January 28, 2020
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    Provincial autonomy within a Unitary framework

    January 08, 2020

    A significant dictum on the effect of National Policy duly formulated by the Central Government on the Provincial Council was made by the Supreme Court in the case of Kamalawathi and Others v the Provincial Public Service Commission, North Western Province and Others. The case related to the alleged violation of Article 12(1) – the right to equality – of the Constitution in that the petitioners who were teachers were transferred by the Provincial Public Service Commission without following the procedural prescriptions laid down by a circular issued by the Minister of Education and Higher Education at the Centre which contained the National Teacher Transfer Policy.

    Fernando J., held that ‘while powers in respect of education have been devolved to Provincial Councils, those powers must be exercised in conformity with national policy. Once national policy has been duly formulated in respect of any subject there cannot be any conflicting provincial policy on that subject. Although this judicial dictum will no doubt apply to the facts of this case as the petitioners belong to the Sri Lanka Teachers’ Service, which is as the name suggest an all-island service and there should be equality of treatment of all officers belonging into an all island service irrespective of where they are at a given point of time. However it is doubtful whether such a broad statement of principle, would be applied in respect of all cases as it has a tendency to make legislative devolution to be bereft of any effectiveness if matters by their nature and character confined to Provinces are guided by national policies and not by provincial policies. It has the making of converting the devolution of legislative power and or executive power, undertaken by the 13th Amendment into decentralization of legislative power and / or executive power. It is with due respect submitted that the Court should reflect upon the nature of the subject matters and consider whether they demand a provincial policy due to their provincial characteristic or a national policy as they transcend provincial attributes.

    Governor’s assent to statutes

    Looking at the provisions contained in Article 154C of the 13th Amendment, the Governor of each Province becomes the repository of the devolved executive power. Article 154F (2) which is functionally linked to Article 154C deals with those devolved executive powers which gave the Governor a discretion to exercise. A statute comes into law only upon receiving the assent of the Governor. (Article 154H (1) and (2)). When a statute is presented to the Governor for his assent he shall either assent to the statute or may return it to the Provincial Council together with a message requesting the Council to re-consider it or consider the desirability of introducing amendments as may be recommended in the message (Article 154H(2)), in which event it is imperative for the Provincial Council to re-consider the statute having regard to the message of the Governor but it may pass the statute with or without amendments and present it again to the Governor for his assent. (Article 154H(3)). Thereafter the Governor may assent to the statute or reserve it for reference by the President to the Supreme Court within one month of the passing of the statute for the second time, for a determination that it is not inconsistent with the provisions of the Constitution. Depending on the determination of the Supreme Court the Governor shall either assent or withhold his assent. (Article 154H (4)).

    The above 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)). Furthermore 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 demonstrate 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 intention 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 legislations falling within items mentioned 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 recognize 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 victimized 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 recognizing 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 said 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 in consistent 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 Honorable 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 summarized 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).

     

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