the President retains the power to give direction to the Governor regarding the exercise of his executive functions, and the Governor is bound by such directions, superseding the advise of the Board of Ministers and where the failure of the Governor or Provincial Council to comply with or give effect to any directions given to the Governor or such Council by the President under Chapter XVII of the Constitution will entitle the President to hold that a situation has arisen in which the administration of the province cannot be carried on in accordance with the provisions of the Constitution and take over the functions and powers of the Provincial Council (Article 154 K and 154 L), there can be no gain saying the fact that the President remained supreme or sovereign in the executive field and the Provincial Council is only a body subordinate to him”.

Similarly, it is interesting to examine whether the 17th amendment eroded the powers of the President. The 17th amendment, has taken away much of the President’s powers and vested them in the numerous commissions established by the 17th amendment.

If we were to adopt the same test, adopted by the Supreme Court in the 13th amendment determination, clearly, the 17th amendment creates institutions which are not subject to presidential control which is an erosion of the executive powers of the President.

It was held in the 13th amendment bill determination that there was no erosion of the Presidential Powers for the reason that the “Governor was a representative of the President and was required to act in his discretion in accordance with the instructions and directions of the President under Article 4 (b)”.

This was provided in the 13th amendment in Article 154 B (2) of the Constitution. In contradistinction no provision in line with Article 154 B (2) was included in the 17th amendment.

The Constitutional Council and Commissions created by the 17th amendment were independent institutions free of Presidential control.

It was clear from the language of Article 41 B and 41 C that the President had not been given any discretion with regard to the appointments made under Article 41 B and 41 C. In the absence of an Article similar to Article 154 B (2) in the 17th amendment, the Constitutional Council is not obliged to follow any direction of the President.

Even the Commissions appointed were not required to follow instructions of the President. Therefore the Constitutional Councils and Commissions were sovereign subordinate bodies that exercised their power independently from the powers of the President.

However the Supreme Court held that there was no removal of the executive powers of the President but only “a restriction in the exercise of the discretion hitherto vested in the President” and that “this restriction would not be an erosion of the executive powers of the President, so as to be inconsistent with Article 3 of the Constitution”.

If the restriction referred to by the Supreme Court was only a ‘Procedural Restraint’, then such a restraint may not necessarily be an erosion of the powers of the President. The restrictions placed on the President by the 17th amendment is not a mere procedural restraint but an alienation of the substantive powers of the President.

It was held that the 13th amendment bill determination that a procedural restraint placed on Parliament by Article 154 G (2) and (3) did not limit the sovereignty of the people.

Article 154 G (2) and (3) which required the Parliament to have 2/3 majority to pass any legislation with regard to a subject in the Provincial List was held to be only a procedural restraint.

Public Service Commission

If the Parliament followed that procedure, they had the power to pass legislation even with regard to any matter on the Provincial List. The restriction was thus only procedural and therefore not an erosion of the sovereignty of the people. In contradistinction in the 17th amendment, the powers of the President to exercise his discretion to make the appointments have been taken away completely.

Therefore it is submitted with respect that the Supreme Court was in error in holding that the 17th amendment did not infringe Article 3 of the Constitution. For instance members of the Public Service Commission are not holding office at the pleasure of the President. Members of the Public Service Commission can be appointed only on the recommendation of the Constitutional Council which is totally independent of the President.

Public Service Commission is therefore not subject to Presidential Control. No longer do the members of the Public Service Commission hold office during the pleasure of the President (prior to the 17th amendment the President had the power to remove any member of the Public Service Commission for cause assigned). The President cannot remove a member of the Public Service Commission at his discretion.

The Public Service Commission is thus a subsidiary sovereign body vested with executive power not subject to Presidential control. Public Service Commission exercises executive power of the people which is a component of the people’s sovereignty independent of the President. Division of sovereignty in this manner therefore affects the unitary status of the Republic.

The division of sovereignty not only violates Article 2 of the Constitution, but also Article 3 which guarantee that people’s sovereignty is inalienable, therefore could have become law only upon it being passed by a 2/3 majority of the Members in Parliament and by the People voting at a Referendum.

The 17th amendment was however passed with a simple majority having so decided by the Supreme Court in the 17th amendment bill determination that the same was not inconsistent with Article 3. It must be submitted with respect that the Supreme Court determination that the 17th amendment is not in violation of Article 3 of the Constitution is erroneous.

(To be continued)