We will now consider the Government's Draft. This
is done under three heads (I) whether the present Parliament has the
legislative power to pass such a Constitution into Law (2) the political
implications of the Devolution Package and (3) how such a Constitution
will affect the economy of the country in the future.1. Whether the
present Parliament has the legislative power to pass such a Constitution
into Law.
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 of the submissions went on to say "in our view no division
of sovereignty or of legislative, or of judicial power has been effected
by the 13th Amendment Bill or by the Provincial Council Bill. The national
government continues to be legally supreme over all of the other levels or
bodies The provincial councils are merely subordinate bodies. Parliament
has not parted with its supremacy or its powers to the provincial
councils. In our view, the Republic of Sri Lanka will continue to be a
Unitary State and the Bills in no way affect its unitariness."
1.13.8 The minority of the Bench did not fall in
with this interpretation of the two Bills and were of opinion that the
supremacy of Parliament was affected and Sri Lanka would cease to be a
Unitary State and "that the l3th Amendment seeks to create an arrangement
which is structurally in conflict with the structure of the Constitution
and with its provisions both express and implied. Further, the provisions
of the I3th Amendment contravenes both the express and implied provisions
of the Constitution' The Bills in consequence required to be passed by a
two thirds majority and a Referendum as required by Article 83.
1. 13.9 In the present Constitution Article 1 says
'Sri Lanka is a Free, Sovereign, Independent and Democratic Socialist
Republic and shall be known as the Democratic Socialist Republic of Sri
Lanka, and Article 2 " The Republic of Sri Lanka is a Unitary State. In
the draft Constitution th.ese two Articles are to be deleted and in its
place substituted an Article I which reads as follows: "Sri Lanka is a
united and Sovereign Republic and shall be known as the Republic of Sri
Lanka. The Republic of Sri Lanka shall be an indissoluble Union of
Regions' If this Constitution is adopted Sri Lanka will cease to be a
Unitary State and become a Federal State whatever the terminology adopted
to hide this fact from the public. Government spokesmen use many words on
every conceivable occasion to confuse the public about this very important
fact that what is proposed is clearly a Federal Constitution. They even
cite the late Mr. S.W.R.D. Bandaranaike as having advocated Federalism in
the twenties hiding the fact that he later abandoned the idea as a more
mature politician. Jane Russel in her book entitled 'Communal politics
under the Donougmore Constitution 'says' by 1928 Bandaranaike had
abandoned his Federal idea, in favour of Sinhala nationalism.
1.13.10 The question that arises then is whether
it is possible to delete Article 2 so that Sri Lanka would cease to be a
Unitary State. At first sight it would appear to he possible to do this
under the provisions of Article 83, that is with a two third majority in
Parliament and a Referenduin. However we will once again examine the basic
structure of the Constitution.
1.l3.11 In Kesavananda Bharati's Case 1973
A.I.R(SC) 14(i 1 the Supreme Court of India sought to explain and
illustrate what they thought were the features that would constitute the
basic structure of the Constitution. Among them were ( I ) the supremacy
of the Constitution (2) the republican and democratic form of the
Government (3) the secular character of the Constitution (4) the
separation of powers (5) the federal character of the Constitution (6) the
sovereignty of India (7) the Unity of India and (8) Individual freedoms.
1 .13 12 It may be noted that the Indian Supreme
Court stated, that one of the basic features of the Indian Constitution is
its federal character. It was not possible for the Indian Parliament to
pass laws converting India into a unitary state. In the same way, in the
case of Sri Lanka, since both the 1972 and 1978 Constitutions stated that
Sri Lanka is a unitary state and this was the position even in the
Soulbury Constitution, in our view this constitutes a 'c structure of our
Constitution. In this connection we would refer to basis the comment made
by the J. R. Jayewardene government when the TULF proposals submitted to
Prime Minister Rajiv Gandhi were presented to it. 'The TULF proposal
ignores the fact there is no precedent any where in the world of a State
which has had a Unitary form of government for an unbroken period of
nearly two centuries of its history being carved up into ' separate States
to form a federation, supposedly in the interests of achieving greater
national unit. Federalism as a system of government has been fashioned to
meet a situation where existing independent states have agreed to come
together, surrendering a very substantial measure of their sovereignty in
the interests of a larger unity. What is now sought to be set in motion is
. the reverse process of a single State breaking up into separate units
and the fragmentation of an existing undivided sovereignty.' Hansard, Feb
20 I 986, col 66 para 11.
1.13.13 To quote Hart again, from his book The
Concept of Law. p.67 A written Constitution may restrict the competence of
the 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.' Again he says at p.68 A
constitution which effectively restricts the legislative powers of the
supreme legislature in the system does not do so by imposing duties on the
legislature not to attempt to legislate in certain ways; instead it
provides that any such purported legislation shall be void. It imposes not
legal duties but legal disabilities. Limits' here implies not the presence
of duty but the absence of legal power'. 'As we have stated, we are of the
view that a basic feature of our Constitution is that it is the
Constitution of a Unitary State. No law passed by Parliament can change
this basic feature under the powers it has. In these circumstances, we are
of the view that the present Parliament being a creature of the present
Constitution cannot delete Article 2 in the manner sought to be done by
the Government's proposals.
1.13.14 To summarise our views, we consider that
any new Constitution to replace the present Constitution should have
Articles similar to Articles 2, 75 and 76. This is because in the case of
Article 2 the Unitary status comprises part of the basic structure of our
Constitution in the sense stated by the Indian Supreme Court in the
Kesavananda s case, while Article 75 ensures that the country will not be
left without a Constitution, and Article 76 is the only Article that
ensures the separation of powers, as said before so that these are the
only Articles that can prevent our democratic state being converted into a
dictatorship by legal means (and not through a revolution) as was done by
Adolf Hitler in Germany. This is the reason why the provisions of Articles
2, 44 and 45 of the 1972 Constitution were carried over into the 1978
Constitution. They must be carried over into any future Constitution.
1.13.15 It therefore follows, as we have already
stated, that Parliament does not have the legal power to enact a new
Constitution containing Article 3(a) giving legislative power to Regional
Councils as it would be a violation of Article 76.
1.13. 16 This absence of legal power also flows
from the fact that Parliament is the sole authority elected by all the
people and hence the sole authority representing all the people (once the
Executive Presidency is abolished). Therefore the legislative power of the
people can only be exercised by an authority representing all the people,
which is the Parliament. This supreme power of the people or any part
thereof cannot be conferred on any authority that is not elected by all
the people. We deal with this aspect in greater detail below.
1.14 Sovereignty
1.14.1 Article 3 of the Draft Constitution, States
"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 and shall be exercised and enjoyed in the
following manner:
(a) the legislative powers of the People shall be
exercised by the Parliament, Regional Councils and the People at a
Referendum,
(b)the executive powers of the People shall be
exercised by the President acting on the advice of the Prime Minister and
the Cabinet of Ministers, the Governors acting on the advice of the
respective Chief Ministers and the Regional Boards of Ministers to the
extent hereinafter provided,
(c) the judicial powers of the people shall be
exercised through the courts, tribunals and institutions created and
established, or recognised by the Constitution, or created and established
by law, except in regard to matters relating to privileges, immunities and
powers of Parliament and of its members, wherein the judicial powers of
Parliament may be exercised directly by Parliament according to law.
(d) (this relates to fundamental rights)
(e) (this relates to the franchise)
1.14.2 Article 3 thus states that in Sri Lanka
sovereignty is in the People and is inalienable. Sovereignty means the
supreme power in the country and this is vested in all the people. The
people's Supreme power has three limbs:
(i) the Legislative power
(ii) the Executive power
(iii) the Judicial power
1.14.3 The statement that Sovereignty is
inalienable means that these powers given above can be exercised only by
the people themselves and cannot be alienated to anyone else. Now in a
representative democracy the people's powers are not exercised directly by
the people themselves, except in the case of a Referendum, but by their
representatives, that is by the representatives of all the people acting
collectively.. This means that the people's representatives cannot
alienate or give away to anyone e)se the people's legislative, executive
or judicial power. What this means is that the legislative, executive and
judicial, powers can be exercised only by Parliament, or any other
authority elected by all the people and therefore representing al) the
people. It is for this reason that the present Constitution states in
Article 4:
(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 recognised, by the Constitution, or created and
established by law, except in regard to matters relating to privileges,
immunities and powers of Parliament and of its members, where the judicial
power of the People may be exercised directly by Parliament according to
law.
(d) and (e) relate to fundamental rights and
franchise.
1.14.4 It will be noted that the legislative power
of the People can be exercised by Parliament elected by the People or by
the People themselves (at a Referendum) The executive powers of the People
are exercised by the President who has been elected by all the People and
is therefore representative of all the People. Therefore, here there is no
alienation of sovereignty, since all the these powers are exercised by
representatives of all the People or the People themselves (at a
Referendum). The position was the same in the 1972 Constitution and was
clearly set out in Articles 3.4, and 5.
Article 3: In the Republic of Sri Lanka,
Sovereignty is in the People and is inalienable.
Article 4: The Sovereignty of the People is
exercised through a National State Assembly of elected representatives of
the People.
Article 5: The National State Assembly is the
supreme instrument of State power of the Republic.
1.14.5 The National State Assembly exercises :
(a) the legislative power of the People.
(b) the executive power of the People, including
the defence of Sri Lanka, through the President and Cabinet of Ministers
and
(c) the judicial power of the People through
courts and other institutions created by law except in the case of matters
relating to its powers and privileges, wherein the judicial power of the
People may be exercised directly by the National State Assembly according
to law.
l.14.6 We can see from the above that both in the
1972 Constitution and the 1978 Constitution, the legislative, executive
and judicial) powers of the People are exercised by representatives
elected by all the people, namely the National State Assembly in the 1972
Constitution and by Parliament and the President elected by the People in
the case of the 1978 Constitution or by the People themselves in the case
of a Referendum. There has therefore, been no alienation of the
Sovereignty of the People in either case. The position is quite different
in the case of Article 3 of the Draft Constitution.
1.14.7 Article 3(a) of the draft Constitution
states that the legislative power of the People shall be exercised by
Parliament, Regional Councils and the People at a Referendum. Regional
Councils are not elected by all the People but only by the people of each
Region. Conferring the legislative powers of the People, or any part
thereof, on an authority not elected by all the people and therefore not
representative of all the People would be an alienation of the Sovereignty
of the People, which is forbidden. Parliament therefore has no legal
competence to enact Article 3(a) of the Draft Constitution conferring
legislative powers on Regional Councils. The same considerations apply to
the proposed Article 3(b) which states that the executive power of the
People shall be exercised by the President of the Republic and the
Governors of the Regions. The Governors are appointed by the President on
the advice of the Chief Ministers of the Regions (Chapter (III) Article
10(2). The Governor will therefore be a nominee of the Chief Minister of
the Region. The result of Article 3(b) would then be to confer part of the
executive power of the people on a person (the Governor) who is not a
representative of al) the People. This would be an alienation of the
executive power of the People which is forbidden. It may be remembered
that in the l3th Amendment of the present Constitution, the Governor of a
Province is appointed by the President, not on the advice of the Chief
Minister of the Province, but at the Presidents discretion and holds
office in accordance with Article 4 (b) at the pleasure of the President
(Article 154 A(2)) of the present Constitution. Here there is no
alienation of the executive power as the Governor is clearly the delegate
of the President, who is himself a representative of the People, having
being elected by all the People.
1.14.8 To summarise our views, therefore, Articles
3(a) and 3(b) of the Draft Constitution which provide for pa,-t of the
legislative power of the People to be exercised by the Regional Councils
and part of the executive power of the People to be exercised by the
Governors of the Regions would result in the alienation respectively of
the legislative and executive power of the people, and hence be an
alienation of the Sovereignty of the People which is inalienable.
Parliament has, therefore, no legal competence to enact the proposed
Articles 3(a) and 3(b). As far as Article 3(a) is concerned we have
earlier pointed out that Parliament has no power to enact it, as it would
violate the provisions of Article 76. We have given here another reason
why this Article cannot be enacted into law by Parliament.
1 .14.9 This of course does not prevent Parliament
from setting up bodies and granting them powers of subordinate
legislation, but such legislation can always be overruled by Parliament.
In the words of Dr. Wheare which we have referred to earlier, "it may
permit other legislatures to exist and to exercise their powers, but has
the right in law to overrule them, the are subordinate to it."
1.15 The Proposed Referendum
1.15.1 In view of the recent announcement by the
President that the government intends to place the draft constitution
before the people, we express our views with regard to this proposed move.
It is presumed that the government intends to invoke the provisions of
Article 86 as there are no other constitutional means by which such an
exercise can be conducted. '
1.15.2 Article 86 reads as follows: "The President
may, subject to the provisions of Article 85, submit to the People by
Referendum any matter which in the opinion of the President is of national
importance,"
1.15.3 No one doubts that the 'package' is a
matter of "national importance" and at first sight it would appear that
placing the 'package' before the people at a referendum comes well within
the powers conferred on the President by Article 80. However, there are
other issues that have to be considered in regard to this question. In the
first place this particular matter of "national importance" did not come
out of the blue. It is a matter that has already been placed before
Parliament by the government, and in respect of which Parliament has
appointed a Select Committee which has been deliberating on it for over a
year.
1 .1.5.4 The question that arises is whether the
government, having placed this matter before Parliament and having
activated Parliamentary procedures for its consideration by setting up a
Select Committee is not now estopped from placing the same matter before
the people at a referendum without completing the required Parliamentary
procedures. If the whole process is now to be removed from the purview of
Parliament and the President attempts to place the proposals directly
before the people, it will be seen as a move by the executive to bring
external pressure on Parliament and also be in contempt of it.
1.15.5 Secondly, the matter of "national
importance" in this instance involves an amendment of the Constitution.
The Constitution has a special Chapter
- Chapter XII, entitled "Amendment of the
Constitution" and containing Articles 82 and 83 detailing the manner in
which amendments to (including repeal of the Constitution should be
effected. The question that then arises is whether such a matter of
"national importance" involving amendment to the Constitution can be made
the subject of a referendum without going through the procedure laid down
in the Constitution for its amendment. In other words, the question is
whether matters of "national importance" mentioned in Article 86 refer to
matters other than those involving a n amendment to the Constitution, it
being mandatory under the Constitution that any matter amending the
Constitution should be determined in accordance with the procedure laid
down in Articles 82 and 83.
1.15.6 This interpretation is also confirmed by
the fact that Article 86 is "subject to the provisions of Article 85" and
Article 85(2) states that the President may submit to the people by
referendum any Bill which has been rejected by Parliament provided it is
not a Bill "for the repeal or amendment of any provision of the
Constitution or for the addition of any provision to the Constitution, or
for the repeal and replacement of the Constitution or which is
inconsistent with any provision of the Constitution." Therefore, since
Bills dealing with the Constitution including any Bill for the repeal and
replacement of the Constitution are outside the purview of Article 8 , it
follows that no matter dealing with the Constitution (even if it is not a
Bill) can be subjected to the provisions of that Article. In other words,
all matters relating to amendments to the Constitution are the
responsibility exclusively of Parliament (and the People in those cases
where Article 83 applies) the President having no voice whatsoever.
1.15.7 This, of course, is in accordance with the
principle of the separation of powers, under which the executive is
deprived of any legal competence in any matter relating to legislation.
The only exception is the power granted to the President to make emergency
regulations under the Public Security Ordinance (Article 155)..This
exception has been made in order to meet special situations where even the
security of the state may be in jeopardy. But even here, the Parliament
retains overall control by the requirement that such regulations would
lapse unless they are approved by Parliament within fourteen days of their
promulgation. Furthermore, the regulations will be in force for only a
month, thus requiring Parliamentary approval once a month.
1.15.8 Therefore, what it means is that, the
Executive President, has, under the Constitution, absolutely no function
to perform in regard to legislation involving any amendment or repeal of
the Constitution which is the prerogative solely of Parliament and the
people where Article 83 applies.
1.15.9 Thus any action taken by the President to
place before the people under Article 86 any matter relating to the
amendment or repeal of the Constitution will be wholly illegal and an
abuse of power. We might add, that as far as legislation is concerned, the
issue here is not solely what the majority of the people might wish, as
the President seems to think ,but, in the democratic and representative
form of government now obtaining in this country, what primarily matters
are the views of the elected representatives of the people in Parliament,
the people coming into the legislative process only in certain exceptional
circumstances (Article 83), and here too only after Parliament has first
expressed its views. Parliament cannot, therefore be bypassed or ignored
by the executive in any matter relating to legislation affecting the
Constitution.
1.15.10 Before we conclude we would like to quote
the following statement of Dr. N. M. Perera in his book "Critical Analysis
of the new Constitution of Sri Lanka promulgated on 31.8. 1978". "Highly
controversial emotional questions that would excite and arouse emotional
outbursts of a communal nature must be eschewed if a referendum is not to
redound to the lasting detriment of the country." Dr Perera further added
"When one sieves out... .... . . . major national issues, those that
percolate for referendum consumption are questions like prohibition,
compulsory military service, age of retirement for all employees etc."
1.15.11 These are wise words of an experienced and
mature politician. They should be carefully read and pondered over by
those who glibly advise a referendum as a cure for all our ills.
1.16 Mode of introduction of a new Constitution.
1.16.1 This leads us to a consideration of the
manner in which the Articles in the Constitution can be amended or
repealed. In so far as repeal or amendment are concerned, the Constitution
may be regarded as bifurcated' in the sense that certain Articles can be
amended or repealed by Parliament alone with a two third majority. while
certain other Articles, namely, those referred to in Article 83, cannot be
repealed or amended by Parliament alone but must first receive a two third
majority in Parliament and thereafter receive the approval of the people
at a referendum. It follows, that in regard to the first set of Articles,
Parliament is the sole authority that has the legal power to amend or
repeal them, the people having no role to play whatsoever, the people's
role being confined solely to the Articles mentioned in Article 83. It is
our view, that what must be put before the people are simply whether they
approve or reject the amendments or repeal of the entrenched' Articles
only and not matters outside them. Any attempt, therefore, to place before
the people at a referendum. amendment or repeal of any Articles, other
than those specified in Article 83 would be a violation of the
Constitution.
1.16.2 We are of opinion, therefore, that there is
only one way in which the present Constitution can be repealed or replaced
by a new Constitution. The whole of the proposed new Constitution must
first be introduced as a Bill under the provisions of Article 82 and a two
third majority obtained in respect of all the Articles. Thereafter those
Articles in the Constitution which amend or repeal any of the Articles
specified in Article 83, and those Articles alone, should be submitted to
the people for approval at a Referendum. Since the Devolution Package
involves an amendment of Article 2 (relating to the Unitary State) the
'package' has to receive the approval of the people after, as we have
said, it has been passed by a two third majority in Parliament.
1.16.3 However, we have shown above why we
consider that Parliament does not have the legal competence to repeal
Article 2
1.16.4 It also follows from the above analysis of
the Constitution that the abolition of the executive Presidency is a
matter for Parliament alone, since none of the Articles relating to the
executive Presidency figure in Article 83. Any attempt to place this
matter before the people at a Referendum would therefore be illegal.
1.16.5 The "Doctrine of Necessity": The Minister
of Justice and Constitutional Affairs, in a statement published in the
Sunday Observer of 5th January I 997 stated, "The time has come to bring
the process to a conclusion. While every effort will be made to consummate
the process within Parliament itself there is complete justification for
the President's resolve to resort to a
"constitutional" revolution, if circumstances
require this." He did not give details of what he meant by a
"constitutional" revolution. But a lawyer witness supporting this idea,
submitted that in many other countries such as Nigeria, Uganda, Pakistan
and Bangladesh, the doctrine of necessity was invoked and recognition
afforded to the new order by the courts after an illegal seizure of power
by a military junta or group of revolutionaries. The courts accepted the
reality and gave it legitimacy. Otherwise, there would have been anarchy
and chaos.
1.16.6 But no such conditions exist in this
country today. It would amount to High Treason if there is an illegal
seizure of power or coup-d'etat by the leaders of this government, who
have been elected to uphold the present Constitution and took an oath to
do so before they took office. If the Government wants to amend or even
repeal the Constitution they must follow the method given in the
Constitution itself, and not attempt to do so by unconstitutional means.
1.16.7 Furthermore, we must bear in mind the
concept of Mahasammata (approved or elected by the people) which is
axiomatic in our jurisprudence. Accordingly, the king or ruler should be
the first to uphold the law or Dharma. Any failure to do so would amount
to a transgression entailing severe penalties depending on the seriousness
of the transgression. Our history is not totally lacking in examples.
2. Political Implications of the Devolution
Proposals.
2.1 We have shown above why the Parliament has no
legal power to pass into law the Draft Constitution in its present form.
Assuming, without conceding, that they could, we are of the view, that the
Draft Constitution, if implemented, would have disastrous political and
economic consequences for Sri Lanka. We now give our reasons for saying
so.
2.2 The Unitary State.
2.2.1 We have expressed our views, in regard to
the question of the Unitary State and pointed out that we consider that
the Parliament cannot omit Article 2 of the present Constitution from any
proposed new Constitution. However in the draft Constitution, Article 2 as
well as Article 1 are to be deleted and replaced by an Article reading:
"Sri Lanka is a united and sovereign Republic and shall be known as the
Republic of Sri Lanka. The Republic of Sri Lanka shall be an indissoluble
Union of Regions".
2.2.2 Furthermore Article 3(a) states: "the
legislative power of the People shall be exercised by Parliament, Regional
Councils and the People at a Referendum".
2.2.3 The effect of these two Articles is to
convert Sri Lanka from a Unitary State into a Federal State.
2.2.4 However, the effect of the Government's
proposals is not only to convert Sri Lanka from a Unitary State into a
Federal State but to convert it into a federal state of a very special
kind, one which probably does not exist anywhere else in the world, where
the Central Government is rendered almost impotent in respect of a large
number of matters that are of vital importance to the people. One reason
for this is the abolition of the Concurrent List.
2.2.5 As we are aware the I3th Amendment to the
Constitution which introduced Provincial Councils divided the powers of
government into three Lists - List 1 (Provincial Council List), List I 1 (
Reserved List) and List III (Concurrent list).
2.2.6 One of the main features of the Draft
Proposals when compared with the 13th Amendment is the abolition of List
III or the Concurrent List. According to spokesmen for the 'package' it is
necessary to abolish the Concurrent List as the presence of this List
makes meaningful devolution impossible. An examination of existing federal
constitutions shows that this is far from the truth.
2.2.7 INDIA: The seventh schedule to the
Constitution of India has three Lists, giving Union powers, State powers
and Concurrent powers. These powers were drawn up with the specific
purpose of providing for a strong Centre since the framers of the
Constitution were convinced of the necessity for a strong Centre in the
best interests of the country. Attention has been drawn to the strong
centralising features of the Indian Constitution which some say the I3
Amendment lacked. Since the Government's devolution package goes much
further than the l3th Amendment in devolving power, the Centre in Sri
Lanka would be much weaker than under the l3th Amendment
22.8 MALAYSIA: The ninth Schedule of the Federal
Constitution of Malaysia contains three Lists, List 1 (the Federal List),
List 2 (the State List) and List 3 (the Concurrent List). An examination
of these three lists shows that the Malaysian Central Government is
extremely powerful and the States comparatively weak.
2.2.9 NIGERIA: The Nigerian Constitution is of
special interest in view of the attempted secession of Biafra in 1966.
This Constitution has only two Lists the Exclusive list and the Concurrent
List. There is no third List giving exclusive powers to the States. This
means that the Central Government has not surrendered any of its powers
but permits the states to h ive concurrent power with the Centre in some
matters.
22.10 GERMANY: The Basic Law of the Federal
Republic of Germany provides for 'Areas of exclusive legislation' for the
Federation (Article 73) and 'Areas of concurrent legislation (Article 74).
2.2. 11 Article 72 (Concurrent legislation of the
Federation) states:
(1) In matters of concurrent legislation the
Lander have the right to legislate as long as and to the extent that the
Federation does not exercise its legislative powers.
(2) The Federation has the right to legislate
where
- ( 1 )a matter cannot be effectively regulated
by the legislation of the individual Lander; or
- (2) regulation by a Land might prejudice the
interests of other Lander or the country as a whole
- (3) the maintenance of legal and economic
unity, especially uniform living conditions beyond the territory of any
Land, calls for Federal legislation.
2.2.12 In this connection it is interesting to see
that under the German Constitution, among ?4 items appearing under Article
74 (Areas of concurrent legislation), are the following:
11. economic affairs (mining, industry, energy,
crafts and trades, commerce, banking, the stock exchange system and
private insurance.)
16. measures to prevent abuse of economic power
17. promotion of agricultural production and
forestry, food, security, import and export of agricultural and forestry
products, deep sea and coastal fishing and coastal preservation
18. real property transactions, land law and
agricultural lease as well as housing and land settlement.
2.2.13 It will be seen from this that even a
country that is so clearly federal as the Federal Republic of Germany, has
found it necessary to ensure that the Federal (Central) government should
keep control of the above important matters concerning economic affairs,
agriculture and forestry and land settlement. It should be remembered that
according to Article 72 ( I ) of that Constitution in regard to the above
matters the States (Lander) have the right to legislate only if the Centre
has not exercised its legislative power Furthermore, the Federation has
the right to legislate where "regulation by a Land might prejudice the
interests of other Lander or the country as a whole".
2.2.14. In the light of the examples of federal
constitutions cited above constitutions that have stood the test of time
and been found satisfactory the statements made by advocates of the
devolution package that the presence of the Concurrent List in the 13th
Amendment makes meaningful devolution impossible, are seen to be a
travesty of the truth. They are merely repeating the arguments put forward
by Tamil politicians who are determined to obtain absolute power over all
internal matters in the north and east - including police powers and power
over state land - in order not only to keep out the Sinhala people from
these areas but to fashion a springboard for the eventual creation of
Eelam.
2.2.15 As far as Sri Lanka is concerned, with the
abolition of the Concurrent List the devolution proposals would confer
such wide and exclusive powers on the Regions as to make them, to all
intents and purposes, almost independent states in so far as internal
matters are concerned with the government being rendered almost totally
impotent -a situation that is fraught with the most serious consequences
for the future of the country and of the Sinhala people.
2.2.16 Thus Article IS(2) states that the Regional
Council of a Region has exclusive power to make Statutes for such Region
or any part thereof with respect to any of the matters enumerated in List
II of the Second Schedule (referred to as the Regional List.)
2.2.17 It will be clear from the above that the
legislative powers conferred on the Regions in respect of the 46 devolved
subjects are so extensive and untrammelled that each Regional Council can
do just what it pleases with scant regard for the effects of its actions
on other Regions or on the country as a whole with a powerless and
helpless government looking on. We examine below in some detail the
effects of this situation in regard to important matters such as the
economic development of the country.
2.3 The Unit of Devolution
2.3.1 Article 2( 1 ) of the proposals states that
" the territory of the Republic shall consist of Regions, the names and
boundaries and area of which are set out in the First Schedule, the
Capital Territory and its territorial waters"
2.3.2 The "First Schedule " referred to has not
been made available and the people are therefore being kept in the dark in
regard to one of the most important components of the package. In the
absence of an official statement our comments have to be based on what can
be gleaned from newspaper reports. According to these reports some Tamil
and Muslim political parties are preparing proposals to carve up the
Northern and Eastern Provinces on an ethnic basis with one part of the
combined North-Eastern Province constituting a Tamil majority area, with
another part constituting a Muslim majority area. However some eminent
Muslims as well as Muslim organisations who gave evidence before us were
strongly opposed to the setting up of a Muslim majority unit as they
feared that the setting up of such a unit would only create animosity
between communities. In particular they feared that such a step would lead
to the disruption of the harmonious relationship that exists between the
Muslims and Sinhala people.
2.3.3 For fifty years we have been able to avoid
introducing what the Donoughmore Commission called the "canker of
communalism" into our basic laws. Now that we are about to reach the
fiftieth year of our Independence are we to celebrate it by introducing
communalism into our Constitution and emphasising communal differences?
Clearly, these proposals are based on an acceptance of the Tamil claim
that the Northern and Eastern Provinces are the "traditional homelands" of
the Tamils. Otherwise, there are absolutely no reasons, whether on
geographical, economic or other rational grounds for the merger of these
two Provinces or any part thereof. Historians have clearly shown that the
"traditional homeland" claim is a myth. This should not therefore be taken
into consideration. It is hardly necessary to point out that acceptance of
ethnicity as a basis for dividing the country, will only create chaos. For
instance apart from the fears expressed by some Muslim individuals and
organisations referred to above, the leaders of the estate Tamils have
already voiced demands for the carving out of a division in which they
would comprise the majority. It follows that either we set our face firmly
against any division of the country on communal lines or be prepared to
see the increasing fragmentation of the country and disruption of the
communal harmony that now prevails.
2.4 The Substance of Devolution
2.4.1 As we have already mentioned, one of the
main differences between the l3th Amendment to the Constitution and the
government's devolution package, so far as the substance of devolution is
concerned, is the abolition of the Concurrent List. As we also pointed out
this would lead to a serious weakening of the Government and render the
Regions all-powerful in so far as internal matters are concerned. We deal
below with some of the more important consequences of these proposals.
2.4.2 (a) Legislative Power. Article 15(?) states
that "The Regional Council of a Region has exclusive power to make
statutes for each Region or any part thereof with respect to any of the
matters enumerated in List lI of the Second Schedule, (referred to as the
Regional List )" This means that, in respect of any of the 46 subjects
given in List II it is the Regional Council alone that has the power to
make laws. Parliament has no power to make any laws in regard to these
subjects or overrule the statutes or laws enacted by a Regional Council
even if they are detrimental to any community or Region or to the country
as a whole.
2.4.3 Moreover, according to Article IS(3) any
statute passed by a Regional Council on any devolved subject will overrule
any law that had been passed by Parliament on that subject, if it is
inconsistent with such law. This means that, for instance, in regard to
state lands, all existing laws that apply uniformly to the whole country
can be replaced by a Region by its own set of laws. But what is even more
alarming is that this provision in the Constitution will even enable a
Region to enact its own Penal Code and Criminal Procedure Code, since law
and order is a devolved subject. We therefore could have a situation where
what is not a crime in one Region is a crime in another Region. This means
that, not only in regard to crime and criminal procedure, but even in
regard to other matters that are of vital importance to the people -
education, health, agriculture, irrigation, fisheries - all uniformity
within the country will be lost and the people resident in one Region will
find laws imposed on them which are not imposed on people of another
Region. People travelling about the country will find that they come under
a different set of laws once they cross the border from one Region to
another and they will have to be aware of all these laws if they are not
to be punished for breaking them - especially in so far as the criminal
law is concerned. It will thus be seen that the effect of these provisions
would be to fragment the country into eight or nine parts, each with its
own set of laws in regard to a large number of matters affecting the lives
of the people. Going from one Region to another will be like going from
one country to another.
2.4.4 Under the 13"' Amendment "National Policy on
all subjects and functions" is reserved to the government. This made it
possible to ensure uniformity of policy throughout the country even in
regard to devolved subjects.
2.5 Law and Order
2.5. I Article 25 ( 1 ) states that "Law and order
shall be a subject devolved on the Regions and shall include public order
in the Region and exercise of police powers"
2.5.2 This would mean that each Region will have
its own police force under a Regional Police Commissioner who will be
appointed by the Chief Minister of the Region in consultation with the
Governor of the Region. As the Governor of the Region himself is appointed
by the President on the advice of the Chief Minister, it is clear that it
will be the wishes of the Chief Minister that will prevail in the
appointment of the Regional Police Commissioner.
2.5.3 Article 25(4) states that the Regional
Police Service shall not investigate offences against the following
categories of persons: President, Prime Minister, Speaker, a Minister, a
Deputy Minister, member of Parliament, a member of the National Judicial
Commission, a member of the National Public Service Commission, the
Secretary -General of Parliament, a member of the President's staff or of
the Staff of Parliament.
2.5.4 The draft proposals do not state who will
investigate such offences, for even though there is provision for setting
up a National Police Service headed by a National Police Commissioner,
nowhere are the functions of the National Police Service mentioned. We
presume that there is an omission here and that offences against the
individuals mentioned will be investigated by the National Police Service,
as is provided for by the I 3th Amendment to the Constitution.
2.5.5 According to the draft proposals, the
citizens of the Capital Territory of Colombo and Sri Jayawardenapura -
Kotte are left without police protection. Since this area is excluded from
the jurisdiction of the Western Regional Council, the Western Regional
Police Service will not be able to operate here.
2.5.6 Article 25(7) states that the Regional
Police Commissioner shall be responsible to, and be under the control of,
the Chief Minister in respect of the maintenance of public order in the
Region." Article 25(8) states that the
"Regional Police Service shall be responsible for
prevention, detection and investigation of all offences (except the
offences specified in paragraph (4) and that in the discharge of these
functions "the Regional Police Service shall be under the direction,
control and superintendence of the Regional Police Commissioner." Since
the maintenance of public order necessarily includes prevention detection
and investigation of offences, this means that the Regional Police
Commissioner will be under the control of two master's the Chief Minister
and the Regional Police Commission of which, incidentally, he himself is a
member.
2.5.7 The proposal to create two types of police
force, a Regional Police Service and a National Police Service with
overlapping functions in regard to matters that involve the personal
security of ordinary citizens will have the following results: (a) There
will have to be two police stations in every town - a National Police
Station and a Regional police Station. This will lead to duplication of
personnel and facilities such as buildings, vehicles etc. involving
additional expenditure. (b) In so far as offences against the person are
concerned, the citizens of this country will be divided into two groups.
One, (specially favoured'?) group mentioned in Article 25(4) will
presumably have the National Police Service to look after them, wherever
they may reside, while all other citizens will have to look to the
Regional Police Service of the Region where they reside. Here we find a
Constitution which states that there should not be discrimination itself
introducing discrimination between different categories of citizens. If a
Minister and his family are the victims of an offence, the Minister will
have to complain to the National Police while his family will have to
complain to the Regional Police. This same situation will arise in the
case of all those mentioned in Article 25(4).
2.5.8 All these anomalies and absurdities arise
because of the creation as we said of two different police forces with
overlapping functions in regard to offences against the person.
2.5.9 We are aware that there is similar provision
in the I3th Amendment to the Constitution but those provisions were never
implemented. Wrongs should not be repeated.
2.5.10 In addition to the above, the devolution of
power over police and law and order will have the following serious
consequences, if the Northern and Eastern Provinces are merged as demanded
by the Tamil politicians.
(1) Even if the Regional Council trains an army in
the guise of a police force the Government will not be able to stop it.
(2) The prevention of smuggling in of arms and
ammunition and drugs as well as of illicit immigrants over nearly 60oIo
percent of the coastline will be the responsibility of the Regional Police
Force, the Government having abdicated all responsibility in those
spheres. In these circumstances the very security of the state can be
jeopardised.
(3) If any subversive activity is carried on which
is detrimental to the security of the state the investigation and
prevention of such activities will be the responsibility of the Regional
Police Force. There is of course provision for the National Police to
investigate such threats to national security but we do not see in
practice the Regional Police Force and the Chief Minister allowing the
National Police Force to come in and conduct such investigations within
its Region, especially if such activities are undertaken with their
connivance. This will certainly be a source of conflict between the
Government and the Chief Minister.
(4) The safety of historic places of Buddhist
worship in these areas such as Nagadipa, Seruwila, Digavapi, and Tiriyaya
and the numerous archaeological sites will depend on the Regional Police
Force, and if vandals damage or destroy them and the Regional Police take
no action, as happened at Ayodhya in India, the government will be
helpless
2.5.11 The Tamil politicians have always objected
to what they call "Sinhala colonisation" in the North and East and have
regarded the Sinhalese as interlopers with no right to be settled on land
in what they consider their "traditional homeland". If these settlers are
harassed and even driven away, the Government will not be able to
intervene having abdicated all responsibility for law and order in regard
to persons and property in this area."
2.5.12 In view of the above reasons we are
strongly of the view that powers over law and order and the police should
not be devolved.
2.6 The Administration of Justice
2.6.1 The Administration of Justice within a
Region is a devolved subject. The regional Councils have full control over
this subject. It can therefore, pass any statute affecting this subject
and have its own Penal Code, Criminal Procedure Code and Civil Procedure
Code. The different Regions will therefore have their own Criminal and
Civil Procedure causing confusion all round. Mr. S. L Gunasekera,
Attorney-at- Law has in his book 'Tigers, Moderates and Pandora's
Package', made a careful study of the consequences to the administration
of justice in this country, if the proposals of the Government are ever
implemented. We fully endorse what he has stated there: "Added to the
fatal flaw of the elimination of the independence of the judiciary, are
the overwhelming Administrative problems inherent in the proposed system
that will bring the -judicial system of the country to a grinding halt."
(p.178)
2.62 "The most comical part of this entire
exercise lies in the fact that all these proposals are supposed to have
been formulated with good intentions. However, it is difficult to conceive
of a scenario in which a person motivated by the most malicious intentions
to subvert the entire judicial process of this Country could have done
better to achieve his objectives than by devising a scheme such as this".
(p.179)
2.7 The "Package" and Buddhism
2.7.l It is necessary now to examine what the
impact of the package will be on the future of Buddhism in Sri Lanka. With
the emasculation of the powers of the government, the future of Buddhism
in this country will indeed be bleak.
(1) The Sinhala Buddhist majority will be divided
and weakened by splitting the Sinhala majority areas into 2g en regions
with a very real possibility of disputes arising between them. Foreign
organisations will be able to meddle in the internal affairs of the
Regions and even set up one Region against another by means of financial
and other inducements. Proselytising activities can be carried on more
easily by suborning various authorities, with the Government being unable
to interfere.
(2) In contrast to the weakening of the Sinhala
Buddhist majority by dividing them, these proposals will strengthen the
Tamil minority by unifying them under a single Regional authority in the
North and East. As far as Buddhism in the North and East is concerned it
will be impossible to construct a new vihare on state land anywhere in
this area if a Regional Council refuses to allocate the land required.
Even the restoration or enlargement of existing temples may be impossible
if a Regional Council refuses permission for such improvements.
Pilgrimages to such places as Seruwila, and Nagadipa too may be affected,
if such pilgrimages are obstructed in any way and the Regional Council and
Regional Police fail to intervene. We know that in India, recently, the
Central Government had to deploy the armed forces to protect Hindu
pilgrims to a sacred shrine in Kashmir. Under these proposals our
Government may not even be in a position to do this.
2.7.2 Even the safety of these sacred places of
Buddhist worship cannot be assured as it wil) depend exclusively on the
regional police force.
2.7.3 In brief if these proposals are implemented,
it is unlikely that there can be further development of Buddhism in the
North and the East.
2.8 The All- Powerful Chief Minister
2.8.1 Under these proposals the Chief Minister of
a Region will become extremely powerful. He will be involved in the
appointment of: ( 1 ). the Governor of the Region [Art 10(2) ] (2), the
members of the Regional Judicial Service Commission [Art I 8 ( I ) I (3)
the members of the Regional Public Service Commission [Art 21 ( l ) 1 (4),
the Regional Police Commissioner [Art25(3)(a)1 who will also be a member
of the Regional Police Commission [Art25(3)(b)l
2.8.2 All the above have to be appointed with the
advice of, or in consultation with, the Chief Minister or the Governor,
which means in practice, they are all likely to be the Chief Minister's
nominees
2.8.3 In addition to this, the Chief Minister will
also be responsible for the maintenance of law and order as the Regional
Police Commissioner will he under his control. [Art 25(7)]
2.8.4 It should be noted that even appointment of
members of the Regional Judicial Service Commission - which will be
responsible for the appointment, transfer, dismissal and disciplinary
control of judicial officers - has to be by the Constitutional Council "in
consultation with the Chief Minister".
2.8.5 A country that found the Executive
Presidency too powerful so as to require its abolition is to be saddled
with eight or nine Chief Ministers who would wield even greater power
within their Regions. They will become petty dictators. Is this what the
country wants?
3 The Effect on the Economy of the Country
3.1 Sri Lanka : A Brief Profile
Sri Lanka is a small Island of 65,610 sq.
kilometres, much smaller than a State of the Indian Republic. Between the
farthest points, its length is 432 kin and breadth 224 km. It has a
population of I8 million, very unevenly distributed, with a thickly
populated wet South West and a sparsely populated dry North East (see Map
in Annexure 1 ) The Sinhalese people constitute 74 % while Tamils and
Moors respectively constitute 18 % and 7%, of this population. Buddhists
predominate comprising 70%.
3.1.2 Sri Lanka is well endowed with natural
resources such as land, mineral and aquatic and marine. As shown in
Annexure 2, agriculture is still the mainstay of the economy, contributing
20 % of the GDP and providing nearly 45 % of the total employment. While
plantation agriculture occupies the Central Hills, arable agriculture is
practised in the rest of the country. The latter is mainly rain-fed in the
South West and irrigated in the North East. There is still a concentration
of industries in the Western Province despite the attempt in the recent
past to establish garment factories in the rural areas and Free Trade
Zones outside the Western Province.
3.1.3 Despite its rich resource endowment, the
country still remains poor, with an annual per capita real income (GDP) of
Rs. 9,500 (in 1996). Nearly half of the population live below the poverty
line and have qualified for Jannsaviya or Samurdhi. Income and wealth are
distributed very inequitably not only between the regions or provinces but
also between different ethnic groups. Whether in regard to the country's
real income, or movable or immovable wealth, or trade, industry and
commerce, or the country's professions or total employment, or even
admission to professional courses at the universities, the Sinhala people
do not enjoy a share anywhere near their ethnic ratio.
3.1.4 It is in the above backdrop of the totality
of Sri Lanka, that the Sinhala Commission have examined the implications
of the proposed "devolution package" for the country as a whole, and for
the Sinhala people, as was evident from the representations led before it.
3.1.5 According to the Devolution Package, the
country will be broken up into 8 or 9 Regions, in addition to the very
small Capital Territory. These Regions will have independent-judicial and
police powers and autonomy to pursue their own policies (irrespective of
the policy of the Central Government) in respect of subjects and functions
devolved to them, and also the right to borrow from abroad subject to
"specified criteria and limitations," and to procure foreign assistance in
the form of grants and direct investment without any reference to the
Central Government. They also will be vested with the ownership of all
state lands with the right of "alienation or disposal". They also will
pursue their own finance and fiscal policies and will look to the Central
Government only for the grant to be allocated to them through the National
Finance Commission which shall, surprisingly, comprise 3 members
representing each of the three communities, Sinhala, Tamils and Muslim,
though there are 6 Sinhala for every 2 Tamil and 1 Muslim together in the
population of the country.
3.2 Allocation of Resources and National
Development
3.2.1 The resources of a country must be optimally
allocated for national development. Two conditions are essential for this
:1. Mobility of resources so that they can be most productively used; 2.
Uniformity of policy in respect of subjects and functions devolved to
regions, in accord with national policy (ie. policy of the Central
Government).
3.2.2 Both these are singularly lacking in the
Devolution Package.
3.3 Mobility of Resources
3.3.1 Sri Lanka is well endowed with human, land,
mineral and sea resources. Human resources must be able to move into areas
where land, mineral and sea resources are abundant for their most
productive use.
3.4 State Land
3.4.1 At present all state land is vested in the
Republic of Sri Lanka and all grants and dispositions of state land have
to be executed under the Public Seal of the Republic which is in the
custody of the President. The draft provisions (Package) makes a
fundamental change in this position by vesting state land within a region
in the respective Regions. All state land within a Region, therefore,
belongs exclusively to that region and the regional administration can do
whatever it wishes with such state land. This is made quite clear by
Article 24 (2) which states: The Regional administration shall be entitled
to exercise rights in or over such land, including land tenure, transfer
or alienation of land, land use, land settlement and land improvement in
accordance with applicable laws. Provided that priority in future land
settlement schemes shall be accorded first to persons of the district and
then to persons of the Region."
3.4.2 Not only all state land in a region but also
its sea coast and fisheries within territorial waters (up to 6 miles from
the coast) are vested with the respective region. Even though minerals and
mines is a Reserved Subject for the Centre (20), their exploitation would
be rendered difficult by having land and the sea coast vested in the
Regions.
3.4.3 The North and the East, the second and the
third largest provinces of Sri Lanka together comprise nearly 30o o
(28.78% to be exact) of the total land area of the country and more than
60% (nearly two thirds) of the sea coast. On the other hand, the North and
the East are the most sparsely populated. The density of the Northern
Province is 123, and that of the Eastern Province 46, per square kilometre,
together accounting for a density of 83. If the district of Jaffna which
is densely populated is excluded the density of these two provinces comes
down to a mere 36. This is quite in contrast to a density of 519 in the
Wet Zone which is mainly inhabited by the Sinhalese. The real density
becomes even higher when the uninhabitable hills, forests, watersheds etc.
are excluded. The gap becomes alarming when one compares the density of
the Wet Zone districts like Colombo with 3084, Gampaha with 1121, Kalutara
with 697, Kandy with 666, Matara with . 627, with the density of Northern
Province districts of Mullativu with 38, Vavuniya with 59, Mannar with 69
and Kilinochchi with 87. Moneragala is the only District outside the
Northern and Eastern Provinces with a density of less than 100 (with 65).
3.4.4 The provisions for vesting all state land in
the respective region will have the following consequences :
I. The Central Government will have no control or
rights over state land anywhere in the country outside the cities of
Colombo and Jayawardenepura, the Capital Territory.
II. A Regional Council will be able to alienate
state land to anyone it wants, even to foreigners, and the Government has
no powers to prevent this. For instance. state land in the North and the
East can be alienated to people of another country, because there is
nothing in the draft proposals to prohibit this.
III All state land in Sri Lanka will be fragmented
into 8 or 9 or 10 parts (depending on the number of Regions), each part
being the exclusive possession of the Region in which it is situated. One
could be certain that each Region will take steps to ensure that the land
within its Region is reserved exclusively for its own. The Government
cannot compel a Regional Administration to allot state land to any
landless person from outside the Region. This means that the problem of
land hunger in the case of Sri Lankan citizens in the Southern areas where
landlessness is very acute can never be solved. To add insult to injury,
the Kandyan peasants whose ancestral lands were grabbed and expropriated
by the British and who are now hemmed into tiny plots surrounded by large
estates, cannot be given any relief since no Region that has vacant land
will be prepared to accept them and the Central Government has no power to
intervene or mediate, and will look helpless.
IV The framers of these proposals make much of the
proviso to Article 24 (2) that "priority in future land settlement schemes
shall be accorded first to persons of the district and then to persons of
the Region", by claiming that it will strengthen fundamental rights.
However, they fail to realise that there is a violation of a more
important fundamental right of all citizens to equality of treatment.
3.4.5 The Wet Zone, it has been shown earlier, is
suffering from heavy population pressure as well as from severe land
hunger and acute unemployment particularly among the Sinhala people. This
suffering has been alleviated to some extent by people in the South being
able to move to the North or the East for agriculture either on state
Settlement Schemes or on their own, or for trade or business. It also has
been alleviated by fishermen in the South being able to move to the North
and the East for fishing during the South West Monsoon. The communal Tamil
political parties have objected to Settlement Schemes (erroneously called
"Colonisation Schemes") on the ground that Sinhala people have been
forcibly settled on the "Tamil homeland" "upsetting the ethnic balance".
The myth of traditional Tamil homeland has been amply exploded, and we
must dismiss straight away the contention that Sinhala people were
forcibly settled. Allotment of land on Settlement Schemes was open to the
people of the entire country as state land belong to the entire nation and
not to any one community. Several criteria for selection of allottees were
laid down such as unemployment, landlessness, ability to cultivate, family
size and distance. On an evaluation of these criteria, settlers were
selected. People in the South took the risk of going into malaria-infested
areas while people in the North did not do so, but preferred to migrate to
the South securing Government jobs and engaging in professions, and
conveniently forgetting that they were in turn changing the existing
ethnic ratio of the population there. According to one witness the number
of Tamil people who have migrated to the South exceeds the number of
Sinhala people who have been settled in the North and the East. In fact,
in fairness to Governments, it must be stressed that in settling people in
the Settlement Schemes preference was given to people from neighbouring
districts, other things remaining equal.
3.4.6 Notwithstanding these considerations, the
provision to vest all state land in the respective regions would negate
the existing factor mobility and deny free access to more than 90olo of
the population of this country, to nearly 30% of the land resources, and
more than 60% of the sea coast and territorial water fishing, and thereby
seriously impair our productive efficiency and productivity. Even though
the "rights relating to traditional migratory fishing" is excluded from
the jurisdiction of the Regional Administration, the fishermen of the
South would not be able to fish in the territorial waters of the North and
the East as they not are certain to be welcome there, and the Central
Government will not be able to enforce its will to make the North and the
East Regional Administration to do so.
3.4.7 Sinhala people have been engaged in
migratory fishing from ancient times and they have a basic right to do so
in the future. Today they have been displaced. It is the bounded duty of
any Government not to vest the land along with the coast and the
territorial waters in the proposed Regional Administration, but to ensure
that their "fishing rights are restored and they are rehabilitated and
resettled in their traditional fishing grounds in the North Eastern and
North Western seaboards".
3.4.8 If the Government fails to do this,
disastrous consequences may follow. As one witness puts it, "when the
(land) pressure becomes unbearable, when living becomes a problem, the
Sinhala people will spill over into the North and East. This will result
in border clashes/wars. Both sides will arm themselves to fight for land.
Clandestine arms can come in. The wars can go on for decades till one side
is either subdued or eliminated". Another witness who appeared before the
Commission at its Badulla public sittings lamented the plight that will be
of the landless of the Badulla district who are predominantly Sinhala, as
a result of vesting state land in the Regional Governments : "in the whole
of the Badulla district, there are only about l000 acres of unutilized
state land but every year as many as I 200 babies are born in the Badulla
District Hospital alone. Where could these increasing numbers go if they
cannot be accommodated in land abundant districts"? The fear was also
expressed by several witnesses that the Sinhala people in the South will,
not have access even to private land in the North because the Thesawalamai
Law could also be extended to the entire Northern Region, once it comes
under the suzerainty of the Northern Regional Administration.
In the above circumstances, how peace can be
restored with the implementation of the 'package' is beyond one's
comprehension.
3.4.9 Of the 5 land-abundant districts, 4 are in
the North as was shown earlier. By around the year 2025 the population of
Sri Lanka will be almost 50% more than now. This increase has to be
inevitably accommodated in the sparsely populated Dry Zone, in the North,
the East and the South East. Devolution, with all state land vested with
the Regional Administrations, will make it impossible to do so, and
impoverish further the landless Sinhala population in the Wet South. Even
in a country like the United States where the state governments enjoy
greater autonomy than under normal federal arrangements, state land in
Western States (where the bulk of the state lands of the United States
lies), is vested in the Federal Government and administered by the
Department of the Interior.
3.4.10 For all the reasons given above, we
strongly recommend that power over state land should remain with the
Central Government and not be devolved.
3.5 Vesting of state lands in the Regions, and
their adverse effect on agriculture, forestry, mining, environment, etc.
3.5.1 Agriculture: Agriculture is the mainstay of
our economy. The Sinhala people, in particular, have been tied to their
agricultural land economically as well as culturally from time immemorial.
The development of the Dry Zone is the kingpin of Sri Lanka's agricultural
development. The Dry Zone comprises 63% (nearly two third) of the land
area, but contains only 31 % (or one third) of the population, of the
country. It covers the entire Northern, Eastern and Uva provinces and the
districts of Puttalam and Hambantota of the North-Western and Southern
provinces respectively. Its density is less than 1 /4 of that of the Wet
Zone. The Dry Zone lacks the human and water resources which the Wet Zone
has in plenty. It has to depend also on Mahaweli water which flows from
another province, the Central.
3.5.2 The Dry Zone agriculture has to be developed
as one co-ordinated whole under one (national) policy. Dry Zone
development becomes problematical when state land is vested in the
respective provincial/regional administrations. It is also made worse by
allowing regional administrations to have their own individual policies of
agriculture, a devolved subject, and which policies may be even contrary
to national policy or national interest. It is, therefore, in the interest
of not only the Sinhala people in the South but also the people in the
North and the East, predominantly the Tamil people, not to have state land
vested in the respective regions but to have free movement ensured of
agricultural labour and water from the South to cultivate them.
3.5.3 It would be not only arable but also
plantation agriculture which would be threatened if the state land were
vested in the respective Regions which would not be required to conform to
a uniform/national agricultural policy. Plantation agriculture is the main
net foreign exchange earner of Sri Lanka, and has to be sustained. JEDB
and SPC estates would be treated as state land. There could be no
guarantee that such state plantation land would not be converted to other
purposes, for example, housing estates. Or, would not this vesting
adversely affect the current privatisation exercise of the Government and
be against national interest? Fear in this regard was expressed by a
witness who produced a news paper report from The lsland, Monday l4, July
1997 of a statement purported to have been made by Mr. S. Thondaman, a
Cabinet Minister, that "my ultimate aim is to create an autonomous local
administration with Tamil as the official language".
3.5.4 Function 40 of the Regional List. Land
Revenue may also conflict with national planning and national development.
The assessm
