POINT OF VIEW

On interpreting a Bill :

AMENDMENT or NATIONAL POLICY?

Neville Ladduwahetty

It is reported that the government has plans to introduce two revisions to existing provisions of the Constitution. Both relate to the 13th Amendment. The first relates to the merger of “two or three adjoining Provinces to form one administrative unit” - as in Article 154A (3). The second relates to provisions of Article 154G (2) and (3) where a special Parliamentary majority of 2/3 is required if “one or more Councils do not agree” to a Bill.

Both contemplated revisions are being considered as Amendments. A pertinent question that could be raised is why both revisions could not be categorized as issues that affect “National Policy” as provided for in the Reserved List rather than as Amendments? Since the first issue has a bearing on the territorial integrity of Sri Lanka, as in the case of the merger of the Northern and Eastern Provinces, could not the revision be treated as coming within the jurisdiction in the Reserved List of the 13th Amendment (meaning powers of the Central Government), specified as “National Policy on all Subjects and Functions”? Similarly, should not the requirement of a 2/3 majority of Parliament be waived if one or more Councils do not agree to a Bill as a matter of “National Policy on all Subjects and Function” in the Reserved List, since any Bill however progressive, such as devolving power to grass roots levels, as an Amendment would need to be postponed until a 2/3 Parliamentary majority could be mustered?

13th Amendment - Reserved List

The Reserved List states at its very outset that the Central Government is responsible for: “National Policy on all Subjects and Functions”. The reaction to the above provision is reflected in the observation given below from a publication of the International Centre for Ethnic Studies, cited by late H.L.de Silva in his book, SRI LANKA A NATION IN CONFLICT, 2008, pp.125,126).

“The 13th Amendment in the present form is the anathema (sic) of sincerity in that powers which are ostensibly devolved can be reacquired by the Centre by the use of disingenuous mechanism, such as a description of anything under the sun as a matter in respect of which the formulation of a national policy is required. It is all-embracing in its conception. Now that kind of sleight-of-hand, that kind of disingenuity is not likely to inspire confidence in anybody. Education is a devolved subject, but by characterizing a school as a national school (and there are no criteria that governs the delineation) next morning it is handed over to Colombo…” (ICES, 1995, 9).

The above comment conveys the impression that devolved powers are sacrosanct. It fails to recognize that in a unitary state such as Sri Lanka, devolved powers are subordinate to the powers at the centre. The four Judges who determined that a referendum was not needed quoted Dr. Wheare from his book on “Modern Constitution” (p.19).

The quote was: “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 has the right, in law, to overrule them; they are subordinate to it”.

Continuing the judgement written by the then Chief Justice S. Sharvananda stated:

“The question that arises is whether the 13th Amendment Bill under consideration creates institutions of government which are supreme, independent and not subordinate within their defined spheres. Application of this test demonstrates that both in respect of the exercise of its legislative powers and in respect of exercise of executive powers no exclusive or independent power is vested in the Provincial Councils. The Parliament and President have ultimate control over them and remain supreme”.

Therefore clearly, devolved powers are subordinate to “National Policy on all Subjects and Functions”.

Provisions in the US constitution

Despite the negativity expressed in the ICES publication, the irony is that similar provisions exist in the US Constitution. For instance, Article 1 Section 8 Clause 18 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 of the Government of the United States, or in any Department or Office thereof”.

Under this provision, often described as “Necessary and Proper Clause”, given below are a few of the instances where this clause was used to enact a wide variety of federal laws.

Supreme Court complex

1. Various reforms involved in the New Deal to regulate interstate commerce.

2. A federal statute making it a crime for a farmer to produce more wheat than was allowed under price and production control even if the excess production was for the farmers own use.

3. Federal laws affecting economic activity

4. A wide range of criminal laws relating to interference with the federal government’s rightful operation.

The need for Article 1 Section 8 Clause 18 was strongly defended by Hamilton and Madison in the Federalist Papers as a measure needed for the security, integrity and progress of the United States.

The need for National Policy

In this context it is pertinent to question whether the recently passed Divi Neguma Bill that was treated as an amendment should instead to have been treated as a Bill under the provision of “National Policy” in the Reserved List since its primary purpose was to address a national issue, namely, poverty alleviation. Had it been determined that the Bill was in fact part of National Policy it may not have been necessary to endure the trauma associated with it.

Similarly, current provisions for the merger of two or three provinces should be repealed in order to ensure that no future government would be tempted to use the provision to stay in power through coalition demands. For instance, a political party that fails to secure a majority to form a government could bargain for the support of minority parties in exchange for the merger of the Northern and Eastern Provinces and transform itself into a viable government with a majority. Likewise, the need for a unanimous agreement by Provincial Councils is an unnecessarily high bar that could stand in the way of progressive legislation.

Therefore, there is a need to treat these Bills as coming under the rubric of “National Policy” instead of as Amendments.

Role of the Supreme Court

Since the issue of whether a Bill is an Amendment or one of National Policy is a question of law, any government should seek the opinion of the Supreme Court as to its categorization under provisions of Article 129 of Sri Lanka’s Constitution. Such an approach would clarify once and for all how a Bill is categorized. Since Article 129 provides for proceedings to be publicly held, the opinion conveyed by the Court would be final, thereby paving the way for a government to proceed with confidence.

The same procedure could be adopted in the case of whether the 13th Amendment should be amended or repealed in its entirety. Since there appears to be general acceptance of the fact that five out of nine Judges of the Supreme Court determined in 1987 that a referendum was required, a fact that was first brought to the attention of the public in September 2009 in an article titled “Legality/Constitutionality of 13A may be questionable”, it would be legitimate for the government to seek an opinion from the Supreme Court as to how the 13th Amendment came to adopted without a referendum despite the Court’s determination.

This legitimacy of this approach would eliminate current debate as to whether to amend or repeal the 13th Amendment, and lay to rest this all consuming issue for the government and the nation.

Both internationally and nationally, pressure is being exerted on the government not to touch the 13th Amendment. Despite this pressure, an objective evaluation would reveal that problems exist with regards to provisions such as:

1. Opportunity for the merger of provinces;

2. Inability to introduce legislation without a 2/3 majority if one or more Councils are opposed notwithstanding however progressive the legislation may be;

3. Provincial Police and Land Powers as presently provided for in the 13th Amendment warrant revisions.

The inability of the government to move forward on any of these issue is because it perceives them as Amendments requiring 2/3 majorities instead of them being recognized as vital and essential components of National Policy.

The government should be sobered by the fact that under the Constitutional provisions of the Reserved List, it has power to legislate on “National Policy on all Subjects and Functions”.

The government should have the courage to use this provision to legislate on issues that are unquestionably issues of National importance, encouraged by the fact that similar provisions exist in the US Constitution, and furthermore, by the fact that it was the unbridled use of this provision that enabled the US, although a federal state, to strengthen the centre and to develop and prosper in a manner that has been unparalleled.