Legal Services and Laws of Sri Lanka
SLR - 1987 Vol.2, Page No - 312
IN RE THE THIRTEENTH AMENDMENT TO THE CONSTITUTION
AND THE PROVINCIAL COUNCILS BILL
S. SHARVANANDA, C.J., R. S. WANASUNDERA, J.,
P. COLIN-THOME, J., K. A. P. RANASINGHE, J.,
E. A. D. ATUKORALE, J, H. D. TAMBIAH, J.,
L. H. DE ALWIS, J., O. S. M. SENEVIRATNE, J.,
AND H. A. G. DE SILVA, J.,
S. C. 7/87 (Spl) TO S.C. 48/87 (Spl). S.D. No. 1/87 & S.D. No. 2/87
OCTOBER 22, 23, 26, 27, 28, 29 AND 30, 1987.
Thirteenth Amendment to the Constitution-Provincial Councils Bill-Presidential Reference-Articles 18, 76, 83, 120,121,and
138 of the Constitution-Referendum-Chapter XVIIA, Articles 154A to T.
The President referred two Bills entitled "Thirteenth Amendment to the Constitution A Bill to amend the Constitutionofthe
Democratic Socialist Republic of Sri Lanka" and Provincial Councils Bill" to the SupremeCourtunderArticle121ofthe
The Thirteenth Amendment sought to amend the provisions in the Constitution relating to language (Article18),jurisdiction
of the Court of Appeal by addition of jurisdiction to review orders of the High Court made in its new appellatejurisdiction
(Article 138 (1) and by the addition ofanewChapterXVIIAandArticles154Ato154Trelatingtotheexecutive,
administrative and legislative powers of Provincial .Councils and thepowerofamendment,overridingorrepealingthem
vested in Parliament.
Determination: (Per Sharvananda, C.J., Colin-Thome". J., Atukorale, J. and Tambiah, J.)
Neither the Provincial Councils Bill nor any provisions of the Thirteenth Amendment to the Constitution requires approvalby
the People at a Referendum by virtue of the provisions of Article 83. Once the Bill is passedbya2/3majorityandthe
Constitution amended accordingly the Provincial Councils Bill will not be inconsistent with the so amended Constitution.
The Unitary character of the State of which the characteristics are the supremacy of the central Parliament andtheabsence
of subsidiary sovereign bodies remains unaffected. The Provincial Councils do not exercise sovereignlegislativepowerand
are only subsidiary bodies exercising limited legislative power subordinate to that of Parliament. Parliament hasnotthere
by abdicated or in any manner alienated its legislative power. Delegated legislation is legalandpermittedanddoesnot
involve any abandonment or abdication of legislative power in favour of any newly created legislative authority.
The concept of devolution is used tomeanthedelegationofCentralGovernmentpowerwithouttherelinquishmentof
supremacy. Devolution may be legislative or administrative or both and should bedistinguishedfromdecentralisation.The
scheme of devolution set out in the Bills does not erode the sovereigity of the People and does not require theapprovalof
the People at a Referendum.
Ranasinghe, J. agreed with the above determination but held that the provisions of clauses 154 (2) (b and (3) (b) of the
Bill to amend the Constitution (Thirteenth Amendment) require approval by the People at a Referendum.
Wanasundera, J., L. H. de Alwis, J., Seneviratne, J. and H. A. G. de Silva, J., dissented and determined that both Bills in
their totality required the. approval of the people at a Referendum.
REFERENCE by H: E. the President to the Supreme Court for its determination. Petitions filed under Article 121 of the
R. K. W Goonesekera with Somasara Dassanayake, Gomin Dayasiri and Nimal S. de Silva for petitioner in S.C.7/87 (Spl) and
S.C. 8/87 (spl).
H. Bandula Kariyawasam petitioner in person in S.C. 9/87 (Spl) and S. C. 10/87 (Spl).
Prins Gunasekera with K. Abeypala and W. Kulatunga for petitioner in S.C. 11/8 7 (Spl) and S.C. 12/87 (Spl).
P. A. D. Samarasekera, P.C. with G. L. Geethananda A. L. M. de Silva for petitioner in S.C. 13/87 (Spl).
A. C. Gooneratne, Q. C., with A. K. Premadasa, P. C., Nevil Jacolyn Seneviratne, S. Semasinghe, D. S. Wijesinghe, N. S. A.
Goonatilleke, D. P. Mendis, K. Jayasekera, K. S. Tillekeratne, J. Salvatura, Mrs. S. Jayalath, C. Ladduwahetty instructed by
S. D. S. Somaratne for petitioner in S.C. 14/87 (Spl).
Eric Amerasinghe, P. C., with N. S. A. Goonatilleke, D. P. Mendis, M. B. Peramune and Miss D. Guniyangoda for petitioner in
S.C. 15/87 (Spl).
A. C. Gooneratne Q.C., with R. K. W. Goonesekera, Pani Ilangakon and Chandrani Jayawardena for petitioner in S.C. 16/87
Gamini Iriyagolle with N. S. A. Goonetileke, C. Amerasinghe, D. P. Mendis, M. W.Amarasinghe, P. E. W. Gunadasa, V. S.
Goonewardena, W. Dayaratne, W. B. Ekanayake, W. N. Abeyratne, Mrs. Sunitha Gunaratne, Miss. R. Jayalath ShanthaSenadheera
and Raja Madanayake for petitioner in S.C. 17/87 (Spl),
S.C. 18/87 (Spl). S.C. 19/87 (Spl) and S.C. 20/87 (Spl).
Dharmapala Seneviratne petitioner in person in S.C. 21/87 (Spl).
A. A. de Silva with G. A. Fonseka, K. Ratnapala Pens, Raja Mudannayake, Jeyaraj Fernando pulle, S. Medahinna, Mahinda
Wickremaratne instructed by Charita Lankapura for petitioners in S.C.-22/87 (Spl) and S.C. 23/87 (Spl).
Gamini Iriyagolle with C. Amerasinghe, W. Dayaratne, C. Padmasekera, K. K. R. Peiris,Janaka de Silva, Raja Mudannayake, D.
Galappathi and Wilfred Perera for petitioners in S.C. 24/87 (Spl) and S.C. 25/87 (Spl).
Anil Silva with N. R Ranamukarachchi, Shanta Senadhaera, Janaka de Silva, CharitaLankapura, Bernard Hettiarachchi, and D.
Galappathi for petitioner in S.C 26/87 (spl) and S. C 27/87 (spl).
Sarath Wijesinghe with D. K Rupasinghhe and U. A, Premasundara instructed byWijesinghe Associates for petitioners in S.C.
28187 (SO). S.C. 29/87 (Spl), 45/87. 46/87 (Spl).
E D. Wickramanayake With Obeysekera, Gomin Dayasin M. W Amarasinghe, Freddie Abeyratne, Nimal Siripala de silva ,A. A. M.
Marleen, U. L. M. Farook Amir Sheiff and Javid Yusuf for petitioners in S.C. 30/87 (SO) and S. C. 31/87 (Spl).
Eric Amerasinghe PC with N.S.A Gunatilleke, D. P Mendis, P.E.V. Gunadasa, M B. Peramuna and Miss D Guniyangoda for
petitioner in S.C. 32A37 (SPl)
Mark Fernando P C with Abdul Rahuman and Miss D. Goonetilleke for petitioner (under Rule 63 (iii) of S.C. Rules 1978) in S
.C. 33/87 (Spl). and S.C. 34/87 (Spl).
S. J. Kadingamar Q.C. with S .C Crossette Tambiah, Desmond Fernando, Suriya Wickremasinghe, S.H.M Reeza, Suren Peiris and N.
Murugesu for petitioner (under Rule 63 (i) of S.C. Rules 1978) in S. C. 35/87 (Spl).
G. F Sethukavaler, P.C. with Desmond Fernando, Suriya Wickremasinghe, K. Kanaglswaran, K, Neelakandan, S. Mahenthiran,
Suren Peiris and A. A. M. Illiyas for petitioner (under Rule 63 (W) of S.C. Rules 1978) in S. C. 36/87 (Spl).
L. O. H. Wanigasekera petitioner in person in S.C. 37/87 (Spl).
S. K. Sangakkara petitioner in person S.C. 38/87 (Spl).
R. B. Seneviratne for petitioner S.C. 39/87 (Spl).
K.M.P Rajaratne with Kacohana Abeypala and P Dissanayake for petitioners in S.C. 40/8.7 (Spl) and S.C. 41/87 (Spl).
Gamini lrriyagolle with C.S. Hettihewa, Nihal Senaratne, M W Seneviratne instructed by Ranjith Panamulla for petitioner in
S.C. 42/87 (spl).
Nimal Sennayake PC with Sarath Wijesinghe, Miss S. M Senaratne, Mrs. A.B. Dissanayake, Saliya Mathew, Miss Lalitha
Senaratne, L. M. Samarasinghe and D.S.Rupasinghe for petitioner in S.C. 43/87 (Spl).
Nimal Senanayake P. C with Kithsiri Gunaratne Sanath Jayailleke, Sarath Wijesinghe, Arunatilleke ale Silva, Miss A. D.
Thelespha and D. S. Re pasinghe for petitioner in S. C.44/87 (Spl).
M. M Aponso petitioner in person in S.C. 4T/87 (Spl.) and S.C.48/87 (Spl).
Dr. H. W Jayewardena Q.C. with L. C. Seneviratne. P.C. Faisz Mustapha and Miss T. Keenawinna for H. E. the President in S.C.
K. N, Choksy P.C. with Faisz Mustapha for H. E. the President in S.C. No. 2/87.
Shiva Pesupathi P.C., Attorney-General with K.M.M.B. Kulatunge P.C., Solicitor-General, M. S. Aziz, D. S. G. and Ananda
Kasturiarachchi S.C. as amicus curiae.
November 6, 1987.
SHARVANANDA, C.J., P. COLIN-THOME, J., ATUKORALE, J.
AND TAMBIAH, J.
Two Bills entitled "Thirteenth Amendment to the: Constitution-A Bill to amend the Constitution oftheDemocraticSocialist
Republic of Sri Lanka" and "Provincial Councils Bill"respectivelywereplacedontheorderpaperofParliamentand
presented to Parliament by the Honourable Minister of Public Administration and MinisterofPlantationIndustrieson9th
October, 1987. The Constitutional jurisdiction vested in this Court by Article 120oftheConstitutiontodeterminethe
question whether the Bills or any provision thereof are inconsistent with the Constitution has been invokedbytheseveral
petitioners in the above applications and by His Excellency the President by a written reference under Article 121.
Clause 2 of the Bill to amend the Constitution states that Article18oftheConstitutionoftheDemocraticSocialist
Republic of Sri Lanka is hereby amended inter alia as follows
(b) by the addition immediately after paragraph 1 of that Article of the following paragraphs
(2) Tamil shall also be an official language
(3) English shall also be the link language
(4) Parliament shall by law provide for the implementation of the provisions of this Chapter."
Clause 3 of the Bill to amend the Constitution further states that Article 138 of the said Constitution is hereby amendedin
paragraph (1) of that Article as follows:
"(a) by the substitution, for the words 'committed by any court of First Instance'ofthewords'committedbytheHigh
Court, in the exercise of its appellate or original jurisdiction or by any Court of First Instance', and
(b) by the substitution, for the words 'of which such Court of First Instance' of the words 'of which such High Court,Court
of First Instance'."
Clause 4 of the Bill to amend the Constitution adds a new Chapter and Articles and inserts same after Article 154 andstates
that the same shall have effect as Chapter XVIIA and Articles 154A to 154T of the Constitution.
The Provincial Councils Bill seeks to provide for the proceduretobefollowedinProvincialCouncils,afewmatters
relating to Provincial Public Service and for matters connected therewith or incidental thereto.
As the questions involved in the Reference and Petitions Were in the opinion of theChiefJusticeofgeneralandpublic
importance, the Chief Justice in the exercise of his powers under Article 132 (3) oftheConstitution,directedthatthe
Reference and Petitions be heard by a Full Bench consisting of all the Judges of the Supreme Court.
We took up all the References and the Petitions in connection with the two Bills together for hearing.TheAttorney-General
and other Counsel mentioned above appeared and assisted us in the consideration of the above Reference and Petitions.
The Petitioners in Applications 7/87-32/87 and 37/87-47/87 contended that the Proposed Bills are inconsistent with
(a) The Constitution as a whole,
(b) The Sovereignty of the People as guaranteed by Articles 3 and 4 of the Constitution, and
(c) The Unitary State postulated by Article 2 of the Constitutionand
(d) that the Bills were inconsistent with Article 9 of the Constitution and hence required the approval by the People at a
(e) that the Bill to amend the Constitution-the Thirteenth Amendment to the Constitution, seeks to amend Article83ofthe
Constitution, by adding the provisions of Article153G(2)(b)andArticle.153G(3)(b)totheentrenchedprovisions
specified in Article 83 of the Constitution
That the said Bills contain provisions that cannot be enacted except by following the procedure laid down inArticle83of
the Constitution, that is to say, by 2/3 of the Members of Parliament voting in favourofthemandtheapprovalofthe
People being given at a Referendum, while other provisions relate to the basic structure orframeworkoftheConstitution
and are not amendable.
The determination of four Judges of this court viz: Chief Justice, Justice P. Colin Thome, Justice E.A.D.Atukoraleand
Justice H. D. Tambiah, is that for the reasons set out below neither the Bill nor any provision of theThirteenthAmendment
to the Constitution-a Bill to amend the Constitution of the Democratic Socialist Republic of Sri Lanka, requires approvalby
the People at a Referendum by virtue of the provisions of Article 83,andthatoncethesaidBillispassedandthe
Constitution amended accordingly, the Provincial Councils Bill will not be inconsistent with the so amended Constitution.
The determination of Justice K. A. P. Ranasinghe is that the provisions of clause 154G(2)(b) and 3(b) of the "Billtoamend
the Constitution of Sri Lanka (Thirteenth Amendment to the Constitution)" require approval by the People at aReferendumby
virtue of the provisions of Article 83. He agrees with the view that noprovisionoftheaforesaidBilltheThirteenth
Amendment to the Constitution is inconsistent with any of the provisions of Articles 2, 3, 4 or 9oftheConstitution.He
states that the. constitutionality of the provisionsoftheProvincialCouncilsBillwilldependupontheaforesaid
amendment to the Constitution becoming law, as set out by him, in terms of Article 83 of the Constitution.
The determination of the other four Judges viz: Justice R. S.Wanasundera,JusticeL.H.deAlwis,JusticeO.S.M.
Seneviratne and Justice H. A. G. de Silva is that, the provisions of the Thirteenth AmendmenttotheConstitutionrequire
the approval by the People at a Referendum by virtue of the provisions of Article 83 of the Constitution.
A technical objection was taken by some of the Petitioners that the Bill for the 13th Amendment to the Constitution doesnot
conform to Article 82(1) of the Constitution and that hence it is not a proper Bill that can betaken up for considerationby
this court under Article 120 of the Constitution. It was said that the Bill was not for the amendment ofanyProvisionsof
the Constitution, as a whole chapter, namely Chapter XVIIA consisting of a number of newprovisionscoupledwithaNinth
Schedule with appendices and lists is sought to be added and consequential amendments have not beenexpresslyspecifiedin
the Bill, in terms of Article 82 (1).
We do not see any substance in this objection. No consequential amendment of the provisions of the Constitutionisinvolved
by the addition of Chapter XVIIA. Article 82(7) states that an amendment includes, repeal, alteration and addition.Thenew
Chapter XVIIA is an addition to the provisions of the Constitution and therefore constitutes an amendment. Itdealswitha
new subject matter and no consequential amendment is, involved. In our view the Bill is in no waydefective.TheBillhas
been properly placed on the Order Paper of Parliament and this court can exercise its jurisdiction under Article 120ofthe
Constitution in respect of that Bill. In any event the question whether a Bill does comply with the requirementsofArticle
82(1) is a matter for the Speaker of Parliament.
The main contentions of thepetitionerswerethatthenewChapterXVIIAconsistsofseveralprovisionswhichare
inconsistent with the provisions of entrenched Articles 2 and 3 of the Constitution and therefore that Chapter cannotbecome
law unless the number of votes cast in favour thereof amounts to not less than 2/3 of the whole number of members(including
those not present) and is approved by the People at Referendum asmandated by Article 83 of the Constitution.
Article 2 states that the Republic of Sri Lanka is a Unitary State:
It was submitted that clause 4 of the 13th Amendment Bill which contains Chapter XVIIA seeks toestablishaconstitutional
structure which is Federal or quasi-Federal and hence that clause is inconsistent with-Article 2.
The term "unitary" in Article 2 is used in contradistinction to the term"Federal"whichmeansanassociationofsemi-
autonomous nits with a distribution of sovereign powers :between the units and the centre. In a UnitaryStatethenational
government is legally supreme over all other levels. The essence of a Unitary State Js that the sovereignty isundividedin
other words, that the powers of the central government are unrestricted. The two essential qualities of a UnitaryStateare
(1) the supremacy of the central Parliament and (2) the absence of subsidiary sovereign bodies. It does not mean theabsence
of subsidiary law-making bodies, but it does mean that, they may exist and can be abolished at the discretion of thecentral
authority. It does, therefore, mean that by no stretch of meaning of words can those subsidiary bodies becalledsubsidiary
sovereign bodies and finally, it means that there is no possibility of the central andtheotherauthoritiescominginto
conflicts with which the central government, has not the legal power to cope. Thus, it isfundamentaltoaUnitaryState
that there should be
1. Supremacy of the central Parliament,
2. The absence of subsidiary sovereign bodies.
On the other hand, in a Federal State the, field of government. is divided between the Federal and Stategovernmentswhich.
are not subordinate one to another, but are co-ordinate and independent within the sphere allotted to them. The existenceof
co-ordinate authorities. independent of each other is the gist of the federal principle. The Federal government issovereign
in some matters and the State governments are sovereign in others. Each within its own spheres exerciseitspowerswithout
control from the other and neither is subordinate to the other. It is this featurewhichdistinguishesaFederalfroma
unitary Constitution in the latter sovereignty rests only with the central government,
Dr Wheare in his Book "Modern Constitutions" brings out the distinction at page 19
...in a Federal Constitution the powers of government are divided between a government for the whole country andgovernments
for parts of the country in such a way that each government is legally independent within its own sphere. The governmentfor
the whole country has its own area of powers and itsexercisesthemwithoutanycontrolfromthegovernmentsofthe
constituent parts of the country, and these latter in their turn exercisetheirpowerswithoutbeingcontrolledbythe
Central Government. In particular the legislature of the whole country has limited powers and the legislatures oftheState
or Provinces have limited powers. Neither is subordinate to the other. Both are co-ordinate. In aunitaryConstitution,on
the other hand, the legislature of the whole country is the Supreme Law-making body inthecountry.Itmaypermitother
legislatures to exist and to exercise their powers, but it has the right, in law, to overrule them theyaresubordinateto
The question that arises is whether the 13th Amendment Bill under consideration createsinstitutions,ofgovernmentwhich
are supreme, independent and not subordinate within their defined spheres. Application of this testdemonstratesthatboth
in respect of the exercise of its legislative powers andinrespectofexerciseofexecutivepowersnoexclusiveor
independent power invested in the Provincial Councils. The Parliament and Presidenthaveultimatecontroloverthemand
In regard to legislative power, although there is a sphere of competence defined by the two Bills both in respect ofmatters
set out in the Provincial list and in respect of matters set out in the concurrent list withinwhichaProvincialCouncil
can enact statutes, this legislative competence is notexclusiveincharacterandissubordinatetothatofCentral
Parliament which in terms of Article 154G(2) and 154G(3) can, by followingtheproceduresetouttherein,overridethe
Provincial Councils. Article 154G conserves the sovereignty of Parliament in the legislative field. Parliament canamendor
repeal, the provisions in the Bill relating to, the legislative authority of the Provincial Councils. The ProvincialCouncil
is dependent for its continued existence and validity and for itslegislativecompetenceinrespectofmattersinthe
Provincial list and in the concurrent list on Parliament. It was submitted by the Petitioners that Articles 154G(2)and(3)
restrict the legislative powers of Parliament in respect of matters in the Provincial Council list and the concurrent list.
In our view Articles 154G (2) and (3) do not limit the sovereign power of Parliament. They only impose procedural
The Privy Council in Bribery Commissioner vs. Ranasinghe, 66 N.L.R. 73 at page 83 has relevantly observed -
"A Parliament does not cease to be sovereign whenever its component members fail toproduceamongthemselvesarequisite
majority e.g. when in the case of ordinary legislation the voting is evenly divided or when in thecaseoflegislationto
amend the Constitution there is only a bare majority if the Constitution requires something more. The minorityareentitled
under the Constitution of Ceylon to have no amendment of it which is not passedbya2/3majority.Thelimitationthus
imposed on some lesser majority of members does not limit the sovereignpowersofParliamentitself,whichcanalways,
whenever it chooses, pass the amendment with the requisite majority."
No abridgment of legislative sovereignty is involved when rules prescribe as to how legislative authority canbeexercised.
Article 154G(2) and (3) merely set out the manner and form for the exercise of its legislative power by Parliament torepeal
or amend the provisions of Chap. XVIIA and the Ninth schedule or to legislate inrespectofanymatterincludedinthe
Provincial Council List.
A legislature can provide not merely that a constitutional amendment shall follow certain procedure (suchasreceivingthe
assent of a special majority) or be approved by a majority of the electors at a Referendum but also thatanyActrepealing
or amending the Act so providing shall follow the "same manner and form".
Rules which prescribe the manner and form for the exercise of legislative power by Parliament do not impinge onorderogate
from the sovereignty of Parliament. Attorney-General for New South Wales v. Trethowan  A.C. 526Harris v. Ministryof
Interior, (1952) 2 S.A.L.R. 428, "Harris case established the principle that Parliament may be sovereign and yetbesubject
to the manner and form for the legally effective expression ofitswill"(ColinTurpininBritishGovernmentandthe
Constitution (1986) at 37).
Thus Parliament can in the exercise of its powers conferred on it by the Constitution override the Provincial Council. This
shows that no question of legislative competition can arise in the scheme contained in the Bills.
With respect to executive powers an examination of therelevantprovisionsoftheBillunderscoresthefactthatin
exercising their executive power, the Provincial Councils are subject to the control of thecentreandarenotsovereign
Article 154C provides that the executive power extending to the matters with respect to which a Provincial Council haspower
to make statutes shall be exercised by the Governor of the Province either directly or throughMinistersoftheBoardof
Ministers or through officers subordinate to him, in accordance with Article 154F.
Article 1 54F states that the Governor shall, in the exercise of his functions, act in accordance withsuchadvice,except
in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.
The Governor is appointed by the President and holdsofficeinaccordancewithArticle4(b)whichprovidesthatthe
executive power of the People shall be exercised by the President of the Republic,duringthepleasureofthePresident
(Article 154B(2)). The Governor derived his authority from the President and exercises the executive power vested inhimas
a delegate of the President. It is open to the President therefore by virtue of Article 4(b)oftheConstitutiontogive
directions and monitor the Governor's exercise of this executive power vested in him. AlthoughheisrequiredbyArticle
154F(1) to exercise his functions in accordance withtheadviceoftheBoardofMinisters,thisissubjecttothe
qualification "except in so far as he is by or under the Constitution required to exercise his functions or any ofthemin:
his discretion." Under the Constitution the Governor as arepresentativeofthePresidentisrequiredtoactinhis
discretion in accordance with the instructions and directions of the President. Article 154F(2) mandates that theGovernor's
discretion shall be on the President's directions and that the decision of the Governor astowhatisinhisdiscretion
shall be final and not be called in question in any court on the ground that he ought or oughtnottohaveactedonhis
discretion. So long as the President retains, the power to give directions to the Governorregardingtheexerciseofhis
executive functions, and the Governor is bound by such directions superseding the advice of the Board of Ministers andwhere
the failure of the Governor or Provincial Council to comply with or give effect to any directions given totheGovernoror
such Council by the President under Chapter XVII of the Constitution will entitle the President to hold that a situationhas
arisen in which the administration oftheProvincecannotbecarriedoninaccordancewiththeprovisionsofthe
Constitution and take over the functions and powers of the Provincial Council (Article154Kand154L),therecanbeno
gainsaying the fact that the President remains supreme or sovereign in the executive fieldandtheProvincialCouncilis
only a body subordinate to him.
The Bills do not effect any change in the structure of the Courts or judicial power of the People. The Supreme Court andthe
Court of Appeal continue to exercise unimpaired the several jurisdictions vested in them by the Constitution. Thereisonly
one Supreme Court and one Court of Appeal for the whole Island, unlike in a Federal State The 13th Amendment Bill onlyseeks
to give jurisdictions in respect of writs of Habeas Corpus in respect of persons illegally detained within theProvinceand
Writs of Certiorari, Mandamus and Prohibition against any person exercising within the Province any power underanylawor
statute made by the Provincial Council in respect of any matter in the Provincial Council list and appellate jurisdictionin
respect of convictions and sentences by Magistrate's Courts and Primary Courts within the Province to the High Courtofthe
Province, without prejudice to the executing jurisdiction of the Court of Appeal. Vesting of this additional jurisdictionin
the High Court of each Province only brings justice nearer home to the citizen and reduces delay and cost of litigation:The
power of appointment of Judges of the High Court remains with the President and the power of nominating them totheseveral
High Courts remains with the Chief Justice. The appointment, transfer, dismissalcontinuetobevestedintheJudicial
Service Commission. Thus, the centre continues to be supreme in the judicial area and the Provincial Council hasnocontrol
over the judiciary functioning in the Province.
In our view no division of sovereignty or of legislative,executiveorjudicialpowerhasbeeneffectedbythe13th
Amendment Bill or by the Provincial Council Bill. The national government continues to belegallysupremeoverallother
levels or bodies. The Provincial Councils are merely subordinate bodies. Parliament has of parted with its supremacyorits
powers to the Provincial Councils.
In our view, the Republic of Sri Lanka will continue to be a Unitary State and the Bills in no way affect its unitariness.
The Petitioners further alleged that the sovereignty of the people, enshrined in Article 3 of the Constitutionisinfringed
by the provisions of the two Bills.
Article 3 states:
'In the Republic of Sri Lanka sovereigntyisinthePeopleandisinalienable.Sovereigntyincludesthepowersof
Government, fundamental rights and the franchise.'
This Article is an entrenched Article.
It was submitted that Article 4 which sets out how the sovereignty of the People is to be exercised,hastobereadwith
Article 3 as an integral part of Article 3, and as such is entrenched along with Article 3 by Article83.TheConstitution
expressly specifies the Articles which are entrenched, Article 4 is not one of those Articles.Thelegislativehistoryof
the 1978 Constitution shows that Article 4 was deliberately omitted from the list of entrenched articles. The reportofthe
Parliamentary Select Committee on the Revision of the Constitutionpublishedon22.6,1978disclosesthattheCommittee
recommended the entrenchment of Articles 1-4, 9, 10, 11, 30(2), 62(2) and 83 (para.9 of the Report). The Bill for therepeal
and replacement of the 1972 Constitution (published in the Gazetteof14.7.78)includedArticle4inthecategoryof
entrenched Articles. However, when the Bill was passed, Parliament omitted Article 4 from the list of entrenchedprovisions.
That omission must be presumed to have been deliberate, especially as Article 6, 7 and 8 were added to the list.
In our view, Article 4 sets out the agencies or instruments for the exercise of the sovereignty of thePeople,referredto
in the entrenched Article 3. It is always open to change the agency orinstrumentbyamendingArticle4,providedsuch
amendment has no prejudicial impact on the sovereignty of the People Article 4(a) prescribes that thelegislativepowerof
the People shall be exercised by Parliament, consisting of the elected representatives of the People and by the Peopleata
Referendum". Article 4(a) can be amended to provide for another legislative body consisting ofelectedrepresentatives,so
long as such amendment does not affect Articles 2 and 3.
Similarly, an amendment to Article 4(b) can be enacted by providing for the exercise of the executive power of the Peopleby
a President and a Vice President elected by the People. However, to the extent that a principle containedinArticle4is
contained or is a necessary corollary or concomitantofArticle3,aconstitutionalamendmentinconsistentwithsuch
principle will require a Referendum in terms of Article 83, not because Article 4 is entrenched, but because itmayimpinge
on Article 3. In our view, Article 4 is not independently entrenched but can be amended by a two third majority, since itis
only, complementary to Article 3, provided such amendment does not impinge on Article 3. So long as thesovereigntyofthe
People is preserved as required by article 3, the precise manner of the exercise of the sovereignty and the institutionsfor
such exercise are not". fundamental Article 4 does not define or demarcate the sovereignty of the People. It merelyprovides
one form and manner of exercise of that sovereignty. A changeintheinstitutionfortheexerciseof,legislativeor
executive power incidental to that sovereignty cannot ipso facto impinge on that sovereignty.
The 13th amendment provides for Provincial Councils having certain legislative power in respect of matters enumerated inthe
Provincial Council list and concurrent list, lists I and III in Ninth Schedule. We have on anexaminationoftherelevant
provisions of the 13th Amendment Bill, set out our reasons for. taking the view that the Provincial Councils do notexercise
sovereign legislative power and are only subsidiary bodies, exercising limited legislativepower,subordinatetothatof
Parliament. Parliament has not thereby abdicated or in any manner alienated its legislative power. It wascontendedbythe
Petitioners that even that small. measure of subsidiary legislative power vested in the Provincial Councils isforbiddenby
Article 76 (1) of the Constitution. It was stressed that the article prohibits Parliament setting up any authoritywithany
legislative power: However Article 76(3) provides that
"It shall not be a contravention of the provisions ofparagraph(1)ofthisarticleforParliamenttomakeanylaw
containing any provision empowering any person or body to make subordinate legislation for prescribed. purposes."
Hence delegated legislation is legal and permitted and does not involve any abandonment or abdicationoflegislativepower
in favour of any newly created legislative authority. No new legislative body armed withgenerallegislativeauthorityis
created when a new body is empowered to make subordinate legislation. Since the contemplated Provincial Councils in ourview
do not perform any sovereign legislative, function but are only empowered to enactlegislation,subordinateincharacter,
Parliament in creating them is not establishing another legislative body rival to it inanyrespect.Parliamentcanpass
legislation in the prescribed formandmannersupersedingtheProvincialCouncillegislationorevenrepealingthe
provisions creating them.
In our view, even if it be said that by the Bill, Parliament is seeking to set up Provincial Councils with legislativepower
in derogation of Article 76(1), since Article 4 is not an entrenched provision, theBillcanbepassedbyatwothird
majority without a Referendum. The Bill does not in any way affect the sovereignty of the People. Instead of thelegislative
and executive power of the People being concentrated in the hands of Parliament and President it is sought to bediversified
in terms of the Directive Principles of State Policies found in Article 27(4) oftheConstitution.Thisarticleprovides
"The State shall strengthen and broaden the democratic structure of government and the democratic rightsofthePeopleby
decentralising the administration and by affording all, possible opportunities to the People to participateateverylevel
in national life and in government."
Article 27(1) states that
"the Directive Principles of State Policies contained herein, shall guideParliament,thePresidentandtheCabinetof
Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society."
True the Principles of State Policy are not enforceable in a court of law but that shortcoming does notdetractfromtheir
value as projecting the aims and aspirations of a democratic government The Directive Principles requiretobeimplemented
by legislation. in our view, the two Bills represent steps in the direction of implementing the programmeenvisagedbythe
Constitution makers to build a social and democratic society.
Healthy democracy must, develop and adopt itself to changing circumstances. The activities of central government nowinclude
substantial powers and functions that should be exercised at a level closer to the People. Article 27 (4)hasinmindthe
aspirations of local people to participate in the governanceoftheirregions.TheBillsenvisageahandingoverof
responsibility for the domestic affairs of each province, within the framework of a united Sri Lanka.Theygivenewscope
for meeting the particular needs and desires of the people for each province. Decentralisation is a useful means ofensuring
that administration in the provinces is founded on an understanding of the needs and wishes of the respective provinces.The
creation of elected and administrative institutions with respect to each province that is what devolution meansgivesshape
to the devolutionary principle.
The concept of devolution is used to meanthedelegationofcentralgovernmentpowerswithouttherelinquishmentof
supremacy. Devolution may be legislative or administrative or both. It should be distinguishedfromdecentralisationwhich
is a method whereby some central government powers of decision making are exercised by officials ofthecentralgovernment
located in various regions. "Devolution of parts of the United Kingdom would not affect the unity of theUnitedKingdomor
the power of Parliament to legislate (even on devolved mattes) for all or any part of the United Kingdom,ortorepealor
amend the devolutionary arrangements themselves." Hood Philips Constitutional and Administrative Law6thEd.atpage716
Where legislative powers are devolved it would, bepossibletorestricttheuseOf,thosepowersbymakinguseof
Parliaments paramount power to legislate for the region. In Northern Ireland the principle of devolution hadbeenputinto
The 13th Amendment Bill defines those areas of activity where decisions, affect primarily persons living in the province.It
does not devolve powers over activities which affect people elsewhere or the well being of Sri Lankagenerally.Thepowers
that are conferred on the Provincial Councils are not at the expense of the benefits which flow from politicalandeconomic
unity of Sri Lanka Political unity means that Parliament, representing all the people,mustremain.sovereignovertheir
affairs and that the government of the day must bear the main responsibility to Parliament for protecting and furtheringthe
interests of all. Economic unity means that the Government must manage the nation's external economicrelationswithother
countries. The Government, must be able to control national taxation, total public expenditure and the supplyofmoneyand
credit and the Government must also keep the task of devising national policies to benefit particular partsofthecountry
and of distributing resources among them according to relative need. Resources are distributed not accordingtowherethey
come from but according to where theyareneeded.Thisappliesbetweengeographicalareasjustasmuchasbetween
individuals. Article 154R (5) mandates the Finance Commissiontoformulateprincipleswiththeobjectiveofachieving
balanced regional development in the country. The President is directed to cause every recommendationmadebytheFinance
Commission to be laid before Parliament and to notify Parliament as to the action taken.
In our view, the provisions of the Bills ensure that devolution does not damage the basic unity of Sri Lanka. Thescaleand
character of the devolved responsibilities will enable the People of the several provinces toparticipateinthenational
life. and government. The general effect of the new arrangement will be to place under provincialdemocraticsupervisiona
wide range of services run in the respective. provinces for the said provinces, without affectingthesovereignpowersof
Parliament and the Central Executive.
In our view the scheme of devolution set out in the Bills does not erode the sovereignty of the People and does not require
the approval of the People at a Referendum.
It was submitted that the Bills seek to amend the basic structure of the Constitution. The basis of the submissionwasthat
the clauses 4 and 7 of the 13th Constitutional Amendment Bill seek to establish a Constitutional structure whichisFederal
or quasi-Federal and these Provisions take away the Unitarianism enshrined in Article 2. In our considered view, there isno
foundation for the contention that the basic features of the Constitution have been alteredordestroyedbytheproposed
amendments. The Constitution will survive without any lossofidentitydespitetheamendment.Thebasicstructureor
framework of the Constitution will continue intact in its integrity. The unitary state will not be converted intoaFederal
or quasi-Federal State. We have already examined the question whether the amendment in any way affects entrenchedArticle2
which stipulates a unitary State and after an analysis of the relevant provisions of the amendingBill,havecometothe
conclusion that the unitary nature of the State is in no way affected by the proposed amendments and thatnonewsovereign
legislative body executive or judiciary is established by the amendment. The contra submission madebythepetitionersis
based on the misconception that devolution is a divisive force rather than an integrative force.
It was contended that the scope of amendment contemplated by Article 82 and 83 is limited and that therearecertainbasic
principles or features of the Constitution which can in no event be altered even by compliance with Article 83. Reliancewas
placed for this proposition on the decisions of the Supreme Court of India in Kesavananda v. State of Kerala,AIR1973.SC
1461 and Minerva Mills Ltd., v. Union of India AIR 1980, SC 1789. Those decisions of the Supreme Court ofIndiawerebased
on Article 368 of the unamended Indian Constitution which reads as follows:
"An amendment of this Constitution may be initiated only by the introduction of a Bill for the purposeineitherHouseof
The said section 368 carried no definition of "amendment" nor did it indicate its scope. It wasinthiscontextthatthe
Supreme Court in the Kesavananda case, reached the conclusion by a narrowmajorityofseventosixthatthepowerof
amendment under Article 368issubjecttoimpliedlimitationandParliamentcannotamendthoseprovisionsofthe
Constitution which affect the basic structure or framework of the Constitution. The argumentofthemajoritywasonthe
following line :-
"The word amendment postulates that the old Constitution survives withoutlossofitsidentitydespitethechangeand
continues even though it has been subjected to alterations. As a result of theamendmenttheoldConstitutioncannotbe
destroyed, and done away with it is retained though in the amended form. The words amendment oftheConstitutionwithall
their wide sweep and amplitude cannot have the effect of destroying and abrogating the basic structure-or frame workofthe
Constitution" per Khanna, J.,
But both our Constitutions of 1972 and 1978 specifically provide fortheamendmentorrepealofanyprovisionofthe
Constitution or for the repeal of the entire Constitution-Vide Article 51 of the 1972 ConstitutionandArticle82ofthe
1978 Constitution. In fact, Article 82(7) of the 1978 Constitution states"inthischapter"Amendment"includesrepeal,
alteration and addition." In view of this exhaustive explanation that amendment embraces repeal, in our Constitutionweare
of the view that it would not be proper to be guided by concepts of 'Amendment' found in the Indian judgments whichhadnot
to consider statutory definition of the word 'Amendment.' Fundamental principles or basic features of theConstitutionhave
to be found in some provision or provisions of the Constitution and iftheConstitutioncontemplatestherepealofany
provision or provisions of the entire Constitution, there is no basis for the contention that some provisions whichreflects
fundamental principles or incorporate basic features are immune fromamendment.Accordingly,wedonotagreewiththe
contention that some provisions of the Constitution: are unamnendable.
It was submitted that the proposed Article 154G(2) and (3) add, to the entrenched provisionscontainedinArticle83and
hence involve an amendment of Article 83 of the Constitution. There is noexpressamendmentofArticle83.Butitwas
contended that by providing in the proposed articles 154G(2) and(3)thatapprovalofthePeopleataReferendumis
necessary, for amendment or repeal of the provisions of Chapter XVIIA or for passing a Bill in respect of any matter setout
in the Provincial Council list, one is adding tothe,listofArticlesenumeratedinArticle83whichpostulatesa
Referendum for their amendment or repeal, one is thereby amending Article 83 of the Constitution. In our view Article 83had
to be entrenched, otherwise, by the simple process of amending Article 83 by a two-third majority, theentrenchmentofthe
several articles specified in it could be frustrated. The draftsman would otherwise have had to specifyseparatelyineach
case that the article is entrenched in the manner set out in Article 83. Thedraftsmaninsteadofdoingthathadshort
circuited by specifying all the Articles subject to the specific amendatory process in Article 83 and providing thatArticle
83 is entrenched. The rationale for entrenching Article. 83wastoensuretheentrenchmentofthearticlesspecified
therein. If the draftsman had not followed the short cut set out in Articles 83, but hadsetdowneachsucharticleand
followed each one with the entrenching clausethis argument that article 83 stands amendedconsequenttoArticle154G(2)
and (3) would have ex facie been untenable. The argument that Article 83 is impliedly amended consequent toArticle154G(2)
that have no basis.
In our view Article 82 is in no way added to or its scope enlarged by Article 154G(2) and (3). ThelatterArticlesinvolve
no amendment of Article 83 and are independent of Article 83 andoftheArticlesspecifiedtherein:Thedraftsmanhas
separately provided for the amendatory process of Article 154 G(2) and (3) andhadnotexpresslyamendedArticle83by
adding to the Articles specified therein. The draftsman has not therebyimpliedlyamendedArticle83.Inourviewthe
additional instances of entrenchment contemplated by Article 152 G(2) and (3) do not therefore infringe Article 83.
The rationale of Referendum is the acknowledgement of the sovereignty of, the People. Referendum is a methodby,whichthe
wishes of the People may be expressed with regard to the proposed legislation. The proposedArticle154G(2)and(3)by
stipulating a Referendum affirm, the sovereignty of the People. It will be a sterile exercise to ask the People whetherthey
are sovereign, that is the purpose which a Referendum to discover whether a Referendum to amend Article 154G (2). and (3)is
required, would serve. Here the draftsman has preempted the People by offering that Referendum onaplatter.Consideration
of the purpose of an enactment is always a legitimate part of the processofinterpretation.Thenatureandpurposeof
Article 83 repel the suggestion that the proposed articles 154G (2) and (3) amend Article 83 of the Constitution.
Mr. Eric Amerasinghe contended that there is no provision in the Bills tochallengetheviresorvalidityof"statute"
enacted by a Provincial Council. He submitted that while Article 121 providesanopportunitytoacitizentotestthe
validity of a Bill before it become law, enacted by Parliament, there is no corresponding provisionintheBillsforany
citizen to invoke the jurisdiction of the Supreme Court to determineanyquestionastowhetherany"Statute"orany
provision thereof, prior toitbeingenactedintoa'statute'byaProvincialCouncil,isinconsistentwiththe
Constitution. He argued that in that respect, a statute has an- advantage over and ismoreelevatedthanaParliamentary
Bill His submission overlooks Article 80(3) of the Constitution, which provides thatWhereaBillbecomeslawuponthe
certificate of the President or the Speaker, as the case may be, no court or tribunal shall inquireintopronounceupon-or
in any manner call in question the validity of such Act on anygroundwhatsoever."Thissub-articlegivesthesealof
finality to a law passed by Parliament. Such a law cannot be challenged on any ground whatsoever even ifitconflictswith
the provisions of the Constitution, even if it is not competent for Parliament to enact it by a simple majority or twothird
majority. On the other hand a statute passed by a Provincial Council does not enjoy any such immunity. It does nothavethe
attribute of finality and is always subject to review by court. The validity of a statute can always be canvassed in acourt
of law, even years after its passage. If it is ultra vires for a Provincial Council,toenactsuchastatute,itisa
nullity and is void ab initio. A 'statute' unlike a law which is proprio vigore valid, does not acquire such validity onits
That is why there is no Article corresponding to Article 121, in respect of a Provincial Bill before itisenactedintoa
statute. In our view, President Counsel's submission lacks merit and' cannot be sustained.
It was submitted by Counsel for the Y.M.B.A. that the Bills affect the entrenched Article 9 which provides that theRepublic
of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the dutyoftheStatetoprotectand
foster the Buddha Sasana while assuring to all religions the rights granted by Articles 10 and14(e).Ananalysisofthe
provisions of the Bill shows that the capacity of the Republic to perform its obligations under Article 9 remainsunimpaired
and that there is no ground for any reasonable apprehension as entertained by Counsel that the Provinces wilt be orableto
obstruct such performance. Counsel based his apprehension on the inclusion of the subject ancientandhistoricalmonuments
other than those declared- by or under law made by Parliament to be of national importance, in the Provincial list. It isto
be noted that the ReservedListreservesfortheStateNationalArchives,Archaeologicalactivitiesandsitesand
antiquities declared by or under any law made by Parliament to be of national importance. Thiswouldinclude,ancientand
historical. monuments and records and archaeological sites and remains declared by or under law made by Parliament tobeof
national importance. It is further to be noted that all subjects and functionsnotspecifiedintheProvinciallistor
concurrent list come within the Reserved List and that all residuary powers are vested in the State.Inthebackgroundof
the above provisions in the Bills, the fear expressed by Counsel is groundless. In ourview,theProvincialCouncilscan
place no impediment in the way of the State giving Buddhism the foremostplaceandprotectingandfosteringtheBuddha
Sasana in terms of Article 9 of the Constitution.
There was a lot of argument about the meaning and significance of the preamble to clause 4 viz:
"The provisions of this chapter shall not..........
The provisions of such other law shall mutatis mutandis apply."
In our view, this preamble generates uncertainities and confusion and serves no useful purpose. We suggest deletion of the
These two Bills titled "Thirteenth Amendment to the Constitution" and "The Provincial Councils Bill" have been ontheOrder
Paper of Parliament and our jurisdiction, in terms of Article. 121 (1) hasbeeninvokedbythePresidentonawritten
reference addressed to the Chief Justice, and by numerous petitioners.
In regard to the Bill described in the long title as -Thirteenth Amendment, to the Constitution,"theonlyquestionwhich
the Supreme Court may determine is whether such Bill requires approval by thePeopleofaReferendumbyvirtueofthe
provisions of Article 83. The Provincial Councils Bill isinterconnectedwithandconsequentialtotheaboveproposed
Thirteenth Amendment to the Constitution. It is not described in its long title as being for the amendment ofanyprovision
of the Constitution. Since the constitutionality of this Bill too is challenged in terms oftheconstitutionalprovisions,
we would have to determine whether any provision of the Bill too requires to be passed with the special majority requiredby
Article 84, or whether any provision of such Bill requires the approval by the PeopleataReferendumbyvirtueofthe
provisions of Article 83, or whether such Bill is required to comply withtheprovisionsofparagraphs(1)and(2)of
Before proceeding further, I thought that I should mention a matter relating to this judgment by wayofexplanationrather
than in extenuation. We can all agree with counsel who described this case as the most critical, the most importantandthe
most far-reaching that had ever arisen in the history of our courts.
Our Constitution enjoins that our determination should be communicated to the President and the Speakerwithinthreeweeks
of the making of the reference or the filing of the petition. Of these three weeks, time was given toallthepartieswho
are before us 49 petitions, some challenging the Bill, others supporting to file their writtensubmissions:Hearingsbegan
in open court on the 22nd of October and concluded on the 30th. We were, therefore, left with only sixdaystocometoa
conclusion, draft the order, and have it typed and ready for transmission. The petitioners themselveswerebarelyableto
open their case and develop it to their satisfaction.
In our ordinary day to day work, in cases of no great importance, we are accustomed to takefivetosixweeksafterthe
conclusion of the hearings to deliver our judgment. In a case of this magnitudeandimportance,thetimeallottedseems
therefore totally inadequate to attend to it as we would wish.
While I had no great difficulty in understanding the Written and oral submissions and comingtoaconclusionofwhichI
entertain no doubts whatsoever a longer time both for argument and decision would, Iamsure,havehelpedtoproducea
judgment containing a better, analysis, a better arrangement and a better phrasing, and supportedbyagreatervolumeof
material and authorities. However, as stated earlier, I am fully satisfied that the conclusions I have arrived atareright
and just in spite of constraints mentioned above. I regret only that I have been able to deal withthesalientpointsand
the brief time did not permit me to deal with a number of others of lesser importance whichinnormalcourse,wouldhave
been embodied in this determination.
I wish also to place on record our indebtedness to all counsel, both senior acid junior like Anil de Silva,andthepublic
spirited petitioners who appeared in person, for their great assistance in this most difficult task.Withoutthisvaluable
help it would have been no mean feat to have dealt with this matter on our own.
The main thrust of the attack on the Thirteenth Amendment is on the basis that it affects and seeks toalterthebasicor
fundamental structure of the Constitution, both in respect of its express provisions and those that are implied.Accordingly
it would be best if we first examine and analyse the provisions of the Constitution and thereafter matchtheprovisionsof
the impugned Bills with the constitutional provisions and find out in what manner and to what extent (if any) thegillsare
inconsistent with the Constitution.
Our Constitution contemplates three or even four types of situations in which the "constitutional" and legislativepowerof
the State can be exercised. First, the exercise of legislative power in the making of ordinarylegislation,thatisbya
simple majority. Second, the exercise of "the constituent" power for amendments of the Constitution in situations otherthan
those mentioned in Article 83, that is by a two-thirds or special majority. Third, the situations dealt withinArticle83
which require, in addition to the two-thirds majority, a Ref There could in theory be a fourth category even outsidetheam
provisions to which some reference will be-made later.
It would be sufficient. if I straightaway deal with the third category Article 83 states that
(a) Article 1, 2, 3, 6, 7, 8, 9, 10, 11 and 83, and
(b) Article 30(2) and Article 62(2)
Of the Constitution can only be amended by the special majority of 2/3 and the approval by the People at a Referendum.
Even a cursory glance would show that the above entrenched provisions constitute the heart or the core oftheConstitution.
Article 1 declares Sri Lanka to be a Free Sovereign, Independent and Democratic Socialist Republic Article2declaresthat
the Republic of Sri Lanka is a Unitary State. Article 3 declares that the Sovereignty of Sri Lanka is in thePeopleandis
inalienable and that this Sovereignty includes the powers of government, fundamental rights andthefranchise.Article4,
although not mentioned specifically in Article 83, is consequential to and an elaboration of article 3andspellsoutthe
concept of Sovereignty of the People and how it should be exercised. There is in Article 4 the laying down ofthestructure
of Government in the form of the three great departments of Government, namely,theLegislature,theExecutive,andthe
Judiciary. Article 4 spells out also the earlier reference in Article 3 both to fundamental rights and the franchise.
In spite of what Mr. Mark Fernando said, it must be emphasised that our Constitution, like the U.S. Constitutionandunlike
the Indian or the U.K. Constitutions, vests Sovereignty in the People and the organs of Government holdamandateandare
agents of the People. In our Constitution the People have given themselves a Constitution and it is unthinkable thereforeas
a general proposition that this Sovereignty, which means theSovereigntyofthe,countryanditsunitarynature,the
democratic form of government, their right of franchise, their fundamental rights, and the judicialpowerprotectingthem,
can be amended without the consent of the People. The requirement that in certain matters the approval ofthePeopleata
Referendum Would be necessary for the amendment of the Constitution provides the protection for those rights.
Interpreting the corresponding amending provision (Article 368) of the Indian Constitution,theIndianSupremeCourthas
come to a similar conclusion. The effect of the ruling in Golak Nath's Case, AIR1961SC1643 KesavandaBahrati'sCase
(Fundamental Rights Case), AIR 1973 SC 1461and Mrs. Indira Gandhi's Case (Election case), AIR1975SC2299,istothe
effect that the amending power contained in Article of 368 does not extend to altering the basic structureorFrameworkof
In Kesavanada's Case the Supreme Court sought to explain and illustrate what they thought were the amendments or features
that would constitute the basic structure of the Constitution Sikri, C.J, referred to :
(1) the supremacy of the Constitution
(2) the republication and democratic form of Government
(3) the secular character of the Constitution
(4) the separation of powersand
(5) the federal character of the Constitution.
Shelat J. Grover J added:
(6) the mandate to build a welfare state contained in the Directive principlesand
(7) the integrity of the nation .
Milkerje and Hedge JJ thought it include-
(8) the sovereignty of India
(9) the unity of the countryand
(10) the essential features of the individual freedoms.
Jaganmohan Reddy J, included-
(11) parlimentary democracy and
(12) the three organs of State.
On comparison one cannot but regard the section enumerated in Article 83(a) and (b) of our Constitution as also entrenching
the basic features of our Constitution. They include, if not all the matters enumerated in the India decision, at least
nearly all of them. But that is not all.
It is sometimes contended that Article 4 is hot an entrenched provision. It is certainly not one oftheArticlesspecified
in the entrenching Article 83. Are there other Articles either because they are inextricablyconnectedwiththespecified
Articles, or because they themselves must be considered as being basic to the structure of the Constitution that areequally
entrenched? These are the questions posed in this case, some of which are undoubtedly covered by previousrulingsgivenby
A few examples should clear up this issue. The office of President is not mentioned in Articles 1, 2 or 3.Itismentioned
in Article 4 (b). Could it be said that the office of President is not entrenched? The officeofPresidentisthechosen
mode for the Executive power of the People and is a fundamental feature oftheConstitution.Thereisinternalmaterial
corroborating this. Article 83, the entrenching Article, specifically refers to Article 30 (2). Article30(2)dealswith
the election and term of office of the President. Such an entrenching provision postulates the existenceoftheofficeof
President. This is precisely what is set out in Article 4 (b).
Likewise the Legislature is not specifically mentioned in the entrenching Article. Here again the Legislature is part ofthe
basic structure of the Constitution and is the chosen instrument for the exercise of the LegislativepowerofthePeople.
Even the exercise of the Executive power is made dependent on it. Article 83 (b), the entrenching Article,howevermentions
Article 62(2). This Article prescribes the length of the life of Parliament, namely, six years and no more. Thispresupposes
parliamentary rule. The necessity for the Referendum in 1983wastoby-passthisprovisionbyadoptingthealternate
procedure of Referendum. Both procedures involved going before the People.
Then there is the Judicial power. It is nowhere mentioned specifically in Articles 1, 2, 3, or 83. But canitbeseriously
argued that the Judicial power is not a basic feature of the Constitution? A system of courts with the Supreme Courtatthe
apex, the Court of Appeal and other courts andtribunalsareabsolutelynecessaryfortheproperfunctioningofthe
Constitution and for the due administration of justice. The Judicial power however is mentioned in Article 4.(c),butone
has to look even beyond it to other provisions to ascertainitstruenatureandcontent.Forexample,theprovisions
relating to theindependence of the judiciary,thesubject'srighttochallengeproposedlegislation,hisrightto
vindicate his fundamental rights and to have his disputes litigated in the courts are essential features of this power.
As a matter of fact it is known why the reference to Article 4 which was in-the original draft was removedfromArticle83
The concept of fundamental rights, the franchise etc., have extensive features and implications. Some of thosefeaturesare
absolutely essential for the right, but others may well be regarded as being inessential. There was a justifiable fearamong
those who framed the Constitution that such an inclusion could lead to problems, particularly asregardstheamendmentof
the inessential provisions. But really those fears were groundless. Courtshavehadlongexperienceandarefrequently
called upon in matters before them to decide such issues and of drawing the line between whatmaybeconsideredessential
and what are inessential, and as to when a difference in quality may amount to a difference in kind.
This court has in fact ruled in a series of cases that Article 4 had to be read along with Article 3.Videourrulingsin
SD.5/78, Sd.4/80. SD.5/80, SD. 1/82, SD,2/83, SD. 1/84. I think it is too late in the day to: argue. that this is not soand
even Mr. Fernando was not able to distinguish these cases. The question as to the extent oftheapplicationofArticle4
however could be raised, still, in any particular matter. It is not only Article 4 that we have often linked with Article3,
but by the same token our rulings would cover any Article in the Constitution which the court considers as being linkedwith
any of the entrenched Articles. so as to constitute a basic feature, of the Constitution.
There are sufficient guidelines in the wording of the Constitution itself to assist a court in thistask.ThePreambleto
the Constitution declares the representatives of the People were elected
"to constitute SRI LANKA into a DEMOCRATIC SOCIALIST REPUBLIC,whilstratifyingtheimmutablerepublicanprinciplesof
REPRESENTATIVE DEMOCRACY, and assuringtoallpeoplesFREEDOM,EQUALITY,JUSTICE,FUNDAMENTALHUMANRIGHTSandthe
INDEPENDENCE OF THE JUDICIARY as the intangible heritage that Qua tees the dignity and well being ofsucceedinggenerations
of the People of SRI LANKA and of all the people of the World, who cometosharewiththosegenerationstheeffortof
working for the creation and preservation of a JUST AND FREE SOCIETY."
Again, I said earlier Article 4 spells out the concept in Article 3 the Sovereignty ofthePeopleisorganisedintothe
three great departments of Government-namely, the Legislature the Executive and the Judiciary. FundamentalRightsisagain
referred to in Article 4.(d). but its substantive provisions lie elsewhere. The franchise is also referred toinArticle4
(e), but there are numerous provisions elsewhere relating to the franchise.
Faced with the similar issue, the Indian courts have taken the view that to determine whether or not aparticularprovision
is linked with one specifically mentioned and goes to constitute thebasicstructureoftheConstitution,itwouldbe
necessary to examine such provision in the scheme of the Constitution, its object and purpose, andtheconsequenceofits
repeal or amendment on the integrity of the Constitution.
Applying this test in regard to fundamental rights, could we say that a free and democratic government canfunctionifthe
fundamental rights of freedom of speech and expression, the freedom of association, equality before the law, and thefreedom
from unlawful arrest and detention are taken away? In this connection it should be notedthatfundamentalrightsandthe
franchise are specifically mentioned in Article 3 without any limitation. The specific mention in Articles 83 ofArticle10
and 11 relating to freedom of conscience and freedom from torture isexplicableonthebasisthattheyareconsidered
absolute rights which Cannot be restricted even in the interests ofnationalsecurity.Theprotectionwascarriedover
specifically to Article 83. This does not mean that the other fundamental rights are excluded. However they would have tobe
examined individually and included only if they are considered by court as being essential features of theConstitutionand
not inessential and peripheral features.
Our Constitution is an adaptation of the Presidential type of Government incorporating the Westminster model oftheCabinet
system and parliamentarialism of which we have hadtongexperience.WehavesuperimposedontheWestminstertypeof
Constitution an elected Executive President who holds office for a continuous period of six years "immune to changesinthe
Cabinet or the voting in Parliament. This is to ensure the stability of the Government. But unlike theWestminstertypeof
Constitutions or even the Indian Constitution, our republican Constitution, as stated earlier, is a creationofthePeople
in whom Sovereignty is vested. This Sovereignty is exercised by the three, organs of State, including thePresidentinthe
name of the People on their mandate and as their agent. The President and the Legislature must therefore hold that powerand
exercise it strictly in accordance with the provisions of the Constitution. Article 4, which spells outtheSovereigntyof
the People, is worded as follows:
"4. The Sovereignty of the People shall be exercised and enjoyed in the following manner
(a) the legislative power of the People shall be exercised by Parliament,consistingofselectedrepresentativesofthe
People and by the People at a Referendum
(b) the executive power of the People, including the defence of Sri Lanka, shallbeexercisedbythePresidentof,the
Republic elected by the People
(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions createdand
established, or recognised, by the Constitution, or created and established by law, except in regard to mattersrelatingto
the privileges, immunities and powers of Parliament and of its Members, wherein the judicialpowerofthePeoplemaybe
exercised directly by Parliament according to law
(d) the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advancedby
all the organs of government, and shall not be abridged, restrictedordenied,saveinthemannerandtotheextent
(e) the franchise shall be exercisable at the election of the President of the Republic and oftheMembersofParliament,
and at every Referendum by every citizen who has attained the age of eighteen yeas and who, being qualified to be anelector
as hereinafter provided has his name entered in the register of electors."
The President is the Head of the State, the Head of, the Executive and of the Government, and the Commander-in-Chiefofthe
Armed Forces. Article 4 (b) states that the executive power of the People, including thedefenceofSriLanka,shallbe
exercised by the President. As Head of State, he is vested with both ceremonial and executive functions. In addition, asthe
Head of the Executive and of the Government, he combines certain active functions of office. He is also actively involvedin
the Parliamentary process. Article 42 makes the President responsible to Parliament for the discharge of his duties.
Further, the Constitution in Chapter Vlll requires that "there shall be a Cabinet of Ministerschargedwiththedirection
and control of the Government of the Republic, whichshallbecollectivelyresponsibleandanswerabletoParliament."
(Article 43 (1)). Article 43 (2) states that "the President shall be a member of the Cabinet of Ministers, and shallbethe
Head of the Cabinet of Ministers. " In this regard the President has the power of thePrimeMinisterunderaWestminster
type of Constitution. He appoints both the Prime Minister and the other Ministers. He assignssubjectsandfunctions.The
President can assign to himself any subject or function and remain in charge of any subject or function not assigned.
It is quite clear from the above provisions that the Cabinet of Ministers ofwhichthePresidentisacomponentisan
intergral part of the mechanism of government and the distribution of the Executive power and any attempt to by-passitand
exercise Executive powers without the valve and conduit of the Cabinet would be contrary tothefundamentalmechanismand
design of the Constitution. It could even be said that the exercise of Executive power by the President issubjecttothis
condition. The People have also decreed in the Constitution that the Executive power can be distributed to theotherpublic
officers only via the medium and mechanism of the Cabinet system. This follows from the pattern of our Constitutionmodelled
on the previous Constitution, which is a Parliamentary democracy with a Cabinet system. The provisionsoftheConstitution
amply indicate that there cannot be a government without a Cabinet.TheCabinetcontinuestofunctionevenduringthe
interregnum after Parliament is dissolved, until a new Parliament is summoned. To take any otherviewistosanctionthe
possibility of establishing a dictatorship in our country, with a one man rule.
Turning to the Legislative power of the People, the Constitution has prescribed that it should be exercised byaParliament
consisting of elected representatives of the People. It should be noted that Parliament itself is anagentofthePeople.
When questions on fundamental matters such as the Sovereignty, the extent of legislative power, the power ofamendmentetc.
arise, there has been a divergence in approach among judges of countries having the U. K. typeofConstitutionasagainst
the American type of Constitution. The governing factor in this issue appears to be the identification of the sourceofthe
Sovereign power of the State. Where the mandate theory or the principle of agency applies, courts have tendedtolimitthe
powers and jurisdiction of the organs of, government and deny them plenary powers unlike in the other typeofcase.Itis
interesting to find that Indian judges and lawyers have often indiscriminately relied on decisionsfrombothjurisdictions
without having regard to this significant difference in fundamentalprinciplesinthetwotypesofConstitutions.For
example, Seervai in his work "Constitutional law of India (3rd Edn.) at page 1849 makes the following observation :-
6 "Equally, the theory that the legislature is a delegate of the people has noapplicationtoourConstitution.Nosuch
theory applied to the legislatures under the G.I.Act,35,andthebasicdistributionoflegislativepowersbetween
Parliament and the State legislatures has been taken over by our Constitution from the G. 1. Act, 35,withalterationsnot
material to the present argument. In any event, as we have seen, the doctrine ofagencycanhavenoapplicationtothe
members of a legislature. It is not surprising, therefore, that our Constitution contains no provision correspondingtothe
10th Amendment to the U. S. Constitution. Therefore a resort to American decisions is not helpful because they arebasedon
postulates which are inapplicable to and are repudiated by, our Constitution "
The provisions in our law relating to the content and limitations of the Legislative power ofthePeopleiscontainedin
Articles 75 and 76 of the Constitution. Article 75 appears at first blush to be plenary. It vests in Parliament the powerto
make laws including retrospective legislation. It empowers the repealing or amendingofanylawincludingthoseofthe
Constitution or adding any provision thereto.
An examination of the proviso to Article 75 and Article 76 will at once show that there is aninherentlimitationonthis
power and the power is not plenary. In this connectionImeanArticle76(1)andtheprovisotoArticle75.These
limitations are not merely a procedural bar to legislation, but they appear to denude Parliamentoflegislativepowerand
make this a field which Parliament is incompetent and incapable of entering. This does not appear to be theonlylimitation
on the legislative power of Parliament. Vide also the provisions of Articles 26.(4), 36.(2) and 93. If this view iscorrect,
this would mean that whatever be the extent of the amending power, the relevantpartsofArticles75and76cannotbe
amended or repealed under the amending power.
Now Article 76. (1) states that Parliament shall not abdicate or in any manner alienate its legislative power andshallnot
set up any authority with any legislative powers. In legal parlance alienate" means any type of dealing or disposal.Inthe
present context it necessarily means the transfer of its legislative power whether whole or partial in any manner. Itcannot
mean anything else. The only exception to this is the power given to the President to make emergencylegislation,whichis
itself made subject to sufficient control and supervision of the Legislature. While this exception allows regulationshaving
the force of law to be made it is a power strictlyandcontinuouslycontrolledandmonitoredbyParliamentandwhich
Parliament can recall at will. It is also necessitated by the highest interest, namely for the protection of the Stateina
time of emergency. Article 76 (3) states that the making of subordinate legislation wouldnotbeacontraventionofthe
provisions of Article 76 (1) relating to the abdication and alienation of the legislative power.
The terminology describing such subordinate legislation is immaterial. They are called by various names such asregulations,
by-laws, orders, statutes, etc., but the onecharacteristicaboutthemisthattheyarenotandcannotbeprimary
legislation, which only Parliament can enact. They cannot over-ride primary legislation, but they can be over-ridden bysuch
legislation: If the impugned proposed legislation, is in reality of the character of subordinate legislation, then thiscase
would present no problems for us.
It is submitted by the propounders of the Bill that the Statutes made by the ProvincialCouncilsareinfactsubordinate
legislation, but Mr. Fernando said that they are of a higher quality than by-laws. But what is strange is thatatthesame
time they submit that all those provisions that give a parity to suchStatuteswithlawspassedbyParliamentandthe
entrenchment of such Law-making power are consistent with that position.
The view that Statutes made by Provincial Councils constitute subordinate legislation relies mainly, if not solely,onU.K.
authorities. Therefore, it is necessary to compare the legal position in Sri Lanka with thoseofU.K.andotherrelevant
countries to see the validity of that, argument.
In regard to the 'delegation' of legislative power, the U.S. hasadoptedoneapproachandtheU.K.andtheDominions
another. The U.S. view is founded on the theory of mandate which also applies to us andoftheseparationofpowersThe
position in the U.K. and Dominions is wholly different. While at timestheU.S.courtsstruckdownalldelegationsof
legislative power, the current view is that delegation would be permissible where policies and standards have beenindicated
by the Legislature. The U.S. courts are still inclined to strikedowndelegationswhicharefoundtobe"uncanalised,
Uncontrolled and vagrant".
In India, in some of the earlier cases, the Supreme Court inclined towards the principles laid downintheAmericancases
that delegation legislative power was impermissible. In re Delhi Laws Act, A.I.R. 195:1 S.C.332,theSupremeCourtheld
that the essential powers of legislation cannot be Negated. Both in the above case and in Rajanarainsingh v. Chairman,Patna
Administration Committee, (1955) 1 S.C.R. 290, the Supreme Court has held that the legislaturecannotdelegatetoanother
authority the declaration of policy and the laying down of standards or the power to repeal legislation. Thesefeaturesare
considered essential characteristics of legislative powers and are non delegable. There has been however aslightshiftin
view in recent times as shown in later decisions such as S. B. Dayal VUP, A.I.R. 1972 S.C. 1168, and N. K. Papiahv.Excise
Commissioner, A.I.R. 1975 S.C. 1007. In the lattercase,inadoptingalittlemoreliberalstand,thecourtplaced
particular stress on the provisions for effective Parliamentary control including the power ofrepeal,whichwasprovided
for in the impunged legislation. Commenting on this trend, Seervai in his latest edition at page 880 says :-
"With Papiah's Case, the return of the Supreme Court to the Privy Council view is complete for it adoptstheviewforcibly
expressed in Hodge v. R. that a ,legislature entrusting important regulations to agents does not effaceitselforabdicate
its legislative power. The legislature retains its power intact and can whenever it pleases, destroy it has createdandset
up another, or take the matter directly into its own hands by exercising its undoubted powertorepeal,amendorvarya
If we are to apply the principles applicable in the U. K. or even as laid down in a modified way by the Indian SupremeCourt
these decisions being clearly applicable to our situation then even with reference to Lists Nos. I and III,anylegislation
made by a Provincial Council could be struck down for lack of policy and guidelines.Thesubmissionthatthisresultis
avoided by reason of Parliament retaining the power to legislate on National Policy is misconceived.Thefactisthat37
items with their sub-divisions have been allocated to Provincial Councils to legislate without providinganyguidelinesof
Mr. Fernando relied on the first heading in List II "National Policy on all subjects and functions and saidthatParliament
has reserved to itself the right to lay down National Policy onanymatter.Thishesays,meetsthechargethatthe
delegated items in the Provincial List contain no guidelines. At one stage there was a discussion as towhetherthematter
referred to above is an item or a heading.
First let it be understood clearly that this item assuming it is such permitsonlylayingdownNationalPolicyandnot
legislating on the subject concerned as such. It is very difficult to contemplate how effective this provisionwouldbein
Let us take an example. There is item 29.1 relating to theatres,dramaticperformances,exhibitionoffilmsandpublic
performances. Suppose the Provincial Council snakes a law which is unpalatable to the Government and the Government wantsto
lay down a policy on the matter. Suppose such a policy statement is enacted. What is the effect ofit?SinceArticle154G
(6) would not apply to such a case-it applies only to the Concurrent List the policyenactmentwouldhavenoeffect.It
would be so in every case.
Further, 1 do not think that a declaration of policy after the Provincial Council had enacted a Provincial statute can goto
cure the illegality of the delegated law which was permissible at the time of enactment.
In the U.K., which enjoys the supremacy of Parliament, the courts allow what is described as"conditionallegislation.One
of the leading cases enunciating this principle is hex v. Burah,  3 A.C. 829. In thiscasetheGovernor-General,in
the exercise of powers vested in by section 8, Garo Mills Act (which had been dulypassedbytheGovernor-Generalin
Council), extended the Act to another district.
When action was taken under the extended law, it was challenged as ultra vices, and as an improper delegation of legislative
power. The Privy Council held-
(1) that the Act had been passed in the due and ordinary course of legislation. -
(2) the Indian Legislator which passed the Act had plenary powers and was in no sense an agent or delegateoftheImperial
(3) In enacting that Act "the proper legislature has exercised its judgment as to place, person, laws, powers and theresult
of that judgment has been to legislate conditionally as to all thosethings.Theconditionshavingbeenfulfilled,the
legislation is now complete.
But that is the furthest the U.K. courts have gone. In retheinitiativeandReferendumActA.C.935,anAct
contained machinery for making laws. It provided, inter alia, that alternate to the normal procedure wheretheLt.-Governor
enacted legislation, a law can be submitted to the voters and it would come intooperationontheirapproval.ThePrivy
Council held that this machinery was in effect the setting up of a different legislative apparatus than that provided bythe
Constitution. In distinguishing this case from a case of delegation, the Privy Council observed.
"It was argued. . . that a Legislature committing important regulations to agents or delegates effaced itself.Thatisnot
so. It retains its powers-intact and can, whenever it pleases, destroy the agency it has created and set up anotherortake
the matter directly into its own-hands."
Hodge v. Rex,  9 A.C. 117
Cobb v. Kropp,  1 A.C. 141.
Those who support the Bills have relied heavily on the U.K. law and U.K. precedents. They however have littlerelevanceto,
our situation. Shukla, a well known writer on the Indian Constitution, in his work has contrasted theU.K.andtheIndian
positions in this regard. About the U.K. he states at page 456
"In England, on the, other hand, there is no written Constitution circumscribing the powers of Parliament, which in theeyes
of law is sovereign. The British Constitution has entrusted to the two Houses of Parliament, subject totheassentofthe
King, an absolutepower untrammelled by any written instrument obedience to which may be compelled bysomejudicialbody.
'Parliament may accordingly delegate to any extent its powers' of law-making to an outside authority. Asamatteroflaw,
Parliament may surrender all its power in favour of another body as it actually did in 1807 whentheEnglishandScottish
Parliament passed Acts of Union providing for the coming into existence of a newbody,ParliamentofGreatBritain.The
limits of delegated legislation in the English Constitution, if there are to be any, must, therefore, remainaquestionof
policy and not a justiciable issue for the courts.'
This is sufficient to dispose of the Attorney-General's arguments where he reliedstronglyondevelopmentsintheU.K.,
particularly Scotland and Wales. He particularly stressed the case of Northern Ireland and its Act of 1920 which, asfaras
I am aware has hardly ever figured in formulating these Bills.
Even if Hodge's Case applies to our situation,coulditseriouslybesaidthatinrelationtoProvincialCouncils,
Parliament has retained its powers intact and "whenever it please" it can withdraw the delegatedpower?Factuallyspeaking
even the President has said recently that under the proportionate representation scheme, no political party would be ableto
secure anything more than a 'bare majority in the future.
What is described as conditionalorcontingentlegislationisincludedinthecategoryofsubordinatelegislation.
Conditional or contingent legislation is described as "a statute that provides control but specifies that it is to comeinto
effect only when a given administrative authority finds the existence of conditions defined in thestatute".Thisisbest
illustrated in the case of Field v. Clark, 143 U.S. 649 where the President was authorised byproclamationtosuspendthe
operation of an Act duly passed by Congress which permitted free introduction into the U.S.ofcertainproductsuponhis
finding that the duties imposed upon the products of the U.S. were reciprocally unequal and unreasonable. TheSupremeCourt
held the Proclamation valid on the ground that the President was the mere agent ofCongresstoascertainandeclarethe
contingency upon which the will of Congress was to act was not legislative in character.Itquotedwithapprovalofthe
following dicta in Looke's Appeal, 72 Pa. 491, which the Court said enunciated the correct principle
"The Legislature cannot delegate its power to make a lawbut it can make a law to delegate a power todeterminesomefact
or state of things upon which the law intends to make its own action depend."
There appears to be a clear distinction between conditional legislationand"delegation".Explainingthisdifferencein
terminology, Seervai at page 1848 says:
"Counsel and judges in the courts below had spoken of the powers so conferred, as involving a.'delegation'oflegislative
power counsel arguing before the Privy Council had spoken likewise. ThePrivyCouncilhoweverconsistentlyupheldthese
powers as 'conditional' legislation or spoke of the delegation of'so-calledlegislativepowers'.KaniaC.J.strongly
emphasized this fact to show that the Privy Council did not uphold the 'delegation' of legislative power. It is difficultto
believe that judges and counsel spoke onelanguageandthe,PrivyCouncilspokeanother.Itissubmittedthatthe
explanation lies in the fact that the word 'delegation' has more than one meaning and the Privy Council did not indicatethe
sense in which it used the word 'delegation'. However, in R. v. Sibnath Banerji Lord Thankerton, in another context,defined
the word 'delegation' in the strict sense of the word, and that definition explains why the Privy Council consistentlyspoke
of 'conditional' and not-'delegated' legislation. He said:
Their Lordships would also add, on this contention, that sub-s. (5) of s.2 (of the DefenceofIndiaAct,1939)providesa
means of delegation in the strict sense of the word, namely a transfer of the power ordutytotheofficerorauthority
defined in the sub-section, with a corresponding divestiture of the Governor of any responsibilityinthematter,whereas
under s.49, sub-s. (1), of the (G.I.) Act of 1935 the Governor remains responsible for the action of hissubordinatestaken
in his name"
This would explain why the word "delegate' in the collation of words may not abdicate, delegate or inanymanneralienate"
in Article 45. (1) of the 1972 Republican Constitution was not retained in Article 6(1)ofthepresentConstitution.Mr.
Fernando and Dr. Jayewardene argued that the deletion of the word "delegate" has now resulted inconfiningtheprohibition
to abdication and alienation only. On the contrary the presence of the word "delegate" would have given roomtocounselto
argue that even the stricter, type of delegation was permissible and I think it was rightly removed in the present context.
Finally on this matter it is necessary to dispose of another of Mr. Fernando's submissions. Mr. Fernando submittedthatthe
Bill does not contain an unlawful delegation of legislative power to Provincial Councils and the provisions in theBillare
consistent with Article 76(3). It was based on an argument that took us back inconstitutionalhistorytotheRepublican
Constitutions of 1972 and even to the Soulbury Constitution.
It was his contention that the present Democratic Socialist Constitution is a directsuccessorandheiroftheprevious
Socialist Democratic Constitution of 1972. That the legislative power Parliament enjoys now is identicalwiththatofthe
previous Constitutions becausethepresentConstitutionwasenactedundertheamendingprovisionsoftheprevious
Constitutions. He also said that the legislative powers of the two legislations were the same and thereisnoroomfora
concept of "constituent" power to be brought in when interpreting t66 new Constitution.
If I remember right, Mr. Fernando even said that a "legislative judgment" would be permissible under theseprovisions.Such
an interpretation would be reactionary and would mean going back not merely two decades to a Constitution which thiscountry
rejected but to the precolonial days and to the sixteenth century "to which he had gone in search of authority.
Although the present Constitution wasenactedtakingadvantageofaprocedureinthe1972Constitution,whichwas
specifically repealed, the present Constitution is a new one and has brought about radicalchanges.Itisunnecessaryto
enumerate the great improvements thathavebeenintroduced,butonefactthatneedsemphasisisthatthepresent
Constitution is intended to be firmly rooted in the will of the People and the power of the organs ofGovernmentflowfrom
the People and the organs are agents of the People and hold their mandate. In the written submissions this positionasbeen
conceded. See also the resounding and unequivocal declaration of the Preamble.
Another erroneous view stemming from this is his contention that fetters on the amending power ofParliamentarefoundin
federal constitutions and not in unitary ones. If he is having in mind the U. K. "Constitution" as compared withtheIndian
Constitution, such a difference could be found. But the difference does not lie in one being unitary and theotherfederal
but in one being rigid and the other flexible. The English cases interpreting thewrittenConstitutionsofDominionsand
States show that this is the governing factor and not the one suggested by Mr. Fernando.
Mr. Fernando has supported, his submissions by decisions of the old Constitutional Court interpreting the 1972Constitution.
They could have no application to the problem before us, and further Ihaveshownearlierwhytheword'delegate'was
omitted from the present Constitution in Article 76.
I have also shown earlier that the bringing intooperationbyasubordinateauthorityofalawmadebytheproper
legislature in prescribing a date for the cessation of operation does not involve theexercise.oflegislativepower.It
only involves the determination of a fact or state of things upon which the law will come into operation orcease.Thisis
the true effect of-the provisions of clauses (a) and (b) of Article 76. These powers are subordinate in nature and cannotbe
used as examples of the true legislative power which has been delegated to the State.
This seems also to be a convenient place to deal with a connected submission made by Mr. Fernando. He stated withparticular
reference to the provisions of, Article 154G(2) and (3) that once the legislative power is referred back tothePeoplethe
source there could be, no invalidity because it would really bean enlargement and the strengthening of the People's power.I
have said earlier that this is fallacious and arises fromafailuretounderstandthebasicprinciplesthatunderlie
constituent and legislative powers and the power of amendment, the limitations of manner and form in a Constitution thathas
Now I come back to Article 76. It enjoins that Parliament shall not make any law in respect of the following:-
(1) Abdication of its legislative power
(2) In any manner alienate its legislative power
(3) Set up any authority with any legislative power.
Having regard to the wording of Article 76(1)-and there is a similar concept elsewhere (vide proviso toArticle75)itis
possible to argue, (and it was touched upon but not developed), that these provisos go to the very competence ofParliament.
It is a limitation on the legislative power marking out its range and extent. If thispositioniscorrectnolegislation
even by a two-thirds majority and a Referendum can cure this lack of capacity.
This seems also a convenient point to deal with another submission that was mentioned in the course of thehearing,namely,
that since Article 4(a) states that the legislative power of the People shall be exercised by the Legislature and thePeople
and any law that would provide for a Referendum would not violate the constitutional provisions, since Sovereignty is inthe
People and an appeal to the People can never derogate from that Sovereignty. As it was said in the courseoftheargument,
the People as a rabble cannot exercise the legislative power of the People. It must be the People at aReferendumfollowing
the proper constitutional procedure. Such a Referendum must arise from a situation where the constitutionalprocedureshave
been, faithfully followed and not in spite of them. Where there are violations of the Constitution, it is no argument tosay
that all that would be covered by reason of a provision for a Referendum. Such a misconceptionisduetothefailureto
distinguish clearly between the original constitutional power, the amending power and the power of ordinary legislation,and
the form and manner of exercising legislativepower.InarigidConstitutionthecompositionofParliamentandthe
procedures must be distinguished from the area power. "The law existing for the time being is supreme when it prescribesthe
condition which must be fulfilled to make a law But on the question what may be done by a law so made, Parliament issupreme
over the law."
It is amply shown in the present case that Provincial Councils
(a) makes statutes which enjoy at the least parity with laws made by Parliament
(b) can enact statutes that can suspend and render inoperative laws made by Parliament
(c) have plenary power to make statutes in respect of the items in List in respect of matters in the Provincial List
(d) have a Concurrent List with Parliament and are placed on terms of equality: and that
(e) the Thirteenth Amendment which provides for this arrangement and the lists distributing the legislative power is sought
to be entrenched: and that.
(f) Parliament has disabled itself by placing fetters upon itself in the exercise of legislative power and in particular has
provided the need for a two-thirds majority and a Referendum to enact legislation.