Presidential Rule of Provincial Councils

By Neville Ladduwahetty-September 29, 2017, 9:57 pm 

The Provincial Councils Elections (Amendment) Bill was passed by Parliament with a 2/3 majority and signed into law by the Speaker. The need for a 2/3 majority is reported as being based on the advice of the Attorney General. Whether the Bill provides for the Governors to take over the functions of the Provincial Councils at the end of their statutory period or not, the present understanding is that the Governors would be responsible for the functioning of the Provincial Councils at the end of their statutory periods.

The Constitution however, does not provide for the Governor of a province to take over its functions at the end of the statutory period of a province. What it provides is for the President by proclamation to "assume to himself all or any of the functions of the administration of the Province and all or any of the powers vested in, or exercisable by, the Governor or anybody or authority in the Province" (154L, 1. a). However, such assumptions of power by the President are only under special circumstances such as public security (154J), failure to comply with directions (154K), failure of administrative machinery (154L), financial instability (154N).

Since none of these special conditions listed above exist at this time in any of the provinces, the arrangement for a Governor to assume functions of a province amounts to a violation of the Constitution. However, although it may be a violation as far as the Provincial Councils are concerned and therefore the need for a 2/3 majority as recommended by the AG, in so far as the people of the province are concerned, it is a denial of their franchise. This is a violation of a fundamental right which is an important component of the sovereignty of the people. The impact of the measures adopted by the government could very well have far reaching consequences, unless corrective measures are adopted.

PROVISIONS IN THE INDIAN CONSTITUTION

Article 154L of the Sri Lankan Constitution is an almost verbatim copy of Article 356 of the Indian Constitution. Although this provision is intended to be used sparingly and only in instances of failure of domestic machinery or a democratically elected government being unable to form a government, it has almost always been used by Indian governments to sack state governments whenever it was politically expedient.

For instance, the process started with Jawaharlal Nehru in 1959 dismissing the government in Kerala followed by and Indira Gandhi’s government dismissing elected governments "just to teach their rivals a lesson". The provision of Article 356 was abused to such an extent that India set up the Sarkaria Commission in 1983 to bring about balance between the Central government and State governments.

Although Sri Lankan governments have acted more responsibly in the past, the current arrangement could tempt governments to operate selected provincial and even local government administrations without elected bodies. Despite this, the procedures adopted, however disingenuous and improper, are being perceived as acceptable on grounds that whatever was done by Parliament has the sanctity of Parliamentary privilege because of the supremacy of Parliament. This is a flawed notion.

PARLIAMENTARY PRIVILEGE

There is an understanding within the Judiciary and among Parliamentarians in Sri Lanka that Parliamentary privilege is sacrosanct. This notion has skewed judgments relating to previous applications for interpretations of resolutions passed by Parliament relating to the meaning of a "National Government". As a consequence of this notion the judiciary considers measures adopted by Parliament as being out of bounds for the judiciary to intervene unless specifically requested. This belief is based on practices adopted by former British Parliaments and recorded in Erskine May’s several editions, but have since been revised.

The practice in the British Parliament had been (according to the UK Parliament’s website):

42. "From at least 1818 the practice in the House of Commons was that its debates and proceedings could not be referred to in court proceedings without leave of the House".

43. "One of the uses the courts now make of parliamentary proceedings is as an aid when interpreting Acts of Parliament. This follows from the decision in Pepper v. Hart" 1993.

44. "The House of Lords in its judicial capacity decided that clear statements made in Parliament concerning the purpose of Legislation in the course of enactment may be used by courts as a guide to the interpretation of ambiguous statutory provisions. The Lords held such use of statements did not infringe article 9 because it did not amount to questioning proceedings in Parliament. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what was said and done there".

It is evident from the practices in the UK Parliament cited above, the Judiciary has every right to "interpret Acts of Parliament".

However, instead of seeking inspiration from current thinking in UK, it would be more appropriate to rely on Sri Lanka’s own Constitution and file a Fundamental Rights case for denying the franchise of the People by bringing Provincial and Local administrations under the President’s rule through his agent, the Governor.

CONCLUSION

Despite the fact that Sri Lanka is a Republic and the Preamble to its Constitution states "do hereby adopt and enact this CONSTITUTION as the SUPREME LAW of the DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA" its operations are guided by the notion that Parliament is supreme as in UK. This is not so.

The Parliament is not supreme. What is supreme in Sri Lanka is its Constitution and as the Preamble unequivocally states, it ratifies "the immutable republican principles of REPRESENTATIVE DEMOCRACY". Therefore, the denial of the franchise of the People to appoint their representatives to Provincial and Local administrations is a violations of the foundation on which rests Sri Lanka’s Constitution.