| by Laksiri Fernando
(
October 27, 2012, Sydney, Sri Lanka Guardian)
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 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.
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.
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