by Dr. Piyasena Dissanayake

The implementation of the 13th Amendment to the Constitution is very much in the air now. A statement attributed to Minister Douglas Devananda (The Island of July 25th) stated that the interest in the 13th Amendment had been revived by he present government to fully implement the devolution scheme set out therein (i. e. the Provincial Council system) as an interim measure until the APRC presents its more substantial proposals for power sharing in the future. A conference of Chief Ministers of Provincial Councils held recently took up the question of implementing items 1 and 18 of the list of subjects � namely, land and police powers � assigned to these Councils. Although the Provincial Councils have been in existence since 1987 the people at large have evinced little interest in them for the performance of these bodies have played no significant role in their day to day affairs. In fact, the popular view is that Provincial Councils have no useful public function to perform.

On the other hand, the provenance of the 13th Amendment is to a large extent shrouded in secrecy. The Indian Government taking undue advantage of a small neighbour, and in pursuit of a hegemonic policy, attempted to create a war psychosis by a flexing of military muscle and raising tension between the two countries. President J. R. Jayewardene, lacking either mental or physical courage and weak kneed, succumbed to these pressures from the youthful Indian Prime Minister Rajiv Gandhi. This was one of the sordid and shameless episodes in the history of this nation in recent times reminiscent of the infamous Don Juan Dharmapala! It was against such a background that the Provincial Council system was conceived in the scheming minds of Indian political leaders to appease the racist elements both in Tamil Nadu and in Sri Lanka.

Consequently, the Indo-Lanka Accord of 29th July, 1987 came into being, brokered by New Delhi�s South Block bureaucrats. These negotiations were conducted behind closed doors and behind the back of the Sri Lankan Prime Minister, the Minister of National security and the majority of members of the Cabinet of Ministers. This was the melodrama behind the 13th Amendment. It went through Parliament under pressure exerted by President Jayewardene, who not only held undated letters of resignation from his Parliamentary party members but also threatened a premature dissolution of Parliament, if the Bill was not passed.

However, when the Bill went before the Supreme Court, as required by the constitution for the determination of its constitutionality, a split decision of 5 of 4 was delivered upholding the Bill not being unconstitutional. But the majority decision came in for severe criticism by constitutional lawyers, academics and political commentators. They pointed out that what the Court was required to ascertain went far beyond a mere theoretical question of classification or nomenclature. It has to consider the impact of the proposed amendments on the whole constitutional structure and the changes in the system of government that were thereby created. It was, in fact, the approach of the 4 dissenting judges whose views were fully vindicated by constitutional theorists.

We wish to submit for the edification of readers the considered view of Mr. H. L. de Silva, PC, a leading constitutional authority in Sri Lanka, on this matter: "It is difficult to agree with the view of the majority of the Court that the changes brought about by the Thirteenth Amendment did not have the effect of the Constitution becoming at least quasi-federal, for the presence of certain unitary features in a constitution does not prevent the system of government from being federal in practice� In a sense therefore the constitutional position now obtaining in Sri Lanka is not substantially different from the kind of federal system that prevails in India". (vide page 40, paragraph 2 of �An Appraisal of the Federal Alternative for Sri Lanka by H. L. de Silva. 1991)

Further, it is the view of several other constitutional lawyers that the 13th Amendment was modelled on the pattern of the Indian Constitution, which is regarded as a federal constitution with strong centralising features. It is suggested that the powers granted to Provincial Councils by the Thirteenth Amendment lean even more towards federalism than the Indian Constitution. Moreover, it is submitted that the Thirteenth amendment violates certain fundamental features and provisions of the Constitution such as Articles 2 and 3. Again, it has been said that the Amendment has placed Provincial Legislation on par with the legislation of Parliament. In this regard, particular attention has been drawn to the provisions of the Amending Articles 154G (2) and (3), where the Bill sought to entrench certain provisions with the requirement even for the necessity of a Referendum � an effort to lift oneself up by one�s bootstaps! A perusal of the minority judgment would show these in detail.

Informed opinion here and abroad have spoken of the correctness of the reasoning in the minority judgment. Without overburdening this statement, we wish to cite one such outstanding opinion from Justice Shirani Banaranayake, a much respected and able judge of our Supreme Court. The article referred to had been written before she was a senior Lecturer in the Faculty of Law of the Colombo University. After an exhaustive examination of the 13th Amendment she has reached the following conclusions: "Provincial Councils are on par with the Parliament and that the Provincial Councils come within the category of subsidiary sovereign bodies. This demonstrates the division of legislative power".

"Secondly, Article 154G (8) clearly points out that, when there is a conflict between statutes of a Provincial Council and an existing law with regard to a matter on the Provincial Council list, the existing law shall remain suspended and be inoperative within that Province, so long as that statute is in force. The result of these provisions, as Justice R. S. Wanasundera pointed out in his dissenting judgement, is an abdication or an alienation of the country�s legislative power. Moreover, as pointed out earlier, this leads to a further argument that the provisions of the 13th Amendment is contravening Article 2 of the 1978 Constitution. Article 2 precisely pronounces that Sri Lanka is a Unitary States and in the present circumstances one could argue that the Provincial Councils, which are empowered to make statutes which are on par with laws made by the Parliament; and to enact statutes that can suspend and render inoperative laws made by Parliament have made the country federal in nature. This illustrates clearly that the devolution of power has not been carried out within the framework of the Constitution" (vide pages 170 and 171 of The United States and Sri Lanka Constitutions: A Comparative Study 1991)

It must be pointed out, however, that Justice Shirani Bandaranayake has emphatically stated in her article that amendments could be made within the framework of the Constitution to make provision to empower the regional centres to carry out the central government�s functions under its supervision. Examining the Articles 154G (2) (3) she states, "This emphasises quite clearly that with regard to the enactment of statues it will become a document with unworkable provisions. Perhaps, it would be better for a unitary state to obtain a fresh mandate to amend the constitution so that the power could be devolved to the regions of the country."

It would thus be seen that the Thirteenth Amendment in its existing form is bad in law owing to it sinner contradictions, that is, the majority judgement holding that it is constitutional and does not violate the basic constitutional provisions when, in fact they clearly do so. In these circumstances, if the Government were to implement it on the advice and recommendation of the APRC, as expected, it would compound the problems and plunge this nation into disaster. We agree with Justice Shirani Bandaranayake, who with great wisdom and foresight, has suggested that a fresh mandate be obtained.

If, however, the Government wishes to amend or implement the Thirteenth Amendment, it must be clearly understood that it will operate subject to the following axioms:-

1. Sri Lanka will continue to be a sovereign independent State among the community of Nations.

2. The Presidential and Executive Powers not existing will not in any way be diminished or curtailed.

3. The existing plenary and Constitutional powers of Parliament which are of the primary grade will not in any way be diminished or curtailed;

4. The plenary Judicial power now vested in the Court structure will not in any way be diminished or curtailed; and

5. That no rival institutions inconsistent with the existing structure will be set up or be allowed to encroach on or be in derogation of the above mentioned structure or power.