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The present Constitution Is it Federal or not?

2017-10-04 00:35:52
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At the moment when proposals for drafting a new Constitution or amending the present Constitution are underway, it would be extremely relevant to understand the true face (nature) of the present Constitution, since it is from this premise that we will have to proceed either to abolish or amend it. Further the confusion created to obfuscate the issues demand clearance of the ground on which we stand presently. For such an understanding the observations made by Raja Wanasundara the senior most Judge who sat on the panel to adjudicate the Constitutionality of the 13th Amendment would be indispensable.   

  • 13A laid the foundation for a Federal State
  • Full implementation of 13A all denied powers would be brought back
  • The most urgent and pressing duty on us is to remove these pieces of legislation from our statute book

These observations were made by him in the report-‘Report of the National Revival Commission’- initiated by the Patriotic National Movement and headed by him. I was the coordinating member for that Commission. This extract is from his report:   

Provincial Councils Bill

We now turn to the Provincial Councils Bill. The chequered course they followed in the process of the enactment and a detailed analysis of their provisions should be made public knowledge. These Bills were apparently placed on the Order Paper of Parliament on October 9, 1987. Having normally obtained the opinion of the Attorney General under Article 77, the President proceeded to invoke the jurisdiction of the Supreme Court under Articles 120 and 121 to determine whether the 13th Amendment required the approval of the people at a referendum by virtue of the provisions of the Article 83”

 It is that difficult task we now approach. The division of the country and creation of a separate Dravidian state is being done step by step covertly and incrementally

As regards the so called majority judgment of the Chief Justice Shravanada, Justice Atukorale, Percy Colin Thome and Thambiah along with that of Justice Parinda Ranasinghe (who, by and large agreed with them, but dissented on one important matter) the wealth of informed and learned opinion in legal circles is that the reasoning in those judgments are mistaken and patently erroneous. The views of just two eminent legal experts bear this out. H.L.de Silva, one of our most eminent and distinguished lawyers and later our Resident Representative to the UN has this to say of those judgments.   

“It is difficult to agree with the view of the majority of the Court that the changes brought about by the 13th Amendment did not take the effect of the Constitution becoming at least quasi-federal, for the presence of certain unitary features in a constitution does not prevent the system of government from being federal in practice. In a sense, therefore, the constitution position now obtaining in Sri Lanka is not substantially different from the kind of federal system that prevails in India’.

Justice Shirani Bandaranayake, now the most Senior Judge in the Supreme Court, and often acting in the office of the Chief Justice, before her elevation to the Bench and then a respected Senior Lecturer in the Faculty of Law, University of Colombo, expressed the following opinion when the judgment was publicized. She said:   

The 13th Amendment, at the least, sets up a quasi federal structure. As Rajiv Gandhi himself described it to the Tamils, it goes beyond the Indian model

“Provincial Councils are on a par with the Parliament and the Councils come within the category of subsidiary sovereign bodies. This demonstrates the division of legislative power”

“Secondly, Article 154,G(B) clearly points out that in a conflict between the statues of Provincial Councils and an existing law ( passed by the Parliament) with regard to a matter on the Provincial Council List, the existing law (passed by Parliament) shall remain suspended and be in operation within the Province so long as that statute is in force”.

‘Moreover, this leads to the further argument that the provisions of the 13th Amendment are contravening Article 2 of the 1978 Constitution. Article 2 precisely announces that Sri Lanka is a unitary state, and in the present circumstances, one could argue that Provincial Councils, which are empowered to make statues which are on a par with laws made by the Parliament, and to enact statues that can suspend and render inoperative laws made by Parliament. This has made the country federal in nature. This illustrates clearly that the devolution of power has not been carried out within the framework of the Constitution”.

The dissenting judgments of Justice R.S. Wanasundara, Justice O. S. M. Seneviratne and Justice I. H. de Alwis and Justice H.A.G. de Silva point out the numerous violations of the Constitution.   

The 13th Amendment, at the least, sets up a quasi federal structure. As Rajiv Gandhi himself described it to the Tamils, it goes beyond the Indian model; which is a federation with strong centralization features. India’s relentless pressures continue. Within two days of the death of Prabhakaran, high Indian officials were at our doorstep to remind us to get on with the implementation of the 13th Amendment. Every visit of them here and whenever our high officials visit New Delhi, the burden of the talks is to remind us to implement the 13th Amendment plus! plus!!.   

The 13th Amendment has laid the foundation for a federal state. It is a matter of time for a division to take place. The existing structure is sufficient to be used by India and the Tamils to prise open the unity of this country and divide our country. Leaving India apart, even if our own opposition had been in power, we would be having an Eelam by now. Therefore, the most urgent and pressing duty on us is to remove these pieces of legislation from our statute book. It is that difficult task we now approach. The division of the country and creation of a separate Dravidian state is being done step by step covertly and incrementally.”   

The existing structure is sufficient to be used by India and the Tamils to prise open the unity of this country and divide our country

What masked the federal nature of this Constitution were the non-granting of Police and land powers and the appointment of a Governor with presidential powers. With the full implementation of the 13th Amendment all those denied powers would be brought back revealing the true nature of this deceptive Constitution.   

Those words of Justice Wanasudara, “leaving India apart; if our own opposition had been in power, we could be having an Ealam by now” keeps reverberating within me at this juncture. Don’t they sound prophetic when we are beginning to realize ultimately that what matters are not who constitutes the opposition but the role 
they play?   


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