Constitutional manoeuvres of separatist forces:

Need for Central Government Control

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

Constitution of Sri Lanka

Similar provision to Articles 162 and 73 for the Indian Constitution cannot be found in our Constitution.

In our Constitution, article 154C states that, “executive power extending to the matters with respect to which a Provincial Council has power to make statute shall be exercise by the Governor of the Province for which that Provincial Council is established, either directly or through the Ministers of the Board of Ministers or through officers subordinate to him, in accordance with article 154F”.

Article 154F provides, that “the Governor shall exercise his functions act in accordance with the advise of the Board of Ministers of the Province.”

Provincial Government has power to make laws in respect of matters both in the Provincial list and the Concurrent list.

Therefore Executive powers of the Provincial Government extend to both the Provincial and Concurrent lists.

When the Supreme Court considered the 13th amendment it was held that the executive power exercised by the Governor is subject to the directions of the President who is vested with the Executive Power of the People by Article 4 (b).

Although Article 154B (2) states that the Governor holds office during the pleasure of the President in accordance with article 4(b) (which vests executive power in the Executive President) the effect of this provision cannot be compared with the aforementioned articles 73 and 162 of the Indian Constitution and more particularly Chapter II of the part XI of the Indian Constitution where Article 256 and 257 provides for greater control by the Central Government with regard to the exercise of executive power.

Although it is correct that the President can exercise his Executive Powers overriding the Executive Powers exercised by the Governor, this process is not at all practical.

Article 73 and 162 of the Indian Constitution provides to place limitation on the State with regard to the exercise of executive power with regard to subjects in the concurrent list.

When the 13th amendment was enacted, it was ensured that provision similar to Article 73, 162, 256 and 257 of the Indian Constitution are not included in our Constitution.

This dishonest omission was a deliberate move by the separatist forces.

The Constitution of South Africa

South African Constitution also contains provision with regard to the exercise of executive power by the National Government over Provincial Government. In this connection, Article 100 of the South African Constitution may be relevant. The said Article is reproduced below.

100. National intervention in provincial administration

1. When a province cannot or does not fulfill an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfillment of that obligation, including -

a. issuing a directive to the provincial executive, describing the extent of the failure to fulfill its obligations and stating any steps required to meet its obligations; and

b. assuming responsibility for the relevant obligation in that province to the extent necessary to

I. maintain essential national standards or meet established minimum standards for the rendering of a service;

ii. maintain economic unity;

iii. maintain national security; or

iv. prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole.

[Sub-s. (1) substituted by s. (2) (b) of Act No. 3 of 2003]

2. If the national executive intervenes in a province in terms of subsection (1)(b)

a. it must submit a written notice of the intervention to the National Council of Provinces within 14 days after the intervention began;

b. the intervention must end if the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and

c. the Council must, while the intervention continues, review the intervention regularly and make any appropriate recommendations to the national executive.

[Subs-s (2) substituted by s. (2) (c) of Act No. 3 of 2003.]

3. National legislation may regulate the process established by this section.

[S 100 amended by s. (2) (a) of Act No. 3 of 2003]

Although we have proceeded to prune down the powers of the President, the executive authority of the President of South Africa provides that the President has executive authority to develop and implement national policy (vide Article 85).

Central government control over states in emergency situations

Constitution of India

The Constitution of India provides for parliament to legislate, while a proclamation of emergency is in operation, in respect of matters enumerated in the State list. (vide article 250(1) of the Indian Constitution).

Article 251 of the Indian Constitution provides that “nothing in Article 249 and 250 shall restrict the power of the legislature of a state to make any law which under this constitution it has power to make, but if any provision of any law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed after or before the law made by the legislature of the State, shall prevail, and the law made by the legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative.

Article 353 (a) and (b) dealing with an emergency situation provides as follows,

(a) notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised;

(b) the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of the duties, upon the union or officers and authorities of the union as respects that matter, notwithstanding that it is one which is not enumerated in the union list.

Article 356 inter alia states,

(1) If the President on receipt of a report form the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may be Proclamation.

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor, or any body or authority in the State other than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State;

Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.

(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.

(3) Every Proclamation under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:

(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the Proclamation under clause (3):

Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years:

Article 357 provides,

(1) Whereby a Proclamation issued under clause (1) of article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent -

(a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf!

(b) for Parliament, or for the President or other authority in whom such power to make laws is vested under sub-clause (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union of officers and authorities thereof;

(c) for the President to authorise when the House of the People is not in session expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament.

(2) Any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under article 356, have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of one year after the Proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the said period, unless the provisions which shall so cease to have effect are sooner repealed or re-enacted with or without modification by Act of the appropriate Legislature.

Some of the other provisions of the Indian Constitution dealing with Union Control of State power includes the power of the State to impose restrictions on trade and commerce, for instance Article 302 of the Indian Constitution states, “that Parliament may by law impose such restrictions of the freedom of trade, commerce or intercourse between one State and in another or within any part of the territory of India as may be required in the public interest”.

Constitution of Sri Lanka

Article 154K, 154L and 154M incorporate similar provision but less stringent than the Indian provisions. Article 154L (3) which corresponds to Article 356 (3) of the Indian constitution reduces the time period within which a proclamation made by the President can be brought for approval before the Parliament from two months to fourteen days.

Article 154L (4) which correspond to article 356 (4) of the Indian Constitution reduces the operative periods of an approved proclamation from six months to two months and three years to one year respectively.

Constitution of South Africa

The corresponding provisions found in the South African Constitution are reproduced below.

37. States of emergency

1. A state of emergency may be declared only in terms of on Act of Parliament, and only when

a. the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and

b. the declaration is necessary to restore peace and order.

2. A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only

a. prospectively; and

b. for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time.

The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly.

Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 percent of the members of the Assembly.

A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.

3. Any competent court may decide on the validity of

a. a declaration of a state of emergency;

b. any extension of a declaration of a state of emergency; or

c. any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.

In conclusion it needs to be stated that devolution of power may not always be objectionable.

However when devolving power it is necessary to do so in a manner that will not lead to a division of this country. The 13th amendment was not implemented for over two decades due to the objectionable features discussed above.

Therefore if the 13th amendment is to be implemented, it is important that these objectionable features of the 13th amendment are first rectified before implementation.

Concluded