The 13th Amendment to the 1978 Constitution | Daily News

The 13th Amendment to the 1978 Constitution

The 13th Amendment to the Constitution was passed by Parliament on November 14, 1987, at a settlement of the ethnic problem and the then ongoing conflict. This Amendment introduced various conspicuous changes pertaining to the general administration of the country and in particular introduced the concept of Provincial Councils.

Under Article 154A of the Constitution, Provincial Councils were established in each Province specified in the 8th Schedule of the Constitution. As far as the judicial system is concerned one important change brought about by the 13th Amendment is the establishment of a separate High Court for each Province referred to as 'a High Court of the relevant Province'. (Article 154P (1). Even though the said High Courts of the Provinces were established in 1988, the provisions regarding the procedure to be followed by such High Court were not passed by Parliament until 1990. The High Court of the Provinces (Special Provisions) Act No.19 of 1990 certified by the Parliament on May 15, 1990, provided for this omission.

Article 154P of the 13th Amendment deals with the Provincial High Courts which reads as follows:

154P (1) There shall be a High Court for each Province with effect from the date on which this Chapter comes into force. Each such High Court shall be designated as the High Court of the relevant Province.

(2) The Chief Justice shall nominate, from among Judges of the High Court of Sri Lanka, such number of Judges as may be necessary to each such High Court. Every such Judge shall be transferable by the Chief Justice.

(3) Every such High Court shall -

(a) exercise according to law, the original criminal jurisdiction of the High Court of Sri Lanka in respect of offences committed within the Province;

(b) notwithstanding anything in Article 138 and subject to any law, exercise, appellate and revisionary jurisdiction in respect of convictions, sentences and orders entered or imposed by Magistrates Courts and Primary Courts within the Province;

(c) exercise such other jurisdiction and powers as Parliament may, bylaw, provide.

(4) Every such High Court shall have jurisdiction to issue according to law -

(a) orders in the nature of habeas corpus, in respect of persons illegally detained within the Province; and

(b) order in the nature of writs of certiorari prohibition, procedendo, mandamus and quo warranto against any person exercising within the Province, any power under

(i) any law, or

(ii) any statutes made by the Provincial Council established for that Province, in respect of any matter set out in the Provincial Council List.

(5) The Judicial Service Commission may delegate to such High Court, the power to inspect and report on, the administration of any Court of First Instance within the Province.

(6) Subject to the provisions of the Constitution and any law, any person aggrieved by a final order, judgment or sentence of any such Court, in the exercise of its jurisdiction under paragraphs (3) (b) or (3) (c) or (4) may appeal therefrom to the Court of Appeal in accordance with Article 138.

It is evident from the above that Article 154P (3) (b) of the 13th Amendment to the Constitution vests an appellate and revisionary jurisdiction in the High Court. To that extent the High Court of the Province has now become an appellate court whilst retaining its jurisdiction as a court of first instance.

Article 138 of the Constitution and its Amendment

Article 138 of the 1978 Constitution in its original form provided for jurisdiction of the Court of Appeal. However, Article 138 (I) of the Constitution as it stands now after the 13th Amendment to the Constitution (Section 3 of the 13th Amendment to the Constitution) is as follows:

"The Court of Appeal shall have and exercise subject to the provisions of the Constitution or any law, an appellate jurisdiction for the correction of all errors in fact or in law which shall be committed by the High Court, in the exercise of its appellate or original jurisdiction or by any Court of First Instance, tribunal or other institutions and sole and exclusive cognizance by way of appeal, revision and

restitutio in integrum, of all causes, suits, actions, prosecutions, matters and things of which such High Court, Court of First Instance, tribunal or other institution may have taken cognizance".

Article 138(I) of the Constitution as amended by the 13th Amendment makes a distinction between the appellate jurisdiction of the Court of Appeal for the correction of all errors in fact or in law which shall be committed by the High Court in the exercise of its appellate or original jurisdiction and the sole and exclusive cognizance, by way of appeal, revision and restitutio in integrum of all causes, suits, actions, prosecutions, matters and things of which any High Court, Court of First Instance, tribunal or other institution may have taken cognizance.

The proviso contained in Article 138(1) which is unchanged by the 13th Amendment reads as follows:

"Provided that no judgment, decree or order of any court shall be reversed or varied on account of any error, defect, irregularity which has not prejudiced the substantial rights of the parties or occasioned a failure of justice".

In terms of Article 138(2) of the Constitution which also remained unchanged by the 13th Amendment, the Court of Appeal shall also have and exercise all such powers and jurisdiction, appellate and original, as Parliament may by law vest or ordain.

Although Article 138 of the Constitution vests forum jurisdiction in the Court of Appeal to invoke the revisionary jurisdiction, such jurisdiction is subject to the provisions of the Constitution or any law. Thus Article 138 is subject to section 9 of the High Court of the Provinces (Special Provisions) Act No.19 of 1990 and section 31DD(1) of the Industrial Disputes Act as amended by Act No. 32 of 1990. The jurisdiction so vested in the Court of Appeal under Article 138 and in the High Court under Article 154P is not entrenched but subject to any law, specially to the provisions of the High Court of the Provinces (Special Provisions) Act of 1990 and section 31DD(1) of the Industrial Disputes Act as amended by Act No.32 of 1990.

Justice Mark Fernando in Weragama v Eksath Lanka Wathu Kamkaru Samithiya held:

‘The jurisdiction of the Court of Appeal is not an entrenched jurisdiction because Article 138 provides that it is subject to the provisions of any law. Hence it is always constitutionally permissible for the jurisdiction to be reduced or transferred by the ordinary law’.

The decision of the Justice Mark Fernando in the said case is equally applicable to Article 154P (3) (b) as the wording of Article 154P (3) (b) is somewhat similar to Article 138 of the Constitution. Article 154P (3) (b) also contained the words ‘subject to any law’.

Therefore the jurisdiction granted to the High Court of the Province is not entrenched and it is always constitutionally permissible for the jurisdiction to be reduced or transferred by the ordinary law as it has been done by section 9 of the High Court of the Provinces (Special Provisions) Act of 1990. 


 

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