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Friday 1 September 2017

විසි පැන හෙවත් විස්සේ ප්‍රශ්නය


විසි පැන හෙවත් විස්සේ ප්‍රශ්නය



විසිවැනි සංශෝධනය පළාත් සභා දෙකක දී සම්මත වුණේ නැහැ. අදාළ සංශෝධනය ඒ පළාත් සභා දෙකට ආපසු යැවීමට ආණ්ඩුව තීරණය කරලා. විසිවැනි සංශෝධනයෙන් පළාත් සභා මැතිවරණ කල් දැමීමට කටයුතු කෙරෙනවා. එය ඊනියා ප්‍රජාතන්ත්‍රවාදයට විරුද්ධයි.  එහෙත් මෙහි එයට වඩා ප්‍රශ්නයක් තියෙනවා. දහතුන්වැනි ව්‍යවස්ථා සංශෝධනයට අනුව පළාත් සභාවලට ව්‍යවස්ථා සම්පාදනයේ දී මැදිහත් වෙන්න පුළුවන්. වත්මන් ව්‍යවස්ථාව ඒකීය නොවේ යැයි අප කියන්නේ එබැවිනුයි. අද විස්ස ගැන මතු වී ඇත්තේ මේ ඒකීය නොවන බව. පළාත් සභා එකක් හරි විස්සට විරුද්ධ වුවොත් පාර්ලිමේන්තුවට තුනෙන් දෙකකින් මිස එය සම්මත කරගන්න බැහැ. විස්ස ආපසු පළාත් සභා දෙකකට යවන්නේ එබැවිනුයි.




දහතුන සංශෝධනය කිරීමේ අදහසක් 2013 කාලයේ තිබුණා. එකල මා දි අයිලන්ඩ් පුවත්පතට ලියූ ලිපියක් ජූනි 12 හා 19 පළ වූවා. ඒ ලිපිය මෙහි නැවත පළ කරනවා. අද මෙන් ම කිසිවකු ඒ ලිපිය ගැන සතහකටවත් සැලකිල්ලක් දැක්වූයේ  නැහැ. මා නීතිඥයකුවත් දේශපාලන විචාරකයකුවත් නො වේ යැයි එකල ආණ්ඩුවේ බලවතුන් හිතන්න ඇති. දහතුන සංශෝධනයත් ආණ්ඩුවේ සිංහල බෞද්ධ විරෝධී දෙමළ ජාතිවාදීන් නිසා කෙරුණේ නැහැ.



විස්සට දහතුන නිසා ඇතිවන ප්‍රශ්න හෙට සාකච්ඡා කරමු. කාලය වෙබ් අඩවියේ දෙතුන් සීයක් ලිපිය කියවීම නිසා දේශපාලනයට කිසිම බලපෑමක් නොවන බව මා දන්නවා. ජනමාධ්‍ය මේ අදහස්වලට කිසිම ප්‍රචාරයක් ලබා දෙන්නේත් නැහැ.



දහතුනේ අදාළ ව්‍යවස්ථා නීත්‍යානුකූල ව සම්මත වෙලා නැහැ. දි අයිලන්ඩ් ලිපියේ මේ ගැනත් සාකච්ඡා වෙනවා. විස්ස සම්බන්ධයෙන් මැතිවරණ කල් දැමීමට වඩා ස්වෛරීභාවය පිළිබඳ ප්‍රශ්න මතුවන බව ඒකාබද්ධ විපක්‍ෂයට හා එහි උපදේශක පඬියන්ට අමතක වෙනවා.





මේ ලිපිිය ද තවත් ලිපි ද කාලය වෙබ් අඩවියෙන් කියවිය හැකි ය.






නලින් ද සිල්වා



2017 සැප්තැම්බර් 01







Amending the thirteenth amendment



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 and 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.



The Article 3 of the constitution states that the Sovereignty is in the people and is inalienable. The Article 4 states among other matters that the legislative power of the people shall be exercised by the Parliament and by the people at a referendum. It is the people who are the ultimate power and nowhere in the constitution or in the thirteenth amendment it says that the sovereignty of the people shall be exercised by the parliament , the provincial councils and the people at a referendum. However 154 G (2) (b) and 154 G (3) (b) has alienated the sovereignty of the people and even if the people, with whom the sovereignty is, want to amend the provisions of the thirteenth amendment they cannot do so if one of the provincial councils does not agree with the amendment even  if 154 G (2) (b) and 154 G (3) (b) are considered as law. It is not the so called two third majority in the Parliament, which is important but the approval at a referendum by the people, as the parliament is only an arm through which the people exercise their sovereignty and the JR Jaywardene government by removing the clause on the  requirement of a referendum has removed the opportunity for the people to participate in  the process of amending the thirteenth amendment. In any event the Supreme Court by a majority opinion had decided that 154 G (2) (b) and 154 G (3) (b) even with the clause on referring to the people is inconsistent with the constitution and had to be approved by the people at a referendum. As 154 G (2) (b) and 154 G (3) (b) are not law, as it is there is no provision in the thirteenth amendment to amend the thirteenth amendment when at least one of the provincial councils does not agree with the bill to make such amendment, and in order to find a solution for this impasse the government has no alternative but to go back to the people for a decision on the thirteenth amendment. If all the provincial councils are in agreement with a bill to amend the provisions of the thirteenth amendment or the ninth schedule the government can invoke 154 G (2) (a) or 154 G (3) (a) provided that is the law of the country. 







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.