Parliament should be mindful of the fact that it exercises legislative power of the people It’s the Constitution that is supreme
Parliament is subordinate to the Constitution
I’m trying to get a court ruling to have elections to PCs as soon as possible
In the absence of elected representatives, PC functions will become chaotic
The Speaker has no judicial power
The Government’s constitution making process is unconstitutional
What the President does is the exact opposite of what he promised before the elections
Former Chief Justice Sarath N. Silva, who petitioned the Supreme Court against the newly enacted Provincial Councils Elections (Amendment) Act, in an interview with the Dailymirror aired his views about its consequences. Following are excerpts of the interview.
Q You, as the former Chief Justice, decided to challenge the constitutionality of the Provincial Council Elections (Amendment) Act. What prompted you to do so?
To begin with, we are the Socialist Democratic Republic of Sri Lanka. A Republic is a country governed by the people themselves. The sovereignty is with the people. The Republican Constitution started with the American war of independence in 1780. We are basically a republican democratic country. We have four levels of Government- the President, Parliament, Provincial Councils and Local Government. It’s very important that people should understand this. All these levels of Government derive their authority from the Constitution. The main link between these four levels of Government and the people is the franchise. That is the right to vote. It is inalienable. Franchise and fundamental rights are inalienable.
The local authorities or the fourth level of Government are the closest to people. They maintain roads, clear garbage, maintain sanitary conditions, meet public health requirements etc. We have had a system of Local Government coming from the time of the British. During the period of our ancient kings, we had Rata Sabhas and Gam Sabhas. The Local Government is an essential part of our system. All these bodies are elected.
One person who understood the real significance of Local Governments was former President R. Premadasa. He brought about Pradeshiya Sabhas. He realized the value of having elected bodies at all times. In 1987, there was one law governing all these bodies. He amended it and inserted a section. It says six months before the term of elected council ceases, the election should be conducted. Then, there is a council ready to take over. He realized continuity. It’s like the US Presidential System. The new President is elected before the incumbent leaves office. Although Premadasa hadn’t been educated, he knew these things.
The essential element of good governance is democracy and the rule of law. This Government, elected for good governance, hasn’t conducted elections. The local bodies have been without elected representatives for about two years
We were having the proportional representation for Local Elections at that time. Then, there was a Select Committee headed by Dinesh Gunawardane. It formulated these electoral wards. Now, there is a mix system. That new law was passed in 2012. There was a committee appointed to look into the creation of wards. By August 2015, the present President published the demarcation of wards. All the local authorities went out of office by 2016.
The essential element of good governance is democracy and the rule of law. This Government, elected for good governance, hasn’t conducted elections. The local bodies have been without elected representatives for about two years.
One level of Government, provided for in the Constitution, has ceased to function. People have lost their democratic rights.
QActually what made you challenge the law related to the provincial council elections?
The next level of Government is provincial councils. Article 155 (e) of the Constitution states that every provincial council elected holds office for a period of five years of the first meeting. Three provincial councils are out of office. These elections must be conducted. The Provincial Councils Election Act states that the Election Commission, within one week, shall publish a notice informing that the elections will be held. These are very clear-cut laws. It has worked for 30 years.
This isn’t the Bill that was published in the gazette. People never had an opportunity to challenge it.
The Government used the 20th Amendment to the Constitution to prevent it. It says Parliament can extend the term of provincial councils notwithstanding Article 155(e). When it was taken, the Supreme Court said franchise is affected and Parliament can’t exercise this power. So, the court specified that this law required not only a two-thirds majority, but also the approval of people at a referendum.
In the meantime, there was a law that was in Parliament to have a minimum quota for woman candidates. It is a small enactment. It is only one page. The Government dropped the 20th Amendment and took this up. The public are involved in respect of Bills. Article 78 of the Constitution states the Bill has to be published in the gazette one week before it is placed on the Order Paper of Parliament. This Government extended this period to two weeks in the 19th Amendment. That is for people to have prior notice of the Bill to be enacted. That is a commendable thing. Then, the first reading of the Bill proceeds. That is only a reading of the title of the Bill. Within one week, any person can challenge it in the Supreme Court.
This particular bill wasn’t challenged by anyone because it is fairly straightforward. Then, it was taken for the Second Reading. Section 51 of the Standing Orders states: “On the Second Reading of a Bill, a debate may arise covering the general merits and principles of the Bill. When it is passed, it is referred to the committee stage. There is line by line reading of the respective clauses to enable some corrections to be made. What the Government did on that day is that they deleted all these lines. They introduced a whole new Act coming into 21 pages. Now, an entirely new system of election has been introduced. This isn’t the Bill that was published in the gazette. It isn’t the Bill which people were informed of. People never had an opportunity to challenge it. This isn’t a Bill passed on general merits and principles of the Second Reading.
One person who understood the real significance of Local Governments was former President R. Premadasa. He brought about Pradeshiya Sabhas. He realized the value of having elected bodies at all times
It is hilarious situation. There is one page during the First Reading and the Second Reading. There are 21 pages in the committee stage. That is why I decided to go to court regarding this. Otherwise, they can smuggle in any legislation this way.
QNow, The Speaker Karu Jayasuriya has certified the Bill into Act. The Parliament is considered supreme. Then, will there be any use of your action?
That is a misconception. They say Parliament is supreme. Under our Constitution, no one is supreme. What is supreme is the Constitution. The Constitution starts by stating that this is the supreme law of the Republic. All the other bodies are subordinate. If The Speaker shows me one word saying Parliament is supreme, I will withdraw this case. In Britain, it was earlier held that the Parliament was supreme. There it is now held that the Constitution is supreme although they don’t have any written Constitution. Parliament is subordinate to the Constitution. They have to be mindful that they exercise the legislative power of people. In that sense, people must be informed of what they are going to enact.
The Speaker has certified. It is true. His certification under Article 79 is, “I hereby certify that the Bill has been duly passed by the Parliament. It isn’t just passed. He has overlooked the words ‘duly passed’.
The Constitution starts by stating that this is the supreme law of the Republic. All the other bodies are subordinate. If The Speaker shows me one word saying Parliament is supreme, I will withdraw this case
As for the 19th Amendment, this Government brought in substantial amendments during the committee stage. They did the same regarding the Local Government Election Law. But, they didn’t change a lot. In this case, they have brought a whole new thing. If this goes like this, they will publish something and pass another entirely different. If this happens, the whole purpose of exercising people’s legislative power will be lost. That is why I have gone to court.
People are deprived of their sovereignty. Now the Chairman of the Elections Commission says he doesn’t have the pitch to play on. He clowns around with this.
QDoes he have the legal authority to withhold elections since the Act is now in play?
He has to make an announcement. He will say his announcement is made, but he can’t have elections until constituencies are created. They have smuggled in these clauses. We will get a final ruling some time later. For the moment, there is a law in operation for 30 years. We had all the elections under that law. We must have an immediate solution until delimitation is done.
QDoes it mean your sole intention is to have an election immediately?
That is right. That is the point. There is an applicable law. This law has been in operation since 1988. There must be a council. The important thing is there is a whole list of exclusive powers vested with the Provincial Councils. If there is no elected provincials, all these things become dysfunctional. Most of the hospitals and schools come under the provincial ministries.
After 1987, we have had a separation of functions. We have the provincial council list, the reserved list and the concurrent list. The provincial council list is exclusive to the provincial councils. There are so many subjects. The implementation of provincial economic planning, education, educational services and Local Governments falls under the purview of the provincial council. You also get roads, bridges, social services, rehabilitation, and agriculture among them.
QNow the Government states that the councils will be placed under the respective Governors to be ruled. What is your view?
On the other hand, this Government is talking about devolution of power. They are trying to frame a new Constitution. Yet, they are silent on the provisions of the Constitution related to devolution itself
The Governor has no legislative power. He is only a repository of the executive power. The Constitution states there shall be a board of minsters with the Chief Minister as the head with not more than four others to aid and advise the Governor of the province in the exercise of functions. Powers are exercised in the name of Governor. The Governor shall in the exercise of his functions act in accordance with such advice. He has no independent rights. He can’t act on his own. He has to act upon the Chief Minister and the board of ministers.
There is a chaotic situation at Local Governments. That is a continuing problem. Now, little by little, all the institutions are ceasing to function.
On the other hand, this Government is talking about devolution of power. They are trying to frame a new Constitution. Yet, they are silent on the provisions of the Constitution related to devolution itself. The Tamil parties also say it is alright. Then, they can repeal the Provincial Council System. That can be done in a systematic way. I have received information that the Tamil parties also don’t mind the Provincial Councils ceasing to function in this manner. From their point of view, Northern Province Chief Minister C.V. Wigneswaran is a problem to TNA leader R. Sampanthan.
QIf the Supreme Court decides in your favour, won’t it lead to a clash between the judiciary and Legislature?
The Speaker has nothing to do with this thing at all. The interpretation of the Constitution and law is exclusively with the court. It has the sole and exclusive jurisdiction. The Supreme Court is vested with jurisdiction related to constitutional matters. It is the final authority on constitutional matters. The Speaker has no judicial power. Earlier, there was a ruling by the then Speaker the late Anura Bandaranaike. There was an impeachment motion. The Supreme Court gave a stay order. Then, Anura Bandaranaike said no. He said the impeachment process was parliamentary business. That is correct. It is something to do with the removal of judges. It is certainly within the role of Parliament. The Supreme Court can’t intervene in that. It doesn’t mean that the Supreme Court can’t decide on constitutional matters. The enactment of this law isn’t constitutional. It isn’t the law that was published in the gazette.
QSome fear that the Government will take steps for the enactment of the new Constitution in the same way it circumvented the procedure. What is your view?
The entire Constitution making process is also unconstitutional. There are particular ways providing for the amendment of the Constitution. They are given very clearly. The Bill for the amendment of the Constitution should be determined by the Cabinet. Then, the Cabinet should decide whether it should be passed by a two-thirds and referendum. If the Cabinet decides, the Supreme Court won’t exercise its jurisdiction. It must go according to this. Otherwise, the Supreme Court can order a referendum.
There is no provision made in the Constitution for a Constitutional Assembly. At least it must derive its authority from the Constitution. It derives authority from some resolution in Parliament. The Parliament can’t do that. The Parliament must act according to the Constitution. The Government derailed the procedure.
That is a serious matter. In the United States, the Constitution has existed for 200 years. They go strictly according to the Constitution. Here, it has become a fashion to change the Constitution. Today, Dr. Jayampathi Wickramaratne is involved. In 1996, he was involved with Chandrika Kumaratunga to draft the Constitution. It was put to the Parliament. The UNP burned the copies of that Constitution. The same man is doing it now. It is frightening. These are people with no respect for the due process. We fear that they will subvert the process and enact something unacceptable to the people.
If it is put to a referendum, it will be divisive. In such a situation, Tamils will say it’s Federalism and the Sinhala Buddhists unitary status. Once again, tension will build up.
QWhat do you think of the interim report of the Constitutional Reforms?
They are raising issues. An interim report is not a draft legislation. It has vague ideas. Persons will interpret ideas in different ways. There is now a huge dispute building up between the parties.
President Sirisena, in his manifesto, didn’t mention a new Constitution. He only said the Constitution would be subjected to certain amendments. He said the 19th amendment, proposed by Ven. Athuraliye Ratana Thera’s Pivithuru Hetak Organization and Ven. Maduluwave Sobhitha Thera, would be done. I was involved in drafting those proposals for Ven. Ratana Thera Thera. According to those proposals, the President has one term. After his election, he ceases to be a member of a political party. If President Sirisena stuck to that, he would have faced no problem. At the end of five years, he would have retired gracefully. Now, he has become the leader of a party. He did the exact opposite of what he promised and has got in to a big mess.
QAre you planning to play a role in politics?
No. I support the Joint Opposition in their political activities. Issues like this have to be fought on a political basis. I am fighting on a legal basis. They must give political leadership to this. I won’t contest elections or hold any office. I have come here in the interest of the public.