The provisions place several effective obstacles in the passage of a statute before it comes into force. Unlike the plenary power of Parliament in relation to a Bill which requires no executive assent, a statute requires the assent of the Governor who is the Chief executive of the Province. He is given an opportunity to make proposals.
On the other hand, the Council is obliged to consider such proposal and if necessary to give effect to them. It is apparent that the Constitution intended the Governor to exercise some degree of control over the Provincial Council’s power to make statutes. At the same time, it ensured that a statute will not be unduly delayed by stipulating a time limit of one month within which it may be referred to the Supreme Court. (Article 154H(4)).
The determination of the Supreme Court is restricted to the constitutional validity of the statute. The above procedure lends support to the proposition that Article 154G is concerned with the devolution of legislative power and not distribution of it. In this sense, the Governor whose appointment is referable to the executive power of the people (Article 4(b) read with Article 154B(2)), is permitted to play a legitimate role in the making of a statute by a Provincial Council, thereby strengthening the argument that this Article demonstrates a classic example of devolution of legislative power.
The jurisdiction of the Supreme Court in relation to a statute guarantees safe passage towards statute framed in accordance with the Constitution. It is open to a Governor to temporarily obstruct a statute for various reasons, yet a permanent obstacle may be placed only if the statute is inconsistent with the Constitution. When one considers the entirety of the 13th Amendment it is manifest that the intension of its framers is to ensure that a statute must as far as practicable be acceptable to the national government and the Provincial Council and that if it is to be prevented, it should only be for reasons of constitutional conflict.
The Provincial Councils Act provide for a special procedure in respect of statutes relating to financial matters (Section 24), even though they relate to the matters specified in the Provincial Council List. It provides for the recommendation of the Governor before the statute is introduced into or moved in a Provincial Council. Although the conditions specified in section 24 appear to be in conflict with Art.154G (1) of the Constitution, in view of Art. 80(3), it is now too late in the day to question its constitutional validity.
Devolution of legislative power
It is a formidable task on the part of the Provincial council to legislate a mass of statutes relating to several subjects in its List I within a short period. However, the provisions in the 13th Amendment (Article 154G (8) which permits all pre-1987 existing laws of Parliament on matters enumerated in the Provincial Council List to be operated by the Provincial Councils remained with full force and effect unless Provincial Councils legislating in derogation of the pre-1987 legislation and the provisions of the Provincial Councils (Consequential Provisions) Act have been extremely useful as the Provincial Administrations continued to function with regard to the subject matters which are listed in the Provincial Council List.
A similar provision found in Article 154G(9) retains with full force and effect all pre- 1987 legislation falling within items in List III, the Concurrent List. This too as mentioned earlier for List I provisions, all pre – 1987 legislations remain with full force and effect, until the Provinces decide to legislate while stating in the Long Title ‘as being inconsistent’ with particular pre-1987 Law. At that point, here too as mentioned earlier with reference to List I matters, the pre-1987 Law remains in abeyance and suspended until the particular provincial law is someday repealed. Upon its repeal, similar to the repeal of a List I law, the relevant pre-1987 law springs back into effect, without the need for its re-enactment by Parliament.
In this regard the Judiciary has been favourable in holding that laws passed by Parliament on the subject matters of the Provincial Council List will operate in the Provinces until the Provincial Councils enact their statutes on those matters. In Alawwa and Others v Katugampala MPCS and Another; (also Wijewardana v Director of Local Government and Others), the Supreme Court overturned a decision of the Court of Appeal which declined to recognise the operation of the Parliamentary Act passed before the enactment of the 13th Amendment in a Province.
This related to the appointment of Members to the Co-operative Employees Commission by the relevant Minister in a Provincial Administration and the Commission ordered relief to a victimised officer. When the Respondent Multi- Purpose Co-operative Society challenged the order of the Commission, the Court of Appeal held that there was no institution known as the Co-operative Employees Commission established by the Province under the statute and that the Provincial Minister could not have appointed members to a non-existing Commission.
The Supreme Court recognising the relevance of Article 154G(8) held that it unequivocally serves to keep alive all the laws in force on matters relating to the Provincial Council List when a Provincial Council List established, subject to the specified limitations. It went on to hold that the appointment of the members of the Commission under the provisions of the Provincial Councils (Consequential provisions) Act is valid and lawful. (Cf. Ratnayake v De Silva and Somaratne v Minister of Agriculture, Law and Forestry and others.
The above line of judicial reasoning was approved by the Supreme Court in the case of Maduma Banda v Assistant Commissioner of Agrarian Services and Others, when the Court held that the word Agrarian in item 9 of the Provincial Council List related to landed property and that such property could no doubt attract paddy lands and tenant cultivators of such land and hence the impugned order would be covered by the item 9 in the Provincial Council List.
By virtue of Article 154G (6), if any provision of any statute made by the Provincial Council is inconsistent with any law made in accordance with provisions of Article 154G, provisions of such law shall prevail and the provisions of such statute shall, to the extent of such inconsistency, be void. The law contemplated in terms of this Article is:
(a) law made in respect of any matter in the Provincial Council List in accordance with the procedure under Article 154G (3) and
(b) law made in respect of any matter in the Concurrent List.
The role of Parliament
Parliament’s power to legislate falls within Article 154G (3) (The Provincial Council List) and Article 154G (9) (a) (the Concurrent List). The contents of those Articles were succinctly stated by the Supreme Court in its advice to the Speaker that the proposed Land Ownership Bill violated the 13th Amendment in a fundamental way and therefore, needed to be legislated in a way laid down under Article 83 of the Constitution.
All subjects and functions not specified in List I or List III are brought within the Reserved List. The residuary power is vested in the National Government. A Provincial Council may by a resolution decide not to exercise its statute making powers. Upon the acceptance of this resolution the Parliament is, thereafter, empowered to make laws applicable to that Province (Article 154 (5)).
It is also noted here that to underscore the unitary character of the State, Article 154G (10) declares that nothing in Article 154G shall be read or construed as derogating from the powers conferred on Parliament by the Constitution to make laws, in accordance with the provisions of the Constitution, (inclusive of the Chapter on Provincial Council), with respect to any matter, for the whole of Sri Lanka or any part thereof.
The power given to Parliament to legislate in respect of any matter set out in the Provincial Council List may be summarised as follows:
(i) The President after its publication in the gazette and before it is placed on the Order Paper may refer the Bill to every Provincial Council,
(ii) Where every such Council agrees to the passing of the Bill it is passed by a simple majority (Article 154G(3)(a).
(iii) Where one or more Councils do not agree it is passed by a two- third majority in which event such law will be applicable to all the Provincial Councils (Article 154G(3)(b).
(iv) In the event of an inconsistency between laws passed as above and a statute, the provisions of the law will prevail (Article 154G(3)(6).
(v) Where on such reference one or more Provincial Council agree to the passing of the Bill, it shall become law applicable only to those Provinces, (Article 154G(3)(b) and
(vi) The Parliament may make laws at the request of the Provincial council. (Article 154G (4).
Where Parliament wishes to make a law in respect of any matter set out in the Provincial Council list for implementing any treaty, agreement or Convention with any other country or countries or any decisions made at an international conference, association or other body, the procedure set out earlier need not be followed and as such a Bill need not be referred to Provincial Councils (Article 154G (11)).
Moreover, a Provincial Council may by resolution request Parliament to make law on any matter set out in the Provincial Council List. Parliament may make law on that matter applicable only to the Provinces that have so requested by a simple majority (Article 154G(4)).
In terms of Article 154S, a Provincial Council may, by resolution, decide not to exercise its statute making power under Article 154G with respect of any matter on the Provincial Council List or Concurrent List. Where such resolution is passed and the terms of such resolution have been accepted by Parliament by resolution, the legislative powers of such provincial Council shall be deemed not to extend to the matters specified in the resolution.
Parliament may then make laws with respect to that matter applicable to the Province concerned without following the procedure laid down in Article 154G. Although not specifically stated, a Provincial Council should be able to revoke such a resolution at any time if the resolution was not time bound.
The powers that the Constitution had given to Provincial Council to legislate are given by Parliament and could be taken away whenever Parliament decides to do so and could for that purpose satisfy Article 82(5) of the Constitution. In specific areas, Parliament has reserved to itself a power to legislate such as Article 154Q and also under Article 76(3). This is a hallmark of a body subordinate to Parliament (Wijewardene v Director of Local Government and Others).
Article 154Q provides five grounds upon which Parliament might legislate for the Provinces. Additionally, Parliament might legislate in all subjects and functions in the guise of National Policy under List II. This aspect sharply distinguishes the 13th Amendment from a Federal Constitution. In a Federal Constitution, all its constituent units, they be called States as in Australia and the United States of America or Provinces as in Canada, are in constitutional law regarded as Co-ordinates and not as sub- ordinates. One attempt by Parliament to encroach into the legislative scheme of the Provinces came before the Supreme Court in its determination of the Local Authorities (Special Provisions) Bill, Parliament proposed a Bill to delay the elections to Provincial Councils, to call for fresh nominations and cancel nominations given in response to a previous Call for nominations to the same Provincial Councils. Under Article 154Q (a), Parliament was empowered by law to provide for: “the election of members of Provincial Councils and the qualifications for membership of such Councils”.
There was, therefore, a power clearly posited in Parliament to propose the Bill under review. The Supreme Court, however, found that the contents of the proposed Bill conflicted with Article 12(1), the equality provisions of the Constitution. This decision is important in that the power given to Parliament by one constitutional provision were set aside by another provision of the Constitution.
A power given to Parliament by Article 154Q(a) were rendered ineffective by another Provision of the same Constitution. Article 154M of the 13th Amendment also empowers Parliament to confer power on the President to make statutes or to delegate such power to any other authority. This Article contemplates a positive deviation with regard to legislative and statute making power of the Provincial Council.
Constitutional Amendments
According to Article 154G(2), a Bill for such an amendment must be 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. If every Council agrees to the Amendment or repeal, the Bill may be passed in Parliament by a simple majority. If one or more Councils do not agree, a two – thirds majority is required.
The 17th Amendment to the Constitution Bill sought to amend Article 154R to say that the Finance Commission shall be appointed by the President on the recommendation of the Constitutional Council. Appendix I (Law and Order) to the Provincial Council List was also to be amended. The Bill was referred to the Supreme Court as an urgent Bill. It had not been referred to the Provincial Councils. Whether the Bill should have been so referred was not raised before the Court.
The Court did not refer to the procedural requirement, but stated that the two clauses were consequential amendments. In Ghany v Dayananda Dissanayake, 5 – member Bench of the Supreme Court noted that the Bill had not been referred to the Provincial Councils, but expressed no opinion as to whether or not the Provisions of the 17th Amendment have become law in terms of Article 154G (2).
There can be no question that in view of the checks and balances in the Constitution of Sri Lanka, the devolution of legislative power in terms thereof falls far short of federalism. But in this area of devolution, it is the Provincial Council that is expected to take the first step by making statues having regard to its capacity and competence.
On the other hand, the national government must be cautious in enacting national policy legislation which may eventually result in the Supreme Court handing down a restrictive interpretation in keeping with the constitutional intent of the 13th Amendment.
