Pandemonium in the PCs, fisticuffs and broken maces over 20th A

A Southern PC UNP Member runs off with the mace pursued by JO members early this week

A similar rowdy scene at the WPC over the 20A

By C. A. Chandraprema-August 30, 2017, 9:54 pm 

The TV news bulletins are full of footage of provincial council members exchanging fisticuffs, shouting, gesticulating, trading accusations and running away with the council maces. These unprecedented scenes are unfolding in the provincial councils over the 20th Amendment to the Constitution brought to extend the terms of all the provincial councils until the last quarter of 2019 and to hold all the PC elections together at the end of 2019. Even though the government touts this as a bona fide exercise to ‘hold all the PC elections on one day’, everyone knows that the 20th A was introduced because of the government’s lack of an appetite for elections. The government has managed to postpone the local government elections citing various technical reasons for over two and a half years, but they had no way of heading off the elections to the Sabaragamuwa, North Central and Eastern PCs which were to stand automatically dissolved in early October this year.

Once these three PCs stand automatically dissolved on reaching five years after their first meeting, the Elections Commission is obliged to call for nominations to these PCs within a week. Thereafter the district returning officers will fix the date for the poll. There was no way to stop this process from kicking in short of a constitutional Amendment. This is what motivated the government to gazette the 20th Amendment to the Constitution aimed at amending Article 154E of the Constitution according to which all PCs stand automatically dissolved upon completing five years from the date of their first meeting. The Amendment would have allowed a one off extension of the terms of all PCs until the last quarter of 2019. Everyone knows that only Parliament has the power to pass constitutional amendments then why are the provincial councils in an uproar over the 20th Amendment?

To understand what is going on, one has to trace the sequence of events that took place after the 20th Amendment was approved by Cabinet and gazetted. Just days afterwards, there was an open revolt in the SLFP Central Committee against the 20th Amendment which had the effect of depriving the government of the two thirds majority they needed to get the 20th Amendment passed. (Because the 20th A was brought to extend the terms of existing provincial councils without holding an election, it impinges on entrenched Article 3 of the Constitution which guarantees the franchise and therefore would most likely be declared by the Supreme Court to require a referendum in addition to a two thirds majority in parliament. There are multiple petitions before the SC on the 20th A, the first of which was filed by Prof. G.L.Peiris.)

Be that as it may, leaving aside the process in the SC for the moment, after the internal revolt in the SLFP deprived the government of the two thirds majority in Parliament required to get the 20th A passed, the government had no option but to try to use a loophole in the Constitution to try to get the 20th Amendment passed through the back door. This refers to Article 154G (1) and (2) of the Constitution which goes as follows:

"154G. (1) Every Provincial Council may, subject to the provisions of the Constitution, make statutes applicable to the Province for which it is established, with respect to any matter set out in List I of the Ninth Schedule (hereinafter referred to as "the Provincial Council List"). (2) No Bill for the amendment or repeal of the provisions of this Chapter or the Ninth Schedule shall become law unless such Bill has been 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, and - (a) where every such Council agrees to the amendment or repeal, such Bill is passed by a majority of the Members of Parliament present and voting ; or (b) where one or more Councils do not agree to the amendment or repeal such Bill is passed by the special majority required by Article 82."

A reading of Article 154G will reveal that that there is a way to amend the Chapter on the provincial councils in the Constitution without a two thirds majority in parliament – if every single provincial council gives its assent to a certain Amendment to the Chapter on the provincial councils, the Amendment can be passed in parliament with just a simple majority. The procedure for this would be that after the said Amendment is gazetted but before it is placed on the order paper of Parliament, it has to be referred to the PCs by the President for their assent. What obviously happened after the revolt in the SLFP central committee is that without a two thirds majority in Parliament, the only hope that the government had to get the 20 th A passed was to use the provisions of Article 154G.

So obviously it was referred to the PCs by the President before the 20th A was introduced in parliament by Minister Gayantha Karunatillke. When the 20 th A was introduced in Parliament even after the revolt in the SLFP central committee, many people thought that the President had managed to browbeat his followers into submission and had managed to get a commitment from them to give it the two thirds majority it needed. That however is obviously not what has happened in this case. The President tried to push the 20th A in through the back door and for one heady moment, it seemed to be working when the North Central Province voted in favour of it. (The NCP would have of course been one of the beneficiaries of the extension of the terms of the PCs envisaged in the 20th A.) Then things started going wrong in the most unanticipated manner when the Uva Provincial Council voted against it.

The Uva PC was where the UNP was strongest and all the SLFP stalwarts in the Badulla district are with the Sirisena faction. So the 20th Amendment should have been approved by the Uva PC even if all the other PCs had rejected it. Yet the Uva PC was the first to reject it. This was a decisive blow against the government. According to Article 154G(2)(b) of the Constitution, if even one PC rejects a proposed Amendment to the provincial councils Chapter in the Constitution, then it can be passed only with a two thirds majority in Parliament. (If the SC so decides, a referendum will become an additional requirement.) With the rejection of the 20th A by the Uva PC, the worst that can happen under Article 154G has already happened. But since the process of consulting the PCs has been initiated, the 20th A is doing the rounds being disemboweled, drawn and quartered all along the way. The latest episode being in the Southern PC where it has once again been defeated.

What we are now seeing in the PCs is arguably the biggest Constitutional fiasco ever seen in this country. The Constitution Bill burning episode of 2000 does not qualify as a fiasco as such because it was a straight forward case of depriving it of the required two thirds majority. With the 20th Amendment falling by the wayside, it can be seen that the government is trying to hasten the holding of the long postponed local government elections because an island wide election will be less unfavourable to them than an election restricted to the Saragamauwa, North Central and Eastern provinces. At the Presidential and Parliamentary elections in 2015, the ruling coalition lost both the Sabaragamuwa and North Central provinces. So the likelihood that they would lose both provinces at the forthcoming PC elections is very high.

Besides an election in a restricted area would mean that activists of the Joint Opposition would descend on the place in droves whereas at a countrywide election they would be constrained to remain in their own areas. It can be seen that the government is trying to minimise the damage to themselves by last minute changes to the system of election to local bodies. For the first time in the legislative history of this country, a system of election was changed as ‘amendments’ introduced at the committee stage to an LG elections Bill that had been presented to Parliament for a completely different purpose. All these are signs of a government desperately trying to stave off what they anticipate to be a crushing defeat.