Two Questions Before The Supreme Court On The Divineguma Bill

By Laksiri Fernando -October 27, 2012

Dr Laksiri Fernando

The matter before the Supreme Court in Sri Lanka as the sole legal authority in interpreting the Constitution, and its democratic procedure, in respect of the Divineguma Bill, in my opinion, is:
(1) Not only to determine whether, in the absence of an elected Provincial Council in the North, the Governor could fulfil the requirements specified in Article 154 G (3),
(2) But also in the absence of such a Council, and in the absence of “views expressed” thereon, without any special circumstances like war or natural disaster, whether the Bill that was obligatory to refer to “every Provincial Council” could be placed before Parliament for a decision, under the same provisions in the Constitution.

What is ‘supreme’ in this instance is the provision in the present Constitution, unless the Constitution is changed through due process. The relevant section of the Article on both matters is as follows with emphasis added:

“No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed in 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…”

Let me deal with these two matters one after the other, of course within my competence and expertise.

Council and the Governor

First, that the Governor cannot act on behalf of the Council in this instance is so obvious. It is completely erroneous to refer the matter to the Governor by the President. The Governor simply is not the Council. The Council is an elected body of the people in that Province. The Governor is not, but appointed by the President on behalf of the Center and not the Province. Allowing the Governor to “express his views” on the matter on behalf of the Council defies the election principle of democracy in the Constitution and franchise, apart from the very clear procedure specified in the Constitution as quoted above.

The Governor may have certain legislative functions, but not on the questions of abrogating or relinquishing matters related to the Provincial Council List in the Constitution. It is a prerogative of the people in the province through their elected representatives and that is the Provincial Council. The fact that the Governor is not the proper authority to “express views” on the Divineguma Bill is already conceded implicitly by President’s Counsel, Faizer Mustapha, appearing on behalf of the Government, but “on behalf of the mediatory petitions,” according to the Colombo Page news (22 October 2012). “There was no need for the President to direct it to the Northern Province which has no Provincial Council,” he has pointed out.

Absence of the Council

Then why did the President refer the Bill to the Governor or the Northern Province? “But the President has directed the Bill to the Northern Province with the intention of safeguarding democracy,” the same Counsel has pointed out. Yes, “safeguarding democracy” is important, but through the correct procedure. Otherwise it is not democracy.
The absence of the Provincial Council in the North is not by accident or by special circumstances such as ‘war or natural disaster.’ The President has failed to direct the Commissioner of Elections, for some reason, to hold elections for the Northern Provincial Council since the end of war in May 2009, now for more than three years.

In the absence of their Provincial Council, the people in the North are denied of “expressing their views” on this important bill of Divineguma either way, for or against. This is not only a denial of fundamental right, that the people of other provinces have already exercised (i.e. discriminatory), but also jeopardize the correct procedure that has to be followed in the case of bills such as Divineguma.

There are arguments that by approving the Divineguma Bill in Parliament by two third majority, this impasse can be solved. This presumes two erroneous conditions. First, the situation of in fact the ‘absence of the Council’ is equivalent to the ‘disapproval of the bill’ by the Northern Provincial Council! This is an absurd presumption to make, to say the least.
Second is that the Divineguma Bill could ‘necessarily’ be passed with two thirds majority in Parliament. This is simply an unknown or incorrect presumption to make. In case, the bill fails to seek two thirds majority, and in case the ‘will of the people’ in the North is to approve the Divineguma Bill, then the presumption negates democracy, to say the least.
There are no short cuts to democracy. The holding of elections for the Northern Provincial Council, in my opinion, is imperative.

*The writer is former Senior Professor in Political Science and Public Policy, University of Colombo, and currently Visiting Scholar, University of Sydney.