(ESTABLISHED BY THE NATIONAL JOINT COMMITTEE)
INTERIM REPORT
PRESENTED TO THE NATION
AT THE
ALL CEYLON BUDDHIST CONGRESS HALL COLOMBO
17 SEPTEMBER 1997
(ESTABLISHED BY THE NATIONAL JOINT COMMITTEE)
Hon. R.S. Wanasundara,
President,
National Joint Committee, 70, D.S. Senanayake Mawatha, Colombo 08.
Dear Sir,
Sinhala Commission - Interim Report
1997.09.17
We submit herewith an Interim Report of our Commission.
This deals in particular with the injustices that may be caused to the Sinhala people if the proposed Draft Constitution is made the Supreme Law of the land. Members of the Maha Sangha and the public urged us to issue an Interim Report early as the Government is likely to present the Draft Constitution to Parliament soon.
We have acceded to the request and accordingly send this Report on the Draft Proposals issued by the Government.
Yours faithfully,
Sgd. S.W. Walpita Chairman
Sgd. A.D.T.M.P Tennekone Member
Sgd. Professor A.D.V. de S. Indraratna Member
Sgd. Professor P.A. de Silva Member
Sgd. P.D. Uduwela Member
Sgd. Professor Mrs. Lily de Silva Member
Sgd. G.P.S.H. de Silva Member
Padmashantha Wickramasooriya - Secretary
CONTENTS
Preamble
l. Whether the Present Parliament has the legislative power to pass such a Constitution into Law
1.1 The Commission's view
1.2 PA's Manifesto
1.3 Constituent Assembly
1.4 Constitution:l947/1948
1.5 Amending provisions
1.6 Autochthonous Constitutions
1.7 Necessity of a Constituent Assembly
1.8 Constitution:l972
1.9 Articles 1-4
1.10 Legislative powers of the National State Assembly
1.10.1 Article 44
1.10.2 Article 45
1.10.3 Article 51
1.11 The. Present Parliament
1.11.1 1977 Constitution
1.11.2 Preamble
1.11.3 Powers under Art.44 of 1972
1.11.4 Its structure
1.11.5 Article 76
1.11.6 Amendment procedures
1.11.7 Article 83
1.11.8 Articles 1- I 1
1.12 Article 75 and 76
1.12.1 Article 75
1.12.2 Article 76
1.12.3-6 Position of Arts.75 and 76
1.12.7-9 Art.88 in the Draft Constitution
1.13 The Republic of Sri Lanka a Unitary State
1.13.1-2 Article 2
1.13.3 Subsidiary Law making bodies
1.13.4-5 Federal State
1.13.6-8 13th Amendment
1.13.9-13 Articles I -2
1.13.14-16 Summary view
1.14 Sovereignty
1.14.1-3 Article 3
1.14.4-6 Article 3 and that of the 1972 Constitution
1.14.7-8 Article 3(a) and 3(b): Draft Constitution
1.14.9 Subordinate Legislation
1.15 The proposed referendum
1.15.1-11 Article 86
1.16 Mode of introduction of a new Constitution
1.16.1-4 Articles 82-83
1.16.5-6 Doctrine of 'Necessity'
1.16.7 Upholding the Law
2 Political implications of the Devolution Proposals
2.1 Effects of a possible implementation of the 'Draft Propc
2.2 The Unitary State
2.2.1 Articles 1-2 of the present constitution
2.2.2 Article 3(a) of the 'Draft'
2.2.3-4 Unitary State to a Federal state
2.2.5-15 13th Amendment: Concurrent List
2.2.16-17 Article l 5(2) of the 'Draft'
2.3 Unit of Devolution
2.3.1-2 Article 2(1)
2.3.3 'Canker of Communalism'
2.4 Substance of Devolution
2.4. 1 Absence of Concurrent List
2.4.2-3 Legislative power:15(2)-(3) 'Draft'
2.4.4 National Policy under l3th Amendment
2.5 Law and Order
2.5.1-2 Article 25(1) Police
2.5.3-4 Article 25(4) Regional Police Service
2.5.5 Capital Territory
2.5.6 Regional Police Commissioner
2.5.7-9 Overlapping functions
2.5.10-12 Consequences
2.6 Administration of Justice
2.6.1 Administration in Practise
2.7 The'Package' and Buddhism
2.7.1-3 Its Operation and effects
2.8 The Chief all-powerful Minister
2.8.1-4 Powers
2.8.5 Position vis-a-vis Executive President
3 The effect on the economy of the country
3.1 Sri Lanka: A Brief Profile
3.1.1 Basics statistics
3.12 Natural Resources
3.1.3 G.D.P.
3.1.4-5 The 'Draft Provisions'
3.2 Allocation of Resources
3.2.1-2 Basic Requirements
3.3 Mobility of Resources
3.3.1 Natural and Human Resources
3.4 State Land
3.4.1 Disposition
3.4.2 Sea Coast and Fisheries
3.4.3 Population Densities
3.4.4 Consequences of vesting Land in Region
3.4.5 Settlements schemes
3.4.6-7 Fishing rights
3.4.8-9 Land and Border Clashes
3.4.10 Recommendation
3.5 Vesting Lands in Relations to Agriculture etc..
3.5.1-3 Agriculture
3.5.4 Land Revenue
3.5.5 Mahaweli Development
3.5.6 Mining
3.5.7-11 Forestry and Ecological Grid
3.5.12-13 Environment
3.5.14-15 Fisheries
3.5.16-18 Industry
3.5.19 Free Trade Zones
3.5.20-21 Trade
3.5.22-23 Tourism
3.5.24 Energy
3.5.25-27 Education and Higher Education
3.5.28 Television and Broadcasting
3.5.29-30 National Planning and Development
3.6 Regional Finance
3.6.1 Currency, Foreign Exchange, etc.
3.6.2-4 Expenditure of Regional Administrations,
3.6.5-6 Foreign Grants etc.
3.6.7 Budgetary Policy
3.6.8 Monetary Policy and Price stability
3.6.9 Exchange Rate Policy
3.6.10-14 Foreign Transactions
3.7 Summary
3.7.1-2 Natural Resources
3.7.3 National Policy
3.7.4 Economic Implications
Conclusions
Recommendations
on
The Government's Proposals for Constitutional Reform
Preamble
The National Joint Committee, consisting of a large number of Sinhala organisations from al) parts of the country, appointed this Commission in December 1996, to inquire into and and report on the injustices caused to the Sinhala people and to make recommendations with a view to rectifying such injustices. In accordance with the terms of reference, this Commission invited by public notice written representations and recommendations from individuals and organisations on matters pertaining to the terms of reference. A large number of representations were received and further action was taken to hold sessions in various parts of the country to hear oral evidence. During the course of these proceedings many important members of the Maha Sangha and of the public pressed on us the urgent need to examine and issue a Report early on the Government's Draft Proposals for Constitutional Reform with special reference to the possible consequences to the vast majority of the people of this country, if these proposals were adopted in their present form. We have carefully considered this request and as the Government seems intent on presenting their proposals soon to Parliament, and to the people thereafter, for their approval at a Referendum, we have thought it opportune to issue this Interim Report for appropriate action by the National Joint Committee.
The possible implementation of these proposals, hereinafter called the "Devolution Package", in its present form, will to be the biggest threat faced by Sri Lanka in its entire history of more than 2500 years. This was the consensus of views expressed by many witnesses who gave evidence before our Commission. They comprised, among others, Heads of the three Nikayas of the Maha Sangha, Representatives of Muslim, Catholic, and Christian Religions, and of the Media, former Governors of the Central Bank, a Parliamentarian, Vice Chancellors and Professors of our Universities, Public Servants, Professionals, School Heads, and business leaders.
1.1 We say, at the very outset, that the Parliament has no legal power to pass into law the Draft Constitution, in its present form, and have it enacted and adopted as the Supreme Law of the State. The reasons we give are the following.
1.2 The People's Alliance forms the Government today, having been elected by the People in the General Elections of 1994. In its Manifesto presented to the People before the Election, with reference to Constitutional Reform, it said as follows: "The People's Alliance seeks a Mandate from the People of Sri Lanka to abolish the Executive Presidency and promulgate and operate a new Constitution designed to restore fully to the people their sovereignty, which will be exercised through their representatives in Parliament. The People's Alliance upon forming a government, will convene a Constituent Assembly. consisting of the Members of the Parliament, to formulate and adopt the new Constitution which will derive its force and validity from the expression of the political will of the People."
1.3. Up to date no Constituent Assembly has been convened, even though, three years have lapsed after the last General Election. But the Government hopes to use the powers given to Parliament under the present Constitution to repeal it and then promulgate a new Constitution on the lines of the Devolution Package. It will be necessary therefore to consider now what legislative powers the Parliament has under the Constitution to repeal it and enact a new Constitution. Before we do so we shall look into the genesis of the present Constitution.
1.4 Under the Ceylon Independence Act of 1947, the Ceylon Independence Order in Council of 1948, and the Ceylon (Constitution) Order in Council
of 1947, here after referred to as the Soulbury Constitution our country achieved its independence, and it became the Supreme Law of the Land. The power of the Parliament to make laws was given by Section 29 of the Order in Council, which reads as follows;
(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.
(2) No such law shall (a) prohibit or restrict the free exercise of any religion; or (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable or (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions (d) alter the constitution
(3) Any law made in contravention of subsection (2) of this section shall, to the extent of such contravention, be void.
(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island.
Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the Rouse of Representatives amounted to not less than two thirds of the whole number of Members of the House (including those not present).
Every certificate of the Speaker under this subsection shall be conclusive for all purposes and shall not be questioned in any court of law.
1.5 This Constitution could be amended but it would still be subject to the restriction imposed on it by the proviso in Section 29 (2). In Bribery Commissioner V Ranasinghe 1965 AC 172 in an appeal from Sri Lanka the Privy Council said: "a legislature has no power to ignore the conditions of law making that are imposed by the instrument which itself regulates the power to make law. This restriction exists independently of the question whether a legislature is sovereign."
1.6 "Commonwealth countries, a little time after achieving independence, often wish to base a revised constitution on a local grundnorm,: they assert the principal of constitutional "autochthony", that is their constitution is sprung from their native soil and not derived from a United Kingdom Statute. Strictly, autochthony requires a breach in legal continuity, an actual or technical revolution." Constitutional and Administrative Law by Hood Phillips and Jackson, p.759.
1.7 To free itself from the restrictions of Section 29 of the Order in Council therefore, a break was necessary with this British Order in Council and an autochthonous Constitution created and enacted and a revolutionary change brought about. Thus a Constituent Assembly had to be convened. It has been the democratic way of making a revolutionary change.
1.8 On the election of the United Front Government of 1970 they, in honouring a promise given to the people in its Manifesto, set up a Constituent Assembly to draft a new Constitution. A new Constitution was then drafted by this Assembly and it was adopted by the Constituent Assembly in May 1972. The Preamble of this Constitution (hereafter referred to as the UF Constitution) stated as follows: "We the People of Sri Lanka being resolved in the exercise of our freedom and independence as a Nation to give to ourselves a Constitution which will declare Sri Lanka a free Sovereign and Independent Republic pledged to realize the objectives of a Socialist Democracy including the Fundamental Rights of all citizens and which will become the Fundamental Law of Sri Lanka deriving its power and authority solely from the People do on this the tenth day of the waxing moon in the month of Vesak in the year two thousand five hundred and fifteen of the Buddhist Era that is Monday the twenty second day of May one thousand nine hundred and seventy two acting through the Constituent Assembly established by us hereby adopt enact and give to ourselves this Constitution."
1.9 Article I of this Constitution stated that Sri Lanka is a free Sovereign and Independent Republic, Article 2 that Sri Lanka is a Unitary State, Article 3 that Sovereignty is in the People and inalienable, and Article 4 that Sovereignty of the People is exercised through a National State Assembly of elected representatives of the People.
1.10 Legislative powers of tbe National State Assembly
1.10.1 Article 44 -
The legislative power of the National State Assembly is supreme and includes the power-
(a) to repeal or amend the Constitution in whole or in any part, and (b)to enact a new Constitution to replace the Constitution.
Provided that such power shall not include the power
( 1 ) to suspend the operation of the Constitution or any pai-t thereof, and (2) to repeal the Constitution as a whole without enacting a new Constitution to replace it.
1.10.2 Article 45 - (1) The National State Assembly may not abdicate, delegate or in any manner alienate its legislative power, nor may it set up an authority with any legislative power other than the power to make subordinate laws. (2) It shall not be a contravention of the preceding provisions of this section
for the National State Assembly to make any law containing(a) any provision empowering any authority to appoint a date on which a law passed by the National State Assembly is to come into effect or to cease to have effect;
( b) any provision empowering any authority to make by order any law enacted by the National State Assembly or any part thereof applicable to any locality or to any class of persons;
(3) Refers to conferring of power by the National State Assembly to make subordinate legislation.
(4) Refers to the President's power to make regulations in an emergency. 1.I0.3 Article 51 provided for the procedure to be adopted in the case of an amendment or repeal and replacement of the Constitution. Such a Bill had to be passed by a two thirds majority of the whole number of members (including those not present) of the National State Assembly voting in its favour.
1.11.1 The Present Parliament
1.11.l The Government of the United National Party, claiming to have a Mandate of the people obtained on the 21 st July,1977, drafted and adopted a New Constitution in 1978, called the Constitution of the Democratic Socialist Republic of Sri Lanka to replace the Constitution of 1972.
1.11.2 The last paragraph of the Preamble reads as follows: "We the freely elected representatives of the People of Sri Lanka, in pursuance of such Mandate, humbly acknowledging our obligations to our People and gratefully remembering their heroic and unremitting struggle to regain and preserve their rights and privileges so that the Dignity and Freedom of the Individual may be assured, Just, Social, Economic and Cultural Order attained, the Unity of the Country restored and Concord established with other Nations, do hereby adopt and enact this Constitution as the Supreme Law of the Democratic Socialist Republic of Sri Lanka."
1.11.3 In adopting and enacting this Constitution the National State Assembly was acting under the powers it had under Article 44 of the Constitution of 1972. It could not have been otherwise. It was not a Constituent Assembly, nor did it claim to be such, but was the National State Assembly acting within its legislative powers to replace the old Constitution. The letters imposed by the proviso to Article 44 and by Article 45 had to be imposed on the new `replacement' Constitution as well, since the National State Assembly could not grant to the successor it created such powers it did not itself have.
1.11.4 The Constitution so enacted which is the present Constitution had the Democratic structure of the earlier Constitution with some special features the most important being that there was to be an Executive President elected directly by the People. The legislative Power of the Parliament was provided for by Article 75 which was in almost identical terms as Article 44 of the earlier Constitution with the same restrictions that Parliament could not make Laws suspending the operation of the Constitution or any part thereof and repealing the Constitution without replacing it with a new Constitution.
1.11.5 Article 76 was also in almost the same terms as Article 45 of the earlier Constitution that Parliament could not abdicate or alienate its legislative power to any other body or authority. ln fact Article 76 was even more emphatic in that it said the Parliament shall not abdicate its powers while the earlier Constitution merely said it may not abdicate.
1.11.6 The procedure to be adopted to amend or repeal the Constitution or any part thereof was provided for by Article 82 of the Constitution. Article 82( 1 ) provided for the amendment of any provision of the Constitution, provided the amendment was expressly specified and described in the long title as an amendment of the Constitution. Article 82 (2) allowed for the repeal of the Constitution provided a new Constitution to replace it was included and the long title described the Bill as an Act to repeal and replace the Constitution. Article 82 (5) provided that a Bill to amend any provision of the Constitution or repeal and replace the Constitution required a two third majority of all the members of Parliament voting for it including those not present.
1.11.7 Article 83 was a new Article included in this Constitution. A similar one was not there in the Constitution of 1979. This allowed for the amendment, repeal and replacement of or inclusion of anything inconsistent with Articles 1,2,3, 6,7,8,9,10 and 1 I or of Article 83 itself, if the number of votes cast in favour of it amounted to not less than two thirds of the whole number of members of the House voting for it (including those not present) and the People approved it at a Referendum. Articles 1,2,3,6,7,8,9, 10 and 11 have been referred to as "entrenched" Articles.
1.11 .8 Article 1 refers to the fact that Sri Lanka is a free, Sovereign, Independent and Democratic Socialist Republic. Article ? states that Sri Lanka is a Unitary State. Article 3 states that in Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of Government, fundamental rights and the franchise. Article 4 refers to the exercise of Sovereignty which was to be enjoyed in the following manner namely the legislative power was to be in Parliament whose members were to be elected by the People and by the People at a Referendum; the executive power of the People was to be exercised by the President elected directly by the People, and the, judicial power was to be exercised by Parliament through Courts established by the Constitution or by law. Articles 5,6,7 and 8 referred to the Territory of the Republic, the National Flag, the National Anthem, and the National Day. Article 9 gave Buddhism the foremost place, Article 10 that fundamental rights were to be conserved and Article I I that torture and degrading and inhuman punishments were prohibited. These are the Articles referred to in Article 83.
1.12 Articles 75 and 76 of the present Constitution
l.12.1 Article 75 states Parliament shall have power to make laws including laws having retrospective effect and repealing or amending any provision of the Constitution, or adding any provision to the Constitution Provided that Parliament shall not make any law -
a) suspending the operation of the Constitution or any part thereof, or b) repealing the Constitution as a whole unless such law also enacts a new Constitution to replace it.
l.l2.2 Article 76 states
( 1 ) Parliament shall not abdicate or in any manner alienate its legislative power, and shall not set up any authority with any legislative power.
(2) It shall not be a contravention of the provisions of paragraph (7) of this Article for Parliament to make, in any law relating to public security, provision empowering the President to make emergency regulations in accordance with such law
(3) It shall not be a contravention of the provisions of paragraph ( 1 ) of this Article for Parliament to make any law containing any provisions empowering any person or body to make subordinate legislation for prescribed purposes, including the power(4) Any existing law containing any such provision as aforesaid shall be valid and operative
1.1.2.3 As these two Articles are not "entrenched" Articles, i.e. they do not come under the provisions of Article 83, at first sight it would appear that they can be amended or repealed by a two third majority in Parliament by virtue of the provisions in Article 82 (5).
1.12.4 But suppose Parliament repeals the provisos (a) and (b) to Article 75 with a two thirds majority in Parliament and thereafter suspends the operation of the Constitution, or repeals the Constitution as a whole without enacting a new Constitution to replace it, Parliament would have used the legislative power conferred on it by the amended Article 75 to deprive the country of a Constitution. Suppose again, Parliament were to delete Article 76 and at the same time amend Article 4 (which is not an entrenched Article requiring a Referendum) and gives all power to legislate to the Executive President, the country would be saddled with a dictatorship.
1.12.5 This is exactly what happened in Germany when Hitler came to power. If we may recall what William Shirer says in his book The Rise and Fall of the Third Reich at p.273-4: " The plan was deceptively simple and had the advantage of cloaking the seizure of absolute power in legality. The Reichstag (the German Parliament) would be asked to pass an 'Enabling Act' conferring on Hitler's cabinet exclusive legislative powers for four years. Put even more simply the German Parliament would be requested to turn over its constitutional functions to Hitler and take a long vacation. But since this necessitated a change in the Constitution, a two third majority was needed to approve it. "This two third majority Hitler got by arrestin5 the Communist MPs and using intimidation and thuggery on the rest of the opposition. (Today, of course, more sophisticated methods will be used) The German Constitution of the time clearly did not have Articles similar to ours restricting the legislative power of Parliament.
1.12.6 What this makes clear is that, even though Articles 75 and 76 are not entrenched Articles they are even more important than those Articles, since they go to the very root of the democratic process and are the only Articles that ensure the separation of powers that is to say, that no other person or authority shall accrue and exercise the legislative power of the Parliament. which is one of the fundamental features of a democracy.
1.12.7 An Article similar to Article 76 is not included in the Draft Constitution though an Article similar to Article 75 is present, namely, Article 88 of the Draft Constitution. What this means, is that the new Parliament would be able to abdicate or alienate its legislative power to any one or any body such as the President or Regional Council and give away its power even in the case of those subjects covered by the Reserved List, by a two thirds majority. . What we envisaged can now come to pass and the Parliament can take a long holiday as the German Parliament did after giving away its powers to Hitler.. But the Parliament has no power to delete Article 76 when enacting a new Constitution due to the prohibition in Article 76.
1.12.8 As H. L. A. Hart has stated in his book Concept of' Law. "A written Constitution may restrict the competence of a legislature not merely by specifying the form and manner of legislation (which we may allow not to be limitations) but by excluding altogether certain matters from the scope of its legislative competence .thus imposing limitations of substance." (p.67)
1.12.9 If, therefore, democracy is to be preserved it follows that the present Parliament has no legislative competence to enact a Constitution that does not contain the equivalent of Article 76, which prohibits the setting up of any authority other than itself with any legislative powers. It also follows that the present Parliament cannot enact a Constitution giving full legislative powers to the Regional Councils as proposed in Article 3(a) of the Draft Constitution which reads as follows: "the legislative powers of the People shall he exercised by Parliament, Regional Councils and the People at a Referendum." This Article would be inconsistent with and in violation of Article 76 in so far as it purports to grant plenary legislative powers to the Regional Councils.
1.13 The Republic of Sri Lanka is a Unitary State
1.13.1 Article 2 of the present Constitution as well as Article 2 of the UF Constitution of 1972 stated that Sri Lanka is a Unitary State.
1.13.2 In its opinion given by the Supreme Court on the 13`" Amendment to the Constitution the majority of the Bench stated, 'The term Unitary 'in Article 2 is used in contradistinction to the term 'Federal' which means an Association of semi autonomous states 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 power of the central Government is unrestricted. The essential features of a Unitary State are ( I) the supremacy of the central Parliament and (2) the absence of subsidiary sovereign bodies.
1.13.3 It does not mean absence of subsidiary law making bodies, but it does mean they may exist and can be abolished a t the discretion of the central authority. It does therefore mean that by no stretch of meaning of words can those subsidiary bodies he called subsidiary sovereign bodies and finally, it means there is no possibility of the central and other bodies coming into conflict, with which the central government has not the power to cope. Thus it is fundamental to a Unitary State that there should be ( 1 ) Supremacy of the central Parliament (2) the absence of subsidiary sovereign bodies.
1.13.4 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. The existence of co-ordinate authorities independent of each other is the gist of the federal principle. The Federal Government is sovereign in some matters and the State government in others. Each within its own sphere exercise its powers without control from the other and neither is subordinate to the other. It is this feature which distinguishes a federal from a unitary Constitution; in the latter sovereignty rests only with the central government.
1.13.5 Dr Wheare in his book "Modern Constrictions" 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 of 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 turn exercise their powers without being controlled by the central government. In particular the legislature of the whole country has limited powers and the legislature of the State 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. It may permit other legislatures to exist and to exercise their powers, but it has the right, in law, to overrule them; they are subordinate to it"
1 13.6 The Court then went on to say "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 its executive capacity no independent or exclusive power is vested in the Provincial Councils. The Parliament and President have ultimate control over them and they remain supreme.
1.13.7 The majority of the Court after further consideration o