Ramifications of 13th Amendment and its potential for change
by Dr. Lakshman Marasinghe
The Devolutionary StructuresDevolution of power by necessity engages a structural hierarchy of constitutionally determined recipients of the devolved powers. Under the Thirteenth Amendment such recipients are the Provincial Councils that fall within a structural hierarchy of centres of constitutional governance. In future arrangements other recipients of devolved powers may be constitutionally ordained such as the Districts, Municipalities and other local bodies right down to the level of the “Grama” or the Village. At the present time under List I of the Thirteenth Amendment in paragraph 4:3 the Municipalities, Urban Councils and Pradeshiya Sabhas fall under the Provincial List. However, the Provincial Councils under the Amendment have the constitutional ability to’’ confer additional powers on local authorities but not to take them away.” This restricted power of the Provincial Councils is justified by the fact that, the three local bodies mentioned under that paragraph had been established under separate laws which precedes the 13th Amendment. Those local bodies were originally designed to help bring the policies of a centralized Administration to the door steps of the nation.
It is important to notice that while the power to restructure the local government bodies is left to the centre — The Parliament — the Provinces are left free only to expand their powers, and not to restrict or in any way diminish their powers. The power to confer additional powers is a choice left to each Provincial Council depending on the needs of the polity over which it presides.
The Parliament
The Thirteenth Amendment leaves several areas of constitutional governance for Parliament to legislate with regard to Provincial Administration. One such area is seen in Article 154 of the Constitution. Under that Article Parliament was provided with four significant areas for Legislation in the affairs of the Provinces.
These are:154 Q
(a): “the election of members of Provincial Councils and the qualifications for membership for such councils.
(b): the Procedures for transaction of business by every such council.
(c): the salaries and allowances of members of Provincial Councils; and
(d): any other matter necessary for the purpose of giving effect to the principles of provisions of this Chapter, and for any matters connected with, or incidental to the provisions of this Chapter.”
The extent to which Parliament may legislate for the Provincial Councils in areas of significant importance for them is seen from a reading of those four sub-Articles. In support of these provisions Parliament has enacted two principal Enactments. These are the Provincial Councils Act No. 42 of 1987 and the Provincial Councils Elections Act No: 2 of 1988.
Additionally, in List II (the Reserved List ) Parliament is possessed with a power to lay down “National Policy on all subjects and functions”. The location of that power at the head of List II does not, in my view, limit Parliament to, it exercising those powers to subjects within those listed in List II, but, in my view, that power extends to all subjects listed in both Lists I and II as well. A power with such a wide constitutional sweep makes Parliament in possession of a sufficiently wide to have an effective control and closely regulate the activities of Provincial Councils. This represents an aspect of the abundance of executive power which Parliament may exercise under the 13th Amendment.
The Governor
The genesis of the position of the Governor within the organization of the Provincial Councils, may be traced to the decolonization process and the introduction of the “Westminster Model” to the Provincial Councils. In the hierarchical structures introduced by the Colonial powers, for governance of distant places from Whitehall, in London, the repositor5 of Sovereignty of the Colony of Ceylon was founded in the two British Houses of Parliament together with the constitutional concept of The Queen or King — in Parliament)”. All three bodies as a troika represented the Sovereignty of the United Kingdom and its Colonies, Dependencies and its Protectorates. This distant source of Sovereignty was locally represented by the British Governor appointed and mandated to govern by that distant Sovereign rooted in the United Kingdom. The Colonial dependency was kept firmly rooted in Britain by the application of the Colonial Laws Validity Act of 1865 — a UK — Statute, where by any Law passed in any Colonial legislature in any of the above mentioned subject territories may be declared invalid, and of no force and effect by the Colonial Secretary, with the concurrence of the UK Parliament, expressed through an Order-in-Council. By such means any law passed in a Colonial Legislature may be annulled at will by the U.K. Parliament. The Colonial dependency was thus maintained through this constitutional umbilical cord tied to the UK Parliament. A similar dependency appears to have been established between the Provincial Councils and Parliament through the Governor.
In such an arrangement The Governor of the Colony represented the Sovereign and acted in accordance with the advice and consent of the UK Parliament. Such advice and consent was communicated to the Governor in the Colony, by the Colonial Secretary in Whitehall (London). That is what is conceived as the Westminster model of Government conducted through a structural hierarchy of centers of Colonial Governance.
At independence the Colonial ‘Governor’s position was transformed into one of a “Governor —General”, when the former Colony became a Dominion (See Soulbury Constitution (1948-1972). Subsequently, the Colonial Governor’s position was transformed into a non-Executive President (1972 Constitution) when the territory became a Republic. The position of the “Governor General” was replaced by the non-executive President.
The Westminster model structure became defunct once the former Colony adopted an Executive Presidency (1978).
In each of these constitutional structures the “Governor General” (under The Soulbury Constitution) and the non-Executive President (under the 1972 Constitution), acted in accordance with the advice and consent of the Cabinet of Ministers. This is an important aspect of the Westminster model.
The 13th Amendment introduced the Westminster Model form of government into the Provincial Councils. The Governor of the Provincial Councils took the position of the “Governor General” whose Law making power for the Province was made subject to the advice of the Provincial Cabinet of Ministers. The reference to the Cabinet of Ministers with regard to the Governor of a Province, is the Cabinet of Ministers of the Provincial Councils. This fact is seen when Article 154C is read in conjunction with Article 154 F (1) of the 13th Amendment. Article 154 F (1) reads:
There shall be a Board of Ministers with the Chief Minister --- and not more than four other Ministers to aid and advise (sic.) the Governor of a Province in the exercise of his fhnctions.
Thus having stated the task set out for the Board of Ministers, the Article proceeds to mention that:
The Governor shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.
In the UK, Orders-in-Council are laid before Parliament in special folios for inspection by the Members who are free to question the Government regarding their contents and may if thought necessary with a power to move for a debate and a vote upon it. By tradition all Independence - granting Statutes of the former Colonies were adopted as Orders-in-Council, to avoid acrimonious debates in Parliament on the eve of granting Sovereignty. Notably, the Ceylon Independence Bill was passed in the form of an Order- in-Council.
UK, Orders-in-Council are laid before Parliament in special folios for inspection by the Members who are free to question the Government regarding their contents and may if thought necessary with a power to move for a debate and a vote upon it. By tradition all Independence - granting Statutes of the former Colonies were adopted as Orders-in-Council, to avoid acrimonious debates in Parliament on the eve of granting Sovereignty. Notably, the Ceylon Independence Bill was passed in the form of an Order- in-Council.As there are no clear directions given in the 13th Amendment as to the most propitious method that a Governor of a province may utilize when making laws under this third category mentioned for provincial law making, in Article 1 54C. It is therefore necessary for the Provincial Governor to be somewhat eclectic. He may adopt which ever scheme he may consider the most appropriate.
Role and power of the Governor
In summary, the Provincial Governor has a wide law making power under Article l54C. Aside from those particularized powers, in all matters which are functional in nature, Article 154F (1) requires that”---the Governor of a Province --- shall in the exercise of his functions, act in accordance with such advice.” It is important that the administration of a Province in the hands of the Provincial Councilors, who comprise the elected body responsible to an electorate. As such the functioning of the Province is in their hands. But the Governor has a superintendent role to play in order to ensure that the functions relegated to the Provincial Councils are properly and efficiently carried out.
In this role the Governor has a power under Article 154 L to Report to the President that the “Administration of the Province cannot be carried on in accordance with the provisions of the Constitution.” Upon the receipt of such a Report, the President may:
Under Article 154 L (1) (a) “assume to himself all or any of the functions of the administration of the Province.” And under Article 154 L (1) (b) “declare that the powers of the Provincial Council shall be exercisable by, or under the authority of Parliament”.
The concomitant supportive procedures to ensure that these powers of the President with regard to an errant Provincial Council are properly applied and executed have been set out in the rest of the provisions contained in Article 154 L. The power which the Governor possesses to make a Report to the President concerning an errant Provincial Council is a wide and at the same time an effective one. It is effective to protect the interest of the polity within a Provincial Council whose interests which the Councilors have been elected to represent and protect. The President may act on the Report through Proclamations and whereby such a Proclamation issued under Article 154L (1) orders that” the Powers of the Provincial Council shall be exercisable by, or under the authority, of Parliament”, Parliament may confer upon the President the power originally had by the errant Provincial Council to enact laws for that Council. Article l54 M (1)(a) further authorizes the President, subject to certain limitations, to vest upon “ any other authority”, the powers so allowed by Parliament to him / her.
The power which the President possesses to vest the powers of the errant Provincial Council upon “another authority” is sufficiently wide to permit a constitutional validation of such a vesting upon any Political, Social, Religious or any group of persons forming a political or other syndicate, such as any NGO or INGO.
The Governor has a power from time to time to prorogue a Provincial Council (Article 154 B (8) (a) and (b) and dissolve a Provincial Council (Article 154 B (8) and (c). In both these decisions the Governor of a Province is required to act in accordance with the advice of the Chief Minister. The limitation is that unless the particular Cabinet of Ministers which the particular Chief Minister heads has the support of a Majority of the members of the Provincial Council, the Governor is not required to accept the advice tendered by such a Chief Minister. However, whatever Advise that the Chief Minster gives to the Governor or any communication between the Governor and the Ministers of any Provincial Council, shall not be inquired into by any Court of Law, under Article 154F (3). Aside from the Executive power which the President holds to dismiss the Governor under Article 154 B (2) the Provincial Council may additionally “present an address to the President advising the removal of the Governor”- (Article 154 B (4).
Reflections
Devolution of Power and Division of Power are two cardinal modalities that modern constitutionalism has found to diffuse the concentration of Power from a single Body. Devolution of Power requires the structuralizing of centres of power upon a hierarchical basis. The Provincial Councils were devised to perform that task upon a Devolution of Power under the 13 Amendment. In this scheme of things there is the Executive President at the apex of the Hierarchy. Parliament provides the legitimizing forum for the powers that have been chosen for devolution and scheme chosen for the devolution. The three Lists in the 9th Schedule to the 13th Amendment provide that scheme.
The Governor of the Province represents the Executive power and therefore sits between the Executive President and Parliament. The Provincial Council functions as a Grand delivery point, which delivers the devolved powers in a functional form. It is here that Article l54F (1) to which reference has previously been made becomes important where and admonition is addressed to the Governor, that he “shall in the exercise of his functions, act in accordance with such advice” as given by the Board of Provincial Ministers.
The structure provided in the 13th Amendment is an adoption of the Westminster model. The nature of the Westminster model is such that the ‘Governor’ and later the ‘Governor — General’ was devoid of plenary powers and was always possessed with devolved powers which are subordinated to some other source of power. The ‘Colonial Governor’ was the recipient of powers devolved from the Colonial Secretary in Whitehall, who in turn received his powers from Parliament (House of Commons , the House of Lords and the Queen or King in Parliament) acting as the repository of the Sovereignty of the United Kingdom. Ultimately, and in reality, the ‘Colonial Governor’ received Instructions which have been approved by the Cabinet, conveyed to him from the Colonial Secretary. In the Post- Colonial era the ‘Governor-General’ received instructions from the Dominion Cabinet filtered through the local legislature according to which the ‘Governor General’ acts. Therefore it must be pointed out that the Governors never were imbued with any plenary powers and their functions were always one of superintending the execution of functions allowed to them by the constitution or some basic law such as constitutional conventions as in the UK. Similarly, the Provincial Governors have no plenary powers and are subject to the Instructions issued by the Provincial Cabinet of Ministers and from the President issued directly or through Parliament and conveyed to the Governor from the relevant ‘Line Ministry’. The exception is that they have been given law making powers under Article 1 54C. But in all matters other than what is mentioned there, all their functions are subject to the advice that the Governor receives from the Board of Ministers of the Provincial Council. This has clearly been stated in Article 154F (1).
The 13th Amendment has potential for change. It could perform an accordion like movement of both expansion and constriction. This movement is left, first, in the hands of the Governor and that is to be found in his Law making powers prescribed in Article 1 54C of the Constitution. Parliament too could play that accordion under Article 154Q of the constitution. The Provincial Councils however possess no such power. They are hemmed in by what is prescribed in Lists I.
[Dr. Lakshman Marasinghe is Emeritus Professor of Law,University of Windsor, Canada.]
2 Comments
I strongly agree to the devolution of power to Sri lankan Tamil people. This te only solution to solve and create properous country.
"I hear that the Tigers are losing ground; is there a chance for peace in Sri Lanka?" was a question put to me by a German citizen. I said to him "the Tigers may be losing battles but as to who will win the war is yet to be seen because the Tigers are fighting a long drawn out guerella war"
I further explained that the Sri Lankan state spends about Rs 50,000,000 or US 500,000 to kill every Tiger combatant. This money is, if not for the war, would have normally been used for creating jobs and development in the South and not in the North East.
Therefore, the Tigers have successfully dragged the state into the trap of twin disaster, namely, economic disaster and no development for the South.
On the other hand, I explained to him that politically, the Tamil cause for legitimate rights, self governance, independence and prevention of present Tamil genocide have been successfully explained well than ever before, by Tamil diaspora internationally.
The people in and governments of the USA, India, Mauritius, Europe, Africa, Scandanavian countries and Russia now understand the need for self governance for Tamils from the genocidal state of Sri Lanka.
Therefore, If the purpose of the war by the state was to crush separatism of North East, the state has lost.
My final answer to his question was that peace in Sri Lanka is not dependent on the outcome of the present war but dependent on the speedier emergence of independent Tamil Eelam.