Legal Services and Laws of Sri Lanka


SLR-1996 Vol.1-P238

SLR - 1996 Vol.1, Page No - 238

ATUKORALE

v.

ATTORNEY GENERAL
SUPREME COURT

G.P.S de SILVA, C.J.

KULATUNGA, J. AND

RAMANATHAN, J.

S.C. (S. D) NO. 2 of 1995.

28 DECEMBER, 1995.

Constitutional Law-Bill to amend Pradeshiya Sabhas Act - Power to vary limits of and number ofmembersofanddissolvea
Pradeshiya Sabha -Constitution - Articles 3, 4 (e) and 12 (1) - Citizen's Petition.

Article 3 of the Constitution vests sovereignty in the people and proceeds to enlarge the concept ofsovereigntybyadding
to it fundamental rights and the franchise. But by Article 4(e) oftheConstitution,theParliamentinprescribingthe
manner of exercising the franchise has limited the franchise to itsexerciseattheelectionofthePresidentofthe
Republic, members of Parliament and at every Referendum by every citizen who has attained theageof18yearsandbeing
qualified to be an elector has his name entered in the register of electors. It does not cover exercise of thefranchiseat
elections to Pradeshiya Sabhawas. If Parliament desires expansion of Article 4(e) by including the franchiseexercisableat
elections not specified therein, it can be appropriately amended but it issignificantthatnosuchamendmenthasbeen
effected. Hence the proposed amendment is not inconsistent with Article 3 of the Constitution. Accordingly the Bill willnot
require approval by the People at a Referendum.

(2) In enacting legislation Parliament is bound to ensure equality before thelawandequalprotectionofthelawfor
persons or classes of persons who are similarly circumstanced. The proposed legislation did not carry appropriateguidelines
for the exercise of the powers of the Minister and the absence of appropriate guidelines would result indiscriminationand
thereby deprive the persons affected, equaly before the law and equal protection of the law. Hencetheimpugnedclauseis
inconsistent with Article 12(1) and it can only be passed with the special majority required underparagraph2ofArticle
84. If the impugned clause (2) of the Bill is amended as specified at paragraphs A, B and C (of thedetermination)itwill
cease to be inconsistent with Article 12(1) of the Constitution.
Cases referred to:
1. Minister of Home Affairs v. Fisher (1979) 3 All ER 21 (PC).
2. Re The Thirteenth Amendment to the Constitution (1987) 2 Sri L. R. 324.
PETITION under Article 121(1) of the Constitution against Bill to amend the Pradeshiya Sabhas Act.
K. N. Choksy PC with Daya Pelpola, D. H. N. Jayamaha, Luxman Perera, A. L.B.BritoMutunayagamandAnilRajapaksefor
Petitioner.
Shibley Aziz PC Attorney-General with S. Sri Skandarajah S.S.C. and Uditha Egalahewa S.C. for State.

28 December, 1995.
The Court delivered its unanimous determination as follows:
A Bill titled "A Bill to amend the Pradeshiya Sabhas Act" was presented to this Court along with citizen's petition SC (SD)
No. 2 of 1995.
Clause 2 of the Bill seeks to add two new sections to the principal enactment. Of them, the proposed section reads:
"9A. The Minister may at any time by Order published in the Gazette: -
(a) vary the limits of any Pradeshiya Sabha area:
(b) vary the number of members determined under section 4 for any Pradeshiya Sabha:
(c) dissolve any existing Pradeshiya Sabha and direct that it shall be replaced by a new Pradeshiya Sabha to be
constituted in lieu of such existing Sabha, whenever it appears to him to be expedient so to do upon any variation of the
limits of the Pradeshiya Sabha area for which the existing Sabha was constituted:
(d) dissolve any Pradeshiya Sabha for the purpose of constituting any other local authority in its place. "

The proposed Section 9B makes the new Sabha the successor of the dissolved Sabhatransferstheproperty,rights,powers,
duties, debts, liabilities and obligations of such dissolved Sabha to the new Sabha sofarassuchpropertyissituated
within the administrative limits of the new Sabha or rights etc. So far as the same relate to any area withinadministrative
limits of the new Sabhaand requires references in any enactment, order, rule, regulation orlawetc.tosuchdissolved
Sabha for the purpose of any area within the administrative limits of such dissolved Sabha, which shallbeincludedwithin
the administrative limits of the new Sabha.

The petitioner avers that the power vested in the Minister to vary the limits of Pradeshiya Sabhas declared underSection2
of the Act and to vary the number of members determined under section 4 of the Act affects the franchise and henceClause2
of the Bill is inconsistent with Article 3, that there are no guidelines for the exercise of such powers or toregulatethe
power to dissolve a Pradeshiya Sabha hence Clause 2 is inconsistent with Article12(1).ThePetitionerfurthercomplains
that the provisions of Article 154 G (3) which requires the President to obtain the views inrespectofthisBillbefore
placing it on the Order Paper has not been complied with.
The Petitioner avers that for the foregoing reasons, the Bill is inconsistent with theConstitutionandcannotbepassed
except with the special majority required by Article 84 (2) and approved by the people at a referendum intermsofArticle
83.
Pradeshiya Sabhas were constituted in terms of section 2(1) of the Act which requires that thelimitsofeveryPradeshiya
Sabha area correspond, as far as possible, to the limits of an AssistantGovernmentAgent'sdivisionexcludinganyarea
comprised in a Municipal Council or a town (within the meaning of the Urban Councils Ordinance). Itwouldseem,therefore,
that Pradeshiya Sabhas were substituted in the place of Village Councils and TownCouncils.Intermsofsection4,the
Minister determines the number of elected members of a Pradeshiya Sabha, having regard totheextent,populationandthe
level of economic development of the Pradeshiya Sabha area.
Under section 5, the term of office of each member of a Pradeshiya Sabha shall, unless such member vacates office earlierby
resignation or removal be for a period of 48 months. Section 5(2) empowers the Minister to curtail or to extend thetermof
office of members so however, that such curtailment or extension shall not exceed one year.

The term of office of each member of a Pradeshiya Sabha shall, in the case of a first GeneralElection,commencefromthe
date specified by the Minister under section 6, which section empowers the Minister to appoint the dateofcommencementof
the term of office of each Pradeshiya Sabha by Order published in the Gazette which date shall also be deemed to be thedate
of the Constitution of such Pradeshiya Sabha.
At the hearing before us, Mr. Choksy PC. for the petitioner informed us that he would limit the objectionstotheBillby
confining himself to the submissions based on Articles 3 and 12(1) of the Constitution.

Mr. Choksy's principal submission was that Clause 2 of the Bill, which seeks to enact a new section 9A isinconsistentwith
Article 3 of the Constitution in that the exercise of the powers thereby conferred on theMinisterwouldadverselyaffect
the franchise of the voters who elected the existing Pradeshiya Sabhas or who will be voting at future elections.Heargued
that the expression "franchise" should not be limited tovotingattheelectionofthePresidentandofMembersof
Parliament and at a Referendum (which are the occasions when franchise isexercisableintermsofArticle4(e)ofthe
Constitution). Mr. Choksy submitted that the Constitution should be liberally interpretedinthecontextofcontemporary
circumstances. Vide Jain "Indian Constitution" 4th Ed. p. 834Minister of Home Affairs v. Fisher (1)andthatthisCourt
should give the expression 'franchise' in Article 3 a wider construction in view of the preamble totheConstitutionwhich
inter alia ratifies "the immutable republican principles of REPRESENTATIVE DEMOCRACY" and specially in view of thedirective
principles of State policy, Article 27(4) which reads:
"The State shall strengthen and broaden the democratic structure of government and the democratic rights of thePeople
by decentralising the administration and by affording all possible opportunities to the people to participate atevery
level in national life and in government".

Article 3 contains provisions relating to the sovereignty of the people. It reads:
"In the Republic of Sri Lanka sovereignty is in the People and isinalienable.Sovereigntyincludesthepowersof
government, fundamental rights and the franchise".
This Article vests sovereignty in the People and proceeds to enlarge the concept of sovereignty by adding toitfundamental
rights and the franchise. Article 4 provides for the manner of exercising sovereignty. Article 4(e) states:
"The franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament,
and at every Referendum by every citizen who has attained the age of eighteen years, and who, being qualified to be an
elector as hereinafter provided, has his name entered in the register of electors".

It would appear from the above provisions that having extended the concept of sovereignty by addingfundamentalrightsand
the franchise, Parliament in prescribing the manner of exercising the franchise,limitedittovotingattheoccasions
referred to in Article 4(e). The wider meaning of franchise which would include voting at other electionssuchaselection
of local bodies or Provincial Councils has not been adopted.
It was held in Re The Thirteenth Amendment to the Constitution(2) that Article 4 is not entrenched and is opentoamendment
provided that such amendment has no prejudicial impact on the sovereignty of the People. Therefore, if Parliament desiresan
expansion of Article 4(e) by including the franchise exercisable at elections not specified therein, it can beappropriately
amended. It is significant that no such amendment has been effected.
Mr. Choksy strongly urged that Article 4(e) is not exhaustive of the manner in which the franchise isexercisableandthat
the franchise is mentioned in Article 3 without any limitation. In support, he relied on the dicta of Wanasundera, J. inthe
Thirteenth Amedment case (p.339) where he said " ............................it should be noted thatfundamentalrights
and the franchise are specifically mentioned in Article 3 without any limitation". It should be notedthatWanasundera,J.
was there considering the extent to which Article 4 is linkedtoArticle3andthepossiblesituationsinwhichany
amendments to Article 4 may impinge on Article 3. He has not attempted to extend the manner of exercising the franchise.
For the foregoing reasons, we hold that Clause 2 of the BillisnotinconsistentwithArticle3oftheConstitution.
Accordingly, the Bill will not require the approval by the People at a Referendum.
Mr. Choksy next submitted that Clause 2 of the Bill is inconsistent with Article 12(1) in that theexerciseofthepowers
vested in the Minister by theproposednewsection9Awould,intheabsenceofappropriateguidelines,resultin
discrimination and thereby deprive the persons affected equally before the lawandequalprotectionofthelaw.Itis
settled law that in enacting legislation Parliament is bound to ensure equality before the law and equalprotectionofthe
law for persons or classes of persons who are similarly circumstanced.

The Attorney GeneralsubmittedthattheamendingBillhasbecomenecessaryinconsequenceofarevisionofthe
administrative limits of the Assistant Government Agent's divisions and that from about 1989 theCabinetofMinistershad
been considering the question of redefining the boundaries of existing Pradeshiya Sabhas to make them co- terminuswiththe
revised administrative limits of the AGA divisions. This as well as the other changes indicated in theBillhavenotbeen
possible due to the absence of appropriate provision in the Pradadeshiya Sabhas Act.
The Attorney-General does not deny the need for adequate guidelines for the exercise of the powers vestedintheMinister.
He informed us that the intention is to exercise the powersundertheproposedsection9A(a)and(b)subjecttothe
guidelines contained in sections 2 and 4 respectively and to exercisethepowersundersection9A(d)subjecttothe
relevant guidelines found in the Urban Councils Ordinance and the Municipal Councils Ordinance, as the case may be.Healso
informed us that it is intended that any orders that may be made under the proposed Section 9Awilltakeeffectuponthe
expiry of the term of office of existing Pradeshiya Sabhas and hencethereisnointentiontointerferewithexisting
rightsand that such intention is implicit in the proposed new section 9A.
We appreciate the submissions made by the Attorney-General but note that as theBillispresentlywordedtheguidelines
referred to by him are not evident in the proposed new section. There is no provision for suspendingtheoperationofany
order that may be made under the proposed new section 9A. We are of the view that the guidelines and the dateonwhichany
Order under the proposed new section 9A shall come into operation should be expressly set out. It is not sufficient forsuch
matters to be implicit. Hence, we are of the opinion, and determine that Clause 2 of the Bill isinconsistentwithArticle
12 (1) and can only be passed with the special majority required under paragraph 2 of Article 84.
The Attorney-General, however, informed us that if thisCourtweretotaketheviewthatClause2oftheBillis
inconsistent with Article 12 (1), the proposed new section 9A will be amended so as to expressly provide for:
(A) that as regards Orders that may be made in terms of paragraphs (a) and (b) of that section, such Orders shall be madein
accordance with the principles set out in section 2 and 4 of thePradeshiyaSabhasAct,asthecasemaybe,andthe
provisions of the said sections 2 and 4 shall mutatis mutandis, apply
(B) that as regards any order that may be made under paragraph (d) of that section,theMinistershallintheeventof
constituting an Urban Council, comply with the principles contained in section 2 of theUrbanCouncilsOrdinance inthe
event of constituting a Municipal Council the Minister shall comply withtheprovisionsofsection2oftheMunicipal
Councils Ordinance and shall also have regard to the development of the amenitiesoftheareaforwhichsuchMunicipal
Council is constituted.
As regards the date on which any order under the proposed new section 9Awillcomeintooperation,theAttorney-General
assured us that provision will be included to the effect that no such Order will come into effectuntiltheexpirationof
the terms of office of the members of any existing PradeshiyaSabhawhichmaybeaffectedbysuchOrder.Mr.Choksy
suggested that no such Order should come into effect until the expiration of the term of office ofanyexistingPradeshiya
Sabha which may be affected by such Order.
(C) We are of the opinion that it is necessary to include provision to the effect that no Order made under theproposednew
section 9A shall come into effect during the term of office of any existing Pradeshiya Sabha which may beaffectedbysuch
Order.
If Clause 2 of the Bill is amended in the manner specified at (A), (B) and (C) above, Clause 2 of the Bill will ceasetobe
inconsistent with Article 12 (1) of the Constitution.
We wish to place on record our deep appreciation of the assistance given bytheAttorney-GeneralandMr.Choksyinthe
consideration of the Bill.
Bill not inconsistent with Article 3 but inconsistent with Article 12 (1)
of the Constitution.


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