Provincial autonomy within a Unitary framework | Daily News


Legislative Capacity of Provincial Councils:

Provincial autonomy within a Unitary framework

Part III

Continued from yesterday

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 has 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, be they be called States as in Australia and the United States of America or Provinces 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 Parliament by Article 154Q(a) were rendered ineffective by another Provision of the same Constitution. Article 154M of the 13th Amendment also empowers the 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 legislations which may eventually result in the Supreme Court handing down a restrictive interpretation in keeping with the constitutional intent of the 13th Amendment.

(Prof. Sarath Mathilal de Silva is a regular columnist discussing legal matters that he thinks are useful to readers)



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