Though I intended to write on
“identifying the Tamil problem” this week I have to postpone it to a later date
in order to discuss a very current topic that in any event is associated with
the Tamil problem. The government intends to amend two provisions of the
thirteenth amendment including the article on amending the provisions of the
thirteenth amendment or the ninth schedule. It is clear that the thirteenth
amendment or the ninth schedule that specifies the subjects allocated to the
provincial councils among other matters, have to be amended by making use of the
following articles 154 G (2) and 154 G (3) of the constitution of the
democratic socialist republic of Sri Lanka.
(2) No Bill for the amendment or repeal of the provisions of
this Chapter or the Ninth Schedule shall become law unless such Bill has been
referred by the President after its publication in the Gazette and before it is
placed to the Order paper of Parliament, to every Provincial Council for the
expression of its views thereon, within such period as may be specified in the
reference, and--
(a)
where every such Council agrees to the amendment or repeal, such Bill is passed
by a majority of the Members of Parliament present and voting ; or
(b) where one or more Councils do
not agree to the amendment or repeal such Bill is passed by the special
majority required by Article 82. ,
(3)
No Bill in respect of any matter set out in the Provincial Council List shall
become law unless such Bill has been referred by the President, after its
publication in the Gazette and before it is placed on the Order Paper of
Parliament, to every Provincial Council for the expression of its views thereon
within such period as may be specified in the reference, and-
(a) where every such Council agrees
to the passing of the Bill, such Bill is passed by a majority of the Members of
parliament present ant voting ; or
(b) where one or more Councils do
not agree to the passing of the Bill, such Bill is passed by the special
majority required by Article 82 :
The special majority required by
Article 82 is the so called two third majority in the Parliament.
As the provincial council of the
Northern Province is established but not constituted as of today in the sense
that no members have been elected to the council, in law, as I understand the
Northern Province council is not in agreement with any bill to amend the
thirteenth amendment or the ninth schedule. Thus it is 154 G (2) (b) and 154 G
(3) (b) that matters as far as amendment of the thirteenth amendment or the
ninth schedule is concerned.
However, the question is whether these
two articles 154 G (2) (b) and 154 G (3) (b) are law or constituent parts of
the constitution of the republic though they are included as articles 154 G (2)
(b) and 154 G (3) (b) of the constitution. Merely because the President or the
Speaker, as the case may be, has endorsed that a bill becomes law it does not
constitute law unless the procedure as stated in the constitution in passing
the bill has been followed. A bill becomes law after it has been passed
following the procedure for passing a bill, whether it is to amend the
constitution or not, and the President or the speaker endorses it. In the case
of a bill to amend the constitution the procedure has to be followed to the
letter as otherwise it would make room for the constitution to be tampered. In
the case of the above two articles it is clear that the procedure laid down in
the constitution has not been followed.
The original draft of the thirteenth
amendment bill with respect to 154 G (2) (b) and 154 G (3) (b) in addition to
what is stated above had the clause “(ii) approved by the people at a
referendum” in addition to “(i) passed by the special majority required by
article 82”. Thus according to the draft bill, any bill to amend the provisions
of the thirteenth amendment or the ninth schedule had to be passed by a two
third majority in the Parliament AND approved by the people at a referendum, if
at least one of the Provincial Councils was not in agreement with the bill. In
other words the people at a referendum could reverse the decision by any
Provincial Council not to amend the provisions of the thirteenth amendment,
even if the parliament had passed the bill with a two third majority.
When the draft bill for the thirteenth
amendment came before the Supreme Court four of the judges were of the opinion
that the bill could be passed without referring it to a referendum while four
other judges firmly said that the bill should be approved by the people at a
referendum. The ninth judge was of the opinion that 154 (G) (2) (b) and 154 G
(3) (b) of the bill to amend the constitution require approval by the people at
a referendum by virtue of the provisions
of article 83. Thus five judges of the Supreme Court were of the opinion that
154 G (2) (b) and 154 G (3) (b) had to be approved by the people at a
referendum and the government had to refer those two clauses to the people for
a decision or amend them and submit to the Supreme Court to find out whether
the amended bill was consistent with the constitution. The judges had not
specified the way in which the relevant clauses should be amended in order to
be consistent with the constitution, and the government was bound to refer the
clauses to the people or amend the two clauses and submit again to the Supreme
Court for a decision. The government did neither but amended the two relevant
clauses to drop the second condition, namely that the bill should be approved
at a referendum.
It is clear that the bill has been
passed in the Parliament without following the procedure laid down in the
constitution and at least the two “articles” 154 G (2) (b) and 154 G (3) (b)
are not law of the country , if not the entire thirteenth amendment. The irony
is that any bill to amend the thirteenth amendment or the ninth schedule has to
be passed according to 154 G (2) (b) or 154 G (3) (b) which is not law of the
republic nor part of the constitution though it has been endorsed erroneously.
12-16-2013
Nalin De Silva
