The 13th Amendment to the
Constitution had been the focus of public discussion of
late. Its detractors continue to heap opprobrium on it
while its supporters think it is a model which, with
improvements, can be a solution to the national question
and to some of our other problems of governance. Some
even think that it is a system of governance about to be
imposed on the people, little realising that it has been
a part of our Constitution for nearly a quarter of a
century. During this period, the system of devolution
that it introduced seems to have worked without any
major hiccups.
It is this context that Dr. Marasinghe’s
book is timely and welcome. Dr. Marasinghe has used his
considerable analytical skills to analyse the powers and
the duties of the Governor under the 13th
Amendment to the Constitution. His exhaustive analysis
helps to dispel some of the popular myths surrounding
the system of devolution introduced by the 13th
Amendment.
Powers of the governor
As the author himself remarks, "the
Provincial Governor plays a central role within the
constitutional structure established by the 13th
Amendment. This role is played solely as the
representative of the President who is the repository of
executive power within the State." An analysis
therefore, of some of the powers and the duties of the
Governor can give useful insights into the workings of
the system of devolution introduced by the 13th
Amendment .
The author uses the distinction made in
the case of Mahindasoma vs. Maithripala Senanayake
between the plenary powers of the Governor, which are
subject to judicial review, and the delegated powers of
the Governor, which are not subject to judicial review,
to discuss at length, the powers of the Governor.
Under the 13th Amendment the
Governor was enjoined to exercise his powers on the
advice of the Board of Ministers, except in the case of
his discretionary powers. The Governor could decide on
what his discretionary powers were and his decision on
this matter was not subject to judicial review. The
Supreme Court has in an interesting judgment set limits
on this seemingly open ended power. His powers to delay
statutes of a Provincial Council for example, are
greater than the powers exercised by colonial governors
over legislation passed by colonial legislatures.
Under the 13th Amendment when
a statute is presented to the Governor for assent, he
can request the Provincial Council to reconsider the
statute or suggest amendments to the statute. If the
Provincial Council passes the statute for a second time
without the amendments suggested by the Governor, he can
withhold his assent to the statute and request the
President to refer the statute to the Supreme Court for
a decision on its constitutionality .
It would have been useful if there had
been a discussion on how these powers have been
exercised in practice . The number of times, for
example, this power has been used by the Governor since
1987 and the statutes if any that have been referred to
the Supreme Court, by the President at the request of a
Governor.
Finance of the province
The author also discusses the Governor’s
powers in relation to the finances of the province and
the provincial public service. Under the Provincial
Councils Act , a statute imposing or altering a tax or
appropriating monies out of the Provincial Fund can be
introduced in the Provincial Council only on the
recommendation of the Governor. The author indicates
that these powers can be exercised by the Governor on
the directions of the President , ensuring for example,
that the taxes imposed in the province are in alignment
with the taxation policies of the centre. It is a moot
question however, whether these powers of the Governor
have to be exercised on the directions of the President
or on the advice of the relevant board of ministers.
Amendments to the act
The author also discusses the amendments
to the Provincial Councils Act brought in by Act No 27
of 1990. Under these amendments, the Governor has the
power to disqualify a Member of a Provincial Council
from membership of a council by communicating to the
Chairman of the Council that in the Governor’s opinion
the member has expressly repudiated or manifestly
disavowed the Constitution .
Where the Governor expresses such an
opinion with regard to over half the membership of a
Council, the Council stands dissolved. These provisions
were introduced in 1990 to pre-empt secessionist moves
by the then Chief Minister of the North Eastern
Province. These powers do not appear to have been
challenged when they were first exercised, but as the
author rightly points out the exercise of these powers
by a Governor are susceptible to challenge for
infringement of fundamental rights.
At page 9 of the book, the author states
that Article 154P has expanded the jurisdiction of the
High Court of Sri Lanka. Article 154 P in fact creates a
new court manned by judges of the High Court of Sri
Lanka. The High Court of Sri Lanka and the Provincial
High Courts are separate courts with separate
jurisdictions. Based on the decision of Wijewardena vs.
Director of Local Government , the author suggests that
provincial public officers are public officers and thus
amenable to the fundamental rights jurisdiction of the
Supreme Court. I think the Provincial Council Act
recognises that provincial public officers are in a
separate category from public officers , the latter
being paid from the Consolidated Fund and the former
being paid from the Provincial Fund.
This does not mean of course, that acts
of provincial public officers do not constitute
‘executive or administrative action’ within the meaning
of Article 126 of the Constitution. A Provincial Council
can pass a resolution recommending the removal of the
Governor from office. The author suggests that the
courts can examine whether the procedural requirements
for the passing of such a resolution have been observed.
He has not considered the impact of
section 12 of the Provincial Councils Act on the
jurisdiction of the courts. This section prohibits the
questioning of the validity of a proceeding of a
Provincial Council on the ground of procedural
irregularity. Barring these minor quibbles, Dr.
Marasinghe’s book is an important addition to our legal
literature and sheds much light on some of the dark
corners of the 13th. Amendment, which is
probably the most important amendment to the
Constitution to date.
