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.