(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.
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.
සිංහල ලිත් ඉලක්කම් 