We continue with
amending the thirteenth amendment this week as it appears that some well
meaning people have misunderstood the article published last Wednesday. My
intention was to draw the attention of the public to the Articles 154 G (2) (b)
and 154 G (3) (b) of the constitutions, which is not law of the country. There
were two amendments to the thirteenth amendment before the cabinet that met
last week. One was to amend the Article 154 A (3) on the merger of two or more
provincial councils. This amendment was to be affected under the Article 82 on
the amendment of the constitution. The second amendment before the cabinet was
to amend the Articles 154 G (2) and 154 G (3) that deal with amendments to the
thirteenth amendment and the ninth schedule. This amendment was to be affected
under the Article 154 G (2) itself and my intention was to show that it was not
possible to do so as 154 G (2) is not the law of the country though it appears
in the constitution and to open a discussion on the Articles 154 G (2) and 154
G (3). Anybody familiar with the constitution would have known that any
amendment to the constitution could be affected under the Article 82 that is law
of the country.
I give below in point form why I
do not consider 154 G (2) (b) and 154 G (3) (b) to be the law of the country.
(i)
Article
80 (1) states a Bill passed by
Parliament shall become law when the certificate of the Speaker is
endorsed, subject to the provisions of paragraph 80 (2). What has to be decided first is whether the
13 A Bill was passed by the Parliament according to 80 (2).
(ii)
The Article 80 (2) states among other matters that
where the Supreme Court has determined
that a Bill or any provision thereof requires the approval of the People
at a Referendum or where any Bill is submitted to the People by Referendum
under paragraph (2) of Article 85, such Bill or such provision shall become law upon being approved by the People at a
Referendum in accordance with paragraph (3) of Article 85 only when the
President certifies that the Bill or provision thereof has been so approved.
The President shall endorse on every Bill so approved a certificate in the
following form : -
“This Bill/provision has been duly approved by the
People at a Referendum.”
(iii)
The
Supreme Court had decided by majority opinion that 154 G (2) (b) and 154 G (3)
(b) of the 13 A Bill have to be approved by the people at a referendum.
However, no such referendum was held and the relevant clauses were amended
without referring back to the Supreme Court, which is in contradiction with
Article 122 (4).
(iv)
Article
122 (4) states: Where any Bill, or the provision
of any Bill, has been determined, or is deemed to have been determined to be inconsistent
with the Constitution, such Bill or such provision shall not be passed except in the manner stated in the determination
of the Supreme Court: Provided that it shall be lawful for such Bill to
be passed after, such amendment as would make the Bill cease to be inconsistent
with the Constitution.
(v)
It
is clear that a Bill can be passed after such amendment as would make the Bill
consistent with the constitution. However, the amendment by the JRJ government
of 154 G (2) (b) and 154 G (3) (b) was not submitted to the Supreme Court to
determine whether it was consistent with the constitution. It has to be stated
that the JRJ government did not drop 154 G (2) and 154 G (3) but only amended
it without referring it to the Supreme Court. The Parliament cannot decide
whether an amendment is consistent with the constitution.
(vi)
The
Parliament passed the amended 13 A Bill, without referring back to the Supreme
Court and was endorsed by the Speaker without the endorsement by the
President that it was approved by the
people at a referendum as per Article 80 (2).
(vii)
Thus
154 G (2) (b) and 154 G (3) (b) are not law of the country and they cannot be
invoked to amend the 13 A or the ninth schedule.
(viii)
Now Article 80 (3) states: Where a Bill becomes law upon the certificate of the
President or the Speaker, as the case may be, being endorsed thereon, no court
or tribunal shall inquire into, pronounce upon or in any manner call in
question the validity of such Act on any ground whatsoever. One could argue
that this implies that 13 A or any of its provisions cannot be challenged in a
court of law.
(ix)
However this is applicable to only those Bills that
have become law after following the correct procedure as given in Article 80
(1) and (2). Our argument is that 154 G (2) (b) and 154 G (3) (b) have not
become law in spite of the endorsement by the Speaker as the procedure as laid
down in 80 (1) and (2) has not been followed. A Bill becomes law when the certificate of the Speaker/President
is endorsed after it has been passed by Parliament subject to the provisions of
80 (2). Clearly 154 G (2) (b) and 154 G (3) (b) have not followed 80 (1) and
(2).
(x)
Article
124 states: Save as otherwise provided in Articles 120, 121 and
122, no court or tribunal created and established for the administration of
justice, or other institution, person or body of persons shall in relation to
any Bill, have power or jurisdiction to inquire into, or pronounce upon, the
constitutionality of such Bill or its due compliance with the legislative
process, on any ground whatsoever.
(xi)
The Article 124 refers to Bills presented to the
Parliament but 13 A as of today is not
such a Bill and is not applicable in this case.
(xii)
In any event the constitution can be amended only
through Article 82. Article 82 (6) specifically states: No provision in any law
shall, or shall be deemed to, amend, repeal or replace the Constitution or any
provision thereof, or be so interpreted or construed, unless enacted in
accordance with the requirements of the preceding provisions of this Article.
Thus 154 G (2)
(b) and 154 G (3) (b) contradict the Article 82 and that is the very reason
that these particular clauses in the 13 A Bill should have been referred to the
People, as per the opinion of the Supreme Court. There is a contradiction in the constitution
if the Articles154 G (2) (b) and 154 G (3) (b) are construed to be law of the
country as in that case Article 82 states something else. If the Articles 154 G
(2) (b) and 154 G (3) (b) are not law of the country then no bill can be submitted to the Parliament to amend
the thirteenth amendment or the ninth schedule under those two Articles. I am
not entirely unhappy with the decision of the cabinet not to submit the Bill to
amend 154 (G) (2) and 154 (G) (3) under those two articles albeit for different
reasons as if it was done then some credibility would have been given to the
two articles concerned. It is clear that the only way out is to scrap the
articles 154 (G) (2) (b) and 154 G (3) (b) from the constitution using the
Article 82 as we would not like to live with contradictions in the
constitution. It has to be emphasized that the Articles 154 G (2) (b) and 154 G
(3) (b) take away from the Parliament its sole authority to amend any provision
of the constitution as provincial councils have to be consulted to amend the
thirteenth amendment or the ninth schedule which are parts of the constitution, under those two
articles.
We do not have to
listen to India on the amendment of the thirteenth amendment not only because
it goes against our sovereignty but since there is no Indo Lanka Agreement.
This agreement is now defunct. It was India that did not honour the Agreement
by failing to unarm the LTTE and defeat it. No peace was kept by the so called
Indian Peace Keeping Force, and it only harassed the Sri Lankans whether they
were Sinhalas, Tamils or Muslims. We deplore the TNA on going to India to solve
our problems and question the legal or moral right of India to dictate terms to
us having abrogated the indo Lanka agreement.
Nalin De Silva
19-06-2013
