312

IN RE THE THIRTEENTH AMENDMENT TO THE CONSTITUTION

AND THE PROVINCIAL COUNCILS BILL
SUPREME COURT.
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 ConstitutionReferendum-Chapter XVIIA, Articles 154A to T.
The President referred two Bills entitled "Thirteenth Amendment to the
Constitution A Bill to amend the Constitution of the Democratic Socialist
Republic of Sri Lanka" and Provincial Councils Bill" to the Supreme Court
under Article 121 of the Constitution.
The Thirteenth Amendment sought to amend the provisions in the Constitution
relating to language (Article 18), jurisdiction of the Court of Appeal by addition
of jurisdiction to review orders of the High Court made in its new appellate
jurisdiction (Article 138 (1) and by the addition of a new Chapter XVIIA and
Articles 154A to 154T relating to the executive, administrative and legislative
powers of Provincial .Councils and the power of amendment, overriding or
repealing them 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 approval by the People at a
Referendum by virtue of the provisions of Article 83. Once the Bill is passed by
a 2/3 majority and the 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 and the absence of subsidiary sovereign
bodies remains unaffected. The Provincial Councils do not exercise sovereign

legislative power and are only subsidiary bodies exercising limited legislative
power subordinate to that of Parliament. Parliament has not there by
abdicated or in any manner alienated its legislative power. Delegated
legislation is legal and permitted and does not involve any abandonment or
abdication of legislative power in favour of any newly created legislative
authority.
The concept of devolution is used to mean the delegation of Central
Government power without the relinquishment of supremacy. Devolution may
be legislative or administrative or both and should be distinguished from
decentralisation. The scheme of devolution set out in the Bills does not erode
the sovereigity of the People and does not require the approval of the People
at a Referendum.
313
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 Constitution.
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 (Spl).

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 Shantha Senadheera 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).
314
Anil Silva with N. R Ranamukarachchi, Shanta Senadhaera, Janaka de Silva,
Charita Lankapura, 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
by Wijesinghe 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.
Kanag lswaran, 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).

315
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. No. 1/87.
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.
Cur. adv. vult.
November 6, 1987.
Determination per
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 of the Democratic Socialist Republic of Sri Lanka" and
"Provincial Councils Bill" respectively were placed on the order paper of
Parliament and presented to Parliament by the Honourable Minister of Public
Administration and Minister of Plantation Industries on 9th October, 1987. The
Constitutional jurisdiction vested in this Court by Article 120 of the Constitution
to determine the question whether the Bills or any provision thereof are
inconsistent with the Constitution has been invoked by the several 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 Article 18 of the
Constitution of the Democratic Socialist 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."
316
Clause 3 of the Bill to amend the Constitution further states that Article 138 of
the said Constitution is hereby amended in paragraph (1) of that Article as
follows:
"(a) by the substitution, for the words 'committed by any court of First Instance'
of the words 'committed by the High 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 and states 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 procedure to be followed
in Provincial Councils, a few matters 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 the Chief Justice of general and public importance, the Chief Justice in the
exercise of his powers under Article 132 (3) of the Constitution, directed that
the 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. The Attorney-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 Constitution; and
317
(d) that the Bills were inconsistent with Article 9 of the Constitution and hence
required the approval by the People at a Referendum.
(e) that the Bill to amend the Constitution-the Thirteenth Amendment to the
Constitution, seeks to amend Article 83 of the Constitution, by adding the
provisions of Article 153G (2)(b) and Article. 153G (3)(b) to the entrenched
provisions specified in Article 83 of the Constitution
That the said Bills contain provisions that cannot be enacted except by
following the procedure laid down in Article 83 of the Constitution, that is to
say, by 2/3 of the Members of Parliament voting in favour of them and the
approval of the People being given at a Referendum, while other provisions
relate to the basic structure or framework of the Constitution and are not
amendable.
The determination of four Judges of this court viz: Chief Justice, Justice P.
Colin Thome, Justice E. A. D. Atukorale and Justice H. D. Tambiah, is that for
the reasons set out below neither the Bill nor any provision of the Thirteenth
Amendment to the Constitution-a Bill to amend the Constitution of the
Democratic Socialist Republic of Sri Lanka, requires approval by the People at
a Referendum by virtue of the provisions of Article 83, and that once the said
Bill is passed and the 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 "Bill to amend the Constitution of Sri Lanka
(Thirteenth Amendment to the Constitution)" require approval by the People at
a Referendum by virtue of the provisions of Article 83. He agrees with the view
that no provision of the aforesaid Bill the Thirteenth Amendment to the
Constitution is inconsistent with any of the provisions of Articles 2, 3, 4 or 9 of
the Constitution. He states that the. constitutionality of the provisions of the
Provincial Councils Bill will depend upon the aforesaid 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,

Justice L. H. de Alwis, Justice O. S. M. Seneviratne and Justice H. A. G. de
Silva is that, the provisions of the Thirteenth
318
Amendment to the Constitution require 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 does not conform to Article 82(1) of the
Constitution and that hence it is not a proper Bill that can betaken up for
consideration by this court under Article 120 of the Constitution. It was said
that the Bill was not for the amendment of any Provisions of the Constitution,
as a whole chapter, namely Chapter XVIIA consisting of a number of new
provisions coupled with a Ninth Schedule with appendices and lists is sought
to be added and consequential amendments have not been expressly
specified in 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 Constitution is involved by the addition of Chapter
XVIIA. Article 82(7) states that an amendment includes, repeal, alteration and
addition. The new Chapter XVIIA is an addition to the provisions of the
Constitution and therefore constitutes an amendment. It deals with a new
subject matter and no consequential amendment is, involved. In our view the
Bill is in no way defective. The Bill has been properly placed on the Order
Paper of Parliament and this court can exercise its jurisdiction under Article
120 of the Constitution in respect of that Bill. In any event the question
whether a Bill does comply with the requirements of Article 82(1) is a matter
for the Speaker of Parliament.
The main contentions of the petitioners were that the new Chapter XVIIA
consists of several provisions which are inconsistent with the provisions of
entrenched Articles 2 and 3 of the Constitution and therefore that Chapter
cannot become 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 as; mandated 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 to establish a constitutional structure which is Federal or
quasi-Federal and hence that clause is inconsistent with-Article 2.
319
The term "unitary" in Article 2 is used in contradistinction to the term "Federal"
which means an association of semi-autonomous nits with a distribution of
sovereign powers :between the units and the centre. In a Unitary State the
national government is legally supreme over all other levels. The essence of a
Unitary State Js that the sovereignty is undivided in other words, that the
powers of the central government are unrestricted. The two essential qualities
of a Unitary State are (1) the supremacy of the central Parliament and (2) the
absence of subsidiary sovereign bodies. It does not mean the absence of
subsidiary law-making bodies, but it does mean that, they may exist and can
be abolished at the discretion of the central authority. It does, therefore, mean
that by no stretch of meaning of words can those subsidiary bodies be called
subsidiary sovereign bodies and finally, it means that there is no possibility of
the central and the other authorities coming into conflicts with which the
central government, has not the legal power to cope. Thus, it is fundamental to
a Unitary State 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 State governments which. are not subordinate one
to another, but are co-ordinate and independent within the sphere allotted to
them. The existence of co-ordinate authorities. independent of each other is
the gist of the federal principle. The Federal government is sovereign in some
matters and the State governments are sovereign in others. Each within its
own spheres exercise its powers without control from the other and neither is
subordinate to the other. It is this feature which distinguishes a Federal from a
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 and governments for parts of the country in
such a way that each government is legally independent within its own sphere.

The government for the whole country has its own area of powers and its
exercises them without
320
any control from the governments of the constituent parts of the country, and
these latter in their turn exercise their powers without being controlled by the
Central Government. In particular the legislature of the whole country has
limited powers and the legislatures of the State or Provinces have limited
powers. Neither is subordinate to the other. Both are co-ordinate. In a unitary
Constitution, on the other hand, the legislature of the whole country is the
Supreme Law-making body in the country. It may permit other legislatures to
exist and to exercise their powers, but it has the right, in law, to overrule them
they are subordinate to it.
The question that arises is whether the 13th Amendment Bill under
consideration creates institutions, of government which are supreme,
independent and not subordinate within their defined spheres. Application of
this test demonstrates that both in respect of the exercise of its legislative
powers and in respect of exercise of executive powers no exclusive or
independent power invested in the Provincial Councils. The Parliament and
President have ultimate control over them and remain supreme.
In regard to legislative power, although there is a sphere of competence
defined by the two Bills both in respect of matters set out in the Provincial list
and in respect of matters set out in the concurrent list within which a Provincial
Council can enact statutes, this legislative competence is not exclusive in
character and is subordinate to that of Central Parliament which in terms of
Article 154G(2) and 154G(3) can, by following the procedure set out therein,
override the Provincial Councils. Article 154G conserves the sovereignty of
Parliament in the legislative field. Parliament can amend or repeal, the
provisions in the Bill relating to, the legislative authority of the Provincial
Councils. The Provincial Council is dependent for its continued existence and
validity and for its legislative competence in respect of matters in the
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 restraints.
321

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 to produce among themselves a requisite majority e.g. when in
the case of ordinary legislation the voting is evenly divided or when in the case
of legislation to amend the Constitution there is only a bare majority if the
Constitution requires something more. The minority are entitled under the
Constitution of Ceylon to have no amendment of it which is not passed by a
2/3 majority. The limitation thus imposed on some lesser majority of members
does not limit the sovereign powers of Parliament itself, which can always,
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 can be exercised. Article 154G(2) and (3) merely set
out the manner and form for the exercise of its legislative power by Parliament
to repeal or amend the provisions of Chap. XVIIA and the Ninth schedule or to
legislate in respect of any matter included in the Provincial Council List.
A legislature can provide not merely that a constitutional amendment shall
follow certain procedure (such as receiving the assent of a special majority) or
be approved by a majority of the electors at a Referendum but also that any
Act repealing 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 on or derogate from the sovereignty of
Parliament. Attorney-General for New South Wales v. Trethowan [1932] A.C.
526; Harris v. Ministry of Interior, (1952) 2 S.A.L.R. 428, "Harris case
established the principle that Parliament may be sovereign and yet be subject
to the manner and form for the legally effective expression of its will" (Colin
Turpin in British Government and the 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.
322
With respect to executive powers an examination of the relevant provisions of
the Bill underscores the fact that in exercising their executive power, the
Provincial Councils are subject to the control of the centre and are not
sovereign bodies.

Article 154C provides that the executive power extending to the matters with
respect to which a Provincial Council has power to make statutes shall be
exercised by the Governor of the Province either directly or through Ministers
of the Board of 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 with such advice, 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 holds office in accordance
with Article 4(b) which provides that the executive power of the People shall
be exercised by the President of the Republic, during the pleasure of the
President (Article 154B(2)). The Governor derived his authority from the
President and exercises the executive power vested in him as a delegate of
the President. It is open to the President therefore by virtue of Article 4(b) of
the Constitution to give directions and monitor the Governor's exercise of this
executive power vested in him. Although he is required by Article 154F(1) to
exercise his functions in accordance with the advice of the Board of Ministers,
this is subject to the qualification "except in so far as he is by or under the
Constitution required to exercise his functions or any of them in: his
discretion." Under the Constitution the Governor as a representative of the
President is required to act in his discretion in accordance with the instructions
and directions of the President. Article 154F(2) mandates that the Governor's
discretion shall be on the President's directions and that the decision of the
Governor as to what is in his discretion shall be final and not be called in
question in any court on the ground that he ought or ought not to have acted
on his discretion. So long as the President retains, the power to give directions
to the Governor regarding the exercise of his executive functions, and the
Governor is bound by such directions superseding the advice of the Board of
Ministers and where the failure of the Governor or Provincial Council to
comply with or give effect to any directions given to the Governor or such
Council by the President under Chapter XVII of the Constitution
323
will entitle the President to hold that a situation has arisen in which the
administration of the Province cannot be carried on in accordance with the
provisions of the Constitution and take over the functions and powers of the
Provincial Council (Article 154K and 154L), there can be no gainsaying the
fact that the President remains supreme or sovereign in the executive field
and the Provincial Council is 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 and the Court of Appeal continue to
exercise unimpaired the several jurisdictions vested in them by the
Constitution. There is only one Supreme Court and one Court of Appeal for
the whole Island, unlike in a Federal State The 13th Amendment Bill only
seeks to give jurisdictions in respect of writs of Habeas Corpus in respect of
persons illegally detained within the Province and Writs of Certiorari,
Mandamus and Prohibition against any person exercising within the Province
any power under any law or statute made by the Provincial Council in respect
of any matter in the Provincial Council list and appellate jurisdiction in respect
of convictions and sentences by Magistrate's Courts and Primary Courts
within the Province to the High Court of the Province, without prejudice to the
executing jurisdiction of the Court of Appeal. Vesting of this additional
jurisdiction in 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 to the several High Courts remains with the Chief
Justice. The appointment, transfer, dismissal continue to be vested in the
Judicial Service Commission. Thus, the centre continues to be supreme in the
judicial area and the Provincial Council has no control over the judiciary
functioning in the Province.
In our view no division of sovereignty or of legislative, executive or judicial
power has been effected by the 13th Amendment Bill or by the Provincial
Council Bill. The national government continues to be legally supreme over all
other levels or bodies. The Provincial Councils are merely subordinate bodies.
Parliament has of parted with its supremacy or its 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.
324
The Petitioners further alleged that the sovereignty of the people, enshrined in
Article 3 of the Constitution is infringed by the provisions of the two Bills.
Article 3 states:
'In the Republic of Sri Lanka sovereignty is in the People and is inalienable.
Sovereignty includes the powers of 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, has to be read with Article 3 as an integral part of
Article 3, and as such is entrenched along with Article 3 by Article 83. The
Constitution expressly specifies the Articles which are entrenched, Article 4 is
not one of those Articles. The legislative history of the 1978 Constitution
shows that Article 4 was deliberately omitted from the list of entrenched
articles. The report of the Parliamentary Select Committee on the Revision of
the Constitution published on 22.6,1978 discloses that the Committee
recommended the entrenchment of Articles 1-4, 9, 10, 11, 30(2), 62(2) and 83
(para.9 of the Report). The Bill for the repeal and replacement of the 1972
Constitution (published in the Gazette of 14.7.78) included Article 4 in the
category of entrenched Articles. However, when the Bill was passed,
Parliament omitted Article 4 from the list of entrenched provisions. 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 the People, referred to in the entrenched Article 3. It is
always open to change the agency or instrument by amending Article 4,
provided such amendment has no prejudicial impact on the sovereignty of the
People Article 4(a) prescribes that the legislative power of the People shall be
exercised by Parliament, consisting of the elected representatives of the
People and by the People at a Referendum". Article 4(a) can be amended to
provide for another legislative body consisting of elected representatives, 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 People by a President and a Vice
President elected by the People. However, to the extent that a principle
contained in Article 4 is contained or is a necessary corollary or concomitant of
Article 3, a constitutional amendment
325
inconsistent with such principle will require a Referendum in terms of Article
83, not because Article 4 is entrenched, but because it may impinge on Article
3. In our view, Article 4 is not independently entrenched but can be amended
by a two third majority, since it is only, complementary to Article 3, provided
such amendment does not impinge on Article 3. So long as the sovereignty of
the People is preserved as required by article 3, the precise manner of the
exercise of the sovereignty and the institutions for such exercise are not".
fundamental Article 4 does not define or demarcate the sovereignty of the

People. It merely provides one form and manner of exercise of that

sovereignty. A change in the institution for the exercise of, legislative or
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 in the Provincial Council
list and concurrent list, lists I and III in Ninth Schedule. We have on an
examination of the relevant provisions of the 13th Amendment Bill, set out our
reasons for. taking the view that the Provincial Councils do not exercise
sovereign legislative power and are only subsidiary bodies, exercising limited
legislative power, subordinate to that of Parliament. Parliament has not
thereby abdicated or in any manner alienated its legislative power. It was
contended by the Petitioners that even that small. measure of subsidiary
legislative power vested in the Provincial Councils is forbidden by Article 76
(1) of the Constitution. It was stressed that the article prohibits Parliament
setting up any authority with any legislative power: However Article 76(3)
provides that
"It shall not be a contravention of the provisions of paragraph (1) of this article
for Parliament to make any law 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 abdication of legislative power in favour of any newly created
legislative authority. No new legislative body armed with general legislative
authority is created when a new body is empowered to make subordinate
legislation. Since the contemplated Provincial Councils in our view do not
perform any sovereign legislative, function but are only empowered to enact
legislation, subordinate in
326
character, Parliament in creating them is not establishing another legislative
body rival to it in any respect. Parliament can pass legislation in the prescribed
form and manner superseding the Provincial Council legislation or even
repealing the provisions creating them.
In our view, even if it be said that by the Bill, Parliament is seeking to set up
Provincial Councils with legislative power in derogation of Article 76(1), since
Article 4 is not an entrenched provision, the Bill can be passed by a two third
majority without a Referendum. The Bill does not in any way affect the
sovereignty of the People. Instead of the legislative and executive power of
the People being concentrated in the hands of Parliament and President it is

sought to be diversified in terms of the Directive Principles of State Policies

found in Article 27(4) of the Constitution. This article provides that:
"The State shall strengthen and broaden the democratic structure of
government and the democratic rights of the People by decentralising the
administration and by affording all, possible opportunities to the People to
participate at every level in national life and in government."
Article 27(1) states that
"the Directive Principles of State Policies contained herein, shall guide
Parliament, the President and the Cabinet of 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 not detract from their value as projecting the aims and
aspirations of a democratic government The Directive Principles require to be
implemented by legislation. in our view, the two Bills represent steps in the
direction of implementing the programme envisaged by the Constitution
makers to build a social and democratic society.
Healthy democracy must, develop and adopt itself to changing circumstances.
The activities of central government now include substantial powers and
functions that should be exercised at a level closer to the People. Article 27 (4)
has in mind the aspirations of local people to participate in the governance of
their regions. The Bills
327
envisage a handing over of responsibility for the domestic affairs of each
province, within the framework of a united Sri Lanka. They give new scope for
meeting the particular needs and desires of the people for each province.
Decentralisation is a useful means of ensuring 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 means gives shape to
the devolutionary principle.
The concept of devolution is used to mean the delegation of central
government powers without the relinquishment of supremacy. Devolution may
be legislative or administrative or both. It should be distinguished from
decentralisation which is a method whereby some central government powers

of decision making are exercised by officials of the central government located

in various regions. "Devolution of parts of the United Kingdom would not affect
the unity of the United Kingdom or the power of Parliament to legislate (even
on devolved mattes) for all or any part of the United Kingdom, or to repeal or
amend the devolutionary arrangements themselves." Hood Philips
Constitutional and Administrative Law 6th Ed. at page 716 Where legislative
powers are devolved it would, be possible to restrict the use Of, those powers
by making use of Parliaments paramount power to legislate for the region. In
Northern Ireland the principle of devolution had been put into practice.
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 Lanka
generally. The powers that are conferred on the Provincial Councils are not at
the expense of the benefits which flow from political and economic unity of Sri
Lanka Political unity means that Parliament, representing all the people, must
remain. sovereign over their affairs and that the government of the day must
bear the main responsibility to Parliament for protecting and furthering the
interests of all. Economic unity means that the Government must manage the
nation's external economic relations with other countries. The Government,
must be able to control national taxation, total public expenditure and the
supply of money and credit and the Government must also keep the task of
devising national policies to benefit particular parts of the country and of
distributing resources among them according to relative need. Resources are
distributed not
328
according to where they come from but according to where they are needed.
This applies between geographical areas just as much as between individuals.
Article 154R (5) mandates the Finance Commission to formulate principles
with the objective of achieving balanced regional development in the country.
The President is directed to cause every recommendation made by the
Finance 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. The scale and character of the devolved
responsibilities will enable the People of the several provinces to participate in
the national life. and government. The general effect of the new arrangement
will be to place under provincial democratic supervision a wide range of
services run in the respective. provinces for the said provinces, without
affecting the sovereign powers of 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 submission was that the clauses 4 and 7 of the
13th Constitutional Amendment Bill seek to establish a Constitutional structure
which is Federal or quasi-Federal and these Provisions take away the
Unitarianism enshrined in Article 2. In our considered view, there is no
foundation for the contention that the basic features of the Constitution have
been altered or destroyed by the proposed amendments. The Constitution will
survive without any loss of identity despite the amendment. The basic
structure or framework of the Constitution will continue intact in its integrity.
The unitary state will not be converted into a Federal or quasi-Federal State.
We have already examined the question whether the amendment in any way
affects entrenched Article 2 which stipulates a unitary State and after an
analysis of the relevant provisions of the amending Bill, have come to the
conclusion that the unitary nature of the State is in no way affected by the
proposed amendments and that no new sovereign legislative body executive
or judiciary is established by the amendment. The contra submission made by
the petitioners is based on the misconception that devolution is a divisive force
rather than an integrative force.
329
It was contended that the scope of amendment contemplated by Article 82
and 83 is limited and that there are certain basic principles or features of the
Constitution which can in no event be altered even by compliance with Article
83. Reliance was placed for this proposition on the decisions of the Supreme
Court of India in Kesavananda v. State of Kerala, AIR 1973. SC 1461 and
Minerva Mills Ltd., v. Union of India AIR 1980, SC 1789. Those decisions of
the Supreme Court of India were based 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 purpose in either House of Parliament......."
The said section 368 carried no definition of "amendment" nor did it indicate its
scope. It was in this context that the Supreme Court in the Kesavananda case,
reached the conclusion by a narrow majority of seven to six that the power of
amendment under Article 368 is subject to implied limitation and Parliament
cannot amend those provisions of the Constitution which affect the basic
structure or framework of the Constitution. The argument of the majority was
on the following line :-

"The word amendment postulates that the old Constitution survives without
loss of its identity despite the change and continues even though it has been
subjected to alterations. As a result of the amendment the old Constitution
cannot be destroyed, and done away with it is retained though in the amended
form. The words amendment of the Constitution with all their wide sweep and
amplitude cannot have the effect of destroying and abrogating the basic
structure-or frame work of the Constitution" per Khanna, J.,
But both our Constitutions of 1972 and 1978 specifically provide for the
amendment or repeal of any provision of the Constitution or for the repeal of
the entire Constitution-Vide Article 51 of the 1972 Constitution and Article 82
of the 1978 Constitution. In fact, Article 82(7) of the 1978 Constitution states
"in this chapter "Amendment" includes repeal, alteration and addition." In view
of this exhaustive explanation that amendment embraces repeal, in our
Constitution we are of the view that it would not be proper to be guided by
concepts of 'Amendment' found in the Indian judgments which had not to
consider statutory definition of the word 'Amendment.' Fundamental principles
or basic features of the Constitution have to be found in some provision or
provisions of the Constitution and if the Constitution contemplates the repeal
of any provision or provisions of the entire
330
Constitution, there is no basis for the contention that some provisions which
reflects fundamental principles or incorporate basic features are immune from
amendment. Accordingly, we do not agree with the contention that some
provisions of the Constitution: are unamnendable.
It was submitted that the proposed Article 154G(2) and (3) add, to the
entrenched provisions contained in Article 83 and hence involve an
amendment of Article 83 of the Constitution. There is no express amendment
of Article 83. But it was contended that by providing in the proposed articles
154G(2) and (3) that approval of the People at a Referendum is necessary, for
amendment or repeal of the provisions of Chapter XVIIA or for passing a Bill in
respect of any matter set out in the Provincial Council list, one is adding to the,
list of Articles enumerated in Article 83 which postulates a Referendum for
their amendment or repeal, one is thereby amending Article 83 of the
Constitution. In our view Article 83 had to be entrenched, otherwise, by the
simple process of amending Article 83 by a two-third majority, the
entrenchment of the several articles specified in it could be frustrated. The
draftsman would otherwise have had to specify separately in each case that
the article is entrenched in the manner set out in Article 83. The draftsman
instead of doing that had short circuited by specifying all the Articles subject to
the specific amendatory process in Article 83 and providing that Article 83 is

entrenched. The rationale for entrenching Article. 83 was to ensure the

entrenchment of the articles specified therein. If the draftsman had not
followed the short cut set out in Articles 83, but had set down each such article
and followed each one with the entrenching clause; this argument that article
83 stands amended consequent to Article 154G(2) and (3) would have ex
facie been untenable. The argument that Article 83 is impliedly amended
consequent to Article 154G(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). The latter Articles involve no amendment of Article 83 and
are independent of Article 83 and of the Articles specified therein: The
draftsman has separately provided for the amendatory process of Article 154
G(2) and (3) and had not expressly amended Article 83 by adding to the
Articles specified therein. The draftsman has not thereby impliedly amended
Article 83. In our view the additional instances of entrenchment contemplated
by Article 152 G(2) and (3) do not therefore infringe Article 83.
331
The rationale of Referendum is the acknowledgement of the sovereignty of,
the People. Referendum is a method by, which the wishes of the People may
be expressed with regard to the proposed legislation. The proposed Article
154G (2) and (3) by stipulating a Referendum affirm, the sovereignty of the
People. It will be a sterile exercise to ask the People whether they 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 on a
platter. Consideration of the purpose of an enactment is always a legitimate
part of the process of interpretation. The nature and purpose of 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 to
challenge the vires or validity of "statute" enacted by a Provincial Council. He
submitted that while Article 121 provides an opportunity to a citizen to test the
validity of a Bill before it become law, enacted by Parliament, there is no
corresponding provision in the Bills for any citizen to invoke the jurisdiction of
the Supreme Court to determine any question as to whether any "Statute" or
any provision thereof, prior to it being enacted into a 'statute' by a Provincial
Council, is inconsistent with the Constitution. He argued that in that respect, a
statute has an- advantage over and is more elevated than a Parliamentary Bill
His submission overlooks Article 80(3) of the Constitution, which provides that
Where a Bill becomes law upon the certificate of the President or the Speaker,
as the case may be, no court or tribunal shall inquire into pronounce upon-or

in any manner call in question the validity of such Act on any ground
whatsoever." This sub-article gives the seal of finality to a law passed by
Parliament. Such a law cannot be challenged on any ground whatsoever even
if it conflicts with the provisions of the Constitution, even if it is not competent
for Parliament to enact it by a simple majority or two third majority. On the
other hand a statute passed by a Provincial Council does not enjoy any such
immunity. It does not have the attribute of finality and is always subject to
review by court. The validity of a statute can always be canvassed in a court of
law, even years after its passage. If it is ultra vires for a Provincial Council, to
enact such a statute, it is a nullity and is void ab initio. A 'statute' unlike a law
which is proprio vigore valid, does not acquire such validity on its enactment.
332
That is why there is no Article corresponding to Article 121, in respect of a
Provincial Bill before it is enacted into a 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 the Republic of Sri Lanka shall give to
Buddhism the foremost place and accordingly it shall be the duty of the State
to protect and foster the Buddha Sasana while assuring to all religions the
rights granted by Articles 10 and 14(e). An analysis of the provisions of the Bill
shows that the capacity of the Republic to perform its obligations under Article
9 remains unimpaired and that there is no ground for any reasonable
apprehension as entertained by Counsel that the Provinces wilt be or able to
obstruct such performance. Counsel based his apprehension on the inclusion
of the subject ancient and historical monuments other than those declared- by
or under law made by Parliament to be of national importance, in the
Provincial list. It is to be noted that the Reserved List reserves for the State
National Archives, Archaeological activities and sites and antiquities declared
by or under any law made by Parliament to be of national importance. This
would include, ancient and historical. monuments and records and
archaeological sites and remains declared by or under law made by
Parliament to be of national importance. It is further to be noted that all
subjects and functions not specified in the Provincial list or concurrent list
come within the Reserved List and that all residuary powers are vested in the
State. In the background of the above provisions in the Bills, the fear
expressed by Counsel is groundless. In our view, the Provincial Councils can
place no impediment in the way of the State giving Buddhism the foremost
place and protecting and fostering the Buddha 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 preamble.
333
WANASUNDERA, J.
These two Bills titled "Thirteenth Amendment to the Constitution" and "The
Provincial Councils Bill" have been on the Order Paper of Parliament and our
jurisdiction, in terms of Article. 121 (1) has been invoked by the President on a
written 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," the only question which the Supreme Court may determine
is whether such Bill requires approval by the People of a Referendum by virtue
of the provisions of Article 83. The Provincial Councils Bill is interconnected
with and consequential to the above proposed Thirteenth Amendment to the
Constitution. It is not described in its long title as being for the amendment of
any provision of the Constitution. Since the constitutionality of this Bill too is
challenged in terms of the constitutional provisions, we would have to
determine whether any provision of the Bill too requires to be passed with the
special majority required by Article 84, or whether any provision of such Bill
requires the approval by the People at a Referendum by virtue of the
provisions of Article 83, or whether such Bill is required to comply with the
provisions of paragraphs (1) and (2) of Article 82.
Before proceeding further, I thought that I should mention a matter relating to
this judgment by way of explanation rather than in extenuation. We can all
agree with counsel who described this case as the most critical, the most
important and the 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 Speaker within three weeks of the making of the
reference or the filing of the petition. Of these three weeks, time was given to
all the parties who are before us 49 petitions, some challenging the Bill, others

supporting to file their written submissions: Hearings began in open court on

the 22nd of October and concluded on the 30th. We were, therefore, left with
only six days to come to a conclusion, draft the order, and have it typed and
ready for transmission. The petitioners themselves were barely able to open
their case and develop it to their satisfaction.
334
In our ordinary day to day work, in cases of no great importance, we are
accustomed to take five to six weeks after the conclusion of the hearings to
deliver our judgment. In a case of this magnitude and importance, the time
allotted seems 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 coming to a conclusion of which I entertain no doubts
whatsoever a longer time both for argument and decision would, I am sure,
have helped to produce a judgment containing a better, analysis, a better
arrangement and a better phrasing, and supported by a greater volume of
material and authorities. However, as stated earlier, I am fully satisfied that the
conclusions I have arrived at are right and just in spite of constraints
mentioned above. I regret only that I have been able to deal with the salient
points and the brief time did not permit me to deal with a number of others of
lesser importance which in normal course, would have 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, and the public spirited petitioners who appeared in
person, for their great assistance in this most difficult task. Without this
valuable 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 to alter the basic or 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 match the provisions of the
impugned Bills with the constitutional provisions and find out in what manner
and to what extent (if any) the gills are inconsistent with the Constitution.
Our Constitution contemplates three or even four types of situations in which
the "constitutional" and legislative power of the State can be exercised. First,
the exercise of legislative power in the making of ordinary legislation, that is by
a simple majority. Second, the exercise of "the constituent" power for
amendments of the Constitution in situations other than those mentioned in

Article 83, that is by a two-thirds or special majority. Third, the situations dealt
with in Article
335
83 which require, in addition to the two-thirds majority, a Ref There could in
theory be a fourth category even outside the am 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 of the Constitution. Article 1 declares Sri Lanka
to be a Free Sovereign, Independent and Democratic Socialist Republic
Article 2 declares that the Republic of Sri Lanka is a Unitary State. Article 3
declares that the Sovereignty of Sri Lanka is in the People and is inalienable
and that this Sovereignty includes the powers of government, fundamental
rights and the franchise. Article 4, although not mentioned specifically in
Article 83, is consequential to and an elaboration of article 3 and spells out the
concept of Sovereignty of the People and how it should be exercised. There is
in Article 4 the laying down of the structure of Government in the form of the
three great departments of Government, namely, the Legislature, the
Executive, and the 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. Constitution and unlike the Indian or the U.K.
Constitutions, vests Sovereignty in the People and the organs of Government
hold a mandate and are agents of the People. In our Constitution the People
have given themselves a Constitution and it is unthinkable therefore as a
general proposition that this Sovereignty, which means the Sovereignty of the,
country and its unitary nature, the democratic form of government, their right
of franchise, their fundamental rights, and the judicial power protecting them,
can be amended without the consent of the People. The requirement that in
certain matters the approval of the People at a Referendum Would be

necessary for the amendment of the Constitution provides the protection for
those rights.
336
Interpreting the corresponding amending provision (Article 368) of the Indian
Constitution, the Indian Supreme Court has come to a similar conclusion. The
effect of the ruling in Golak Nath's Case, AIR 1961 SC 1643; Kesavanda
Bahrati's Case (Fundamental Rights Case), AIR 1973 SC 1461; and Mrs.
Indira Gandhi's Case (Election case), AIR 1975 SC 2299, is to the effect that
the amending power contained in Article of 368 does not extend to altering the
basic structure or Framework of the Constitution.
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 powers; and
(5) the federal character of the Constitution.
Shelat J. Grover J added:
(6) the mandate to build a welfare state contained in the Directive principles;
and
(7) the integrity of the nation .
Milkerje and Hedge JJ thought it include(8) the sovereignty of India ;
(9) the unity of the country; and
(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.
337
It is sometimes contended that Article 4 is hot an entrenched provision. It is
certainly not one of the Articles specified in the entrenching Article 83. Are
there other Articles either because they are inextricably connected with the
specified Articles, or because they themselves must be considered as being
basic to the structure of the Constitution that are equally entrenched? These
are the questions posed in this case, some of which are undoubtedly covered
by previous rulings given by this court.
A few examples should clear up this issue. The office of President is not
mentioned in Articles 1, 2 or 3. It is mentioned in Article 4 (b). Could it be said
that the office of President is not entrenched? The office of President is the
chosen mode for the Executive power of the People and is a fundamental
feature of the Constitution. There is internal material corroborating this. Article
83, the entrenching Article, specifically refers to Article 30 (2). Article 30 (2)
deals with the election and term of office of the President. Such an
entrenching provision postulates the existence of the office of 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 of the basic structure of the
Constitution and is the chosen instrument for the exercise of the Legislative
power of the People. Even the exercise of the Executive power is made
dependent on it. Article 83 (b), the entrenching Article, however mentions
Article 62(2). This Article prescribes the length of the life of Parliament,
namely, six years and no more. This presupposes parliamentary rule. The
necessity for the Referendum in 1983 was to by-pass this provision by
adopting the alternate 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 can it be seriously argued that the Judicial power is
not a basic feature of the Constitution? A system of courts with the Supreme
Court at the apex, the Court of Appeal and other courts and tribunals are
absolutely necessary for the proper functioning of the Constitution and for the
due administration of justice. The Judicial power however is mentioned in
Article 4. (c), but one has to look even beyond it to other provisions to
ascertain its true nature and content. For example, the provisions relating to
the
338
independence of the judiciary, the subject's right to challenge proposed
legislation, his right to 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 removed from Article 83 The concept of fundamental rights,
the franchise etc., have extensive features and implications. Some of those
features are absolutely essential for the right, but others may well be regarded
as being inessential. There was a justifiable fear among those who framed the
Constitution that such an inclusion could lead to problems, particularly as
regards the amendment of the inessential provisions. But really those fears
were groundless. Courts have had long experience and are frequently called
upon in matters before them to decide such issues and of drawing the line
between what may be considered essential 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. Vide our rulings in 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 so
and even Mr. Fernando was not able to distinguish these cases. The question
as to the extent of the application of Article 4 however could be raised, still, in
any particular matter. It is not only Article 4 that we have often linked with
Article 3, but by the same token our rulings would cover any Article in the
Constitution which the court considers as being linked with 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 this task. The Preamble to the Constitution declares the
representatives of the People were elected
"to constitute SRI LANKA into a DEMOCRATIC SOCIALIST REPUBLIC,
whilst ratifying the immutable republican principles of REPRESENTATIVE

DEMOCRACY, and assuring to all peoples FREEDOM, EQUALITY, JUSTICE,

FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCE OF THE
JUDICIARY as the intangible heritage that Qua tees the dignity and well being
of succeeding generations of the People of SRI LANKA and of all the people
of the World, who come to share with those generations the effort of working
for the creation and preservation of a JUST AND FREE SOCIETY."
339
Again, I said earlier Article 4 spells out the concept in Article 3 the Sovereignty
of the People is organised into the three great departments of Governmentnamely, the Legislature the Executive and the Judiciary. Fundamental Rights
is again referred to in Article 4.(d). but its substantive provisions lie elsewhere.
The franchise is also referred to in Article 4 (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 a particular provision is linked with one specifically
mentioned and goes to constitute the basic structure of the Constitution, it
would be necessary to examine such provision in the scheme of the
Constitution, its object and purpose, and the consequence of its 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 can function if the fundamental rights of freedom of
speech and expression, the freedom of association, equality before the law,
and the freedom from unlawful arrest and detention are taken away? In this
connection it should be noted that fundamental rights and the franchise are
specifically mentioned in Article 3 without any limitation. The specific mention
in Articles 83 of Article 10 and 11 relating to freedom of conscience and
freedom from torture is explicable on the basis that they are considered
absolute rights which Cannot be restricted even in the interests of national
security. The protection was carried over specifically to Article 83. This does
not mean that the other fundamental rights are excluded. However they would
have to be examined individually and included only if they are considered by
court as being essential features of the Constitution and not inessential and
peripheral features.
Our Constitution is an adaptation of the Presidential type of Government
incorporating the Westminster model of the Cabinet system and
parliamentarialism of which we have had tong experience. We have
superimposed on the Westminster type of Constitution an elected Executive
President who holds office for a continuous period of six years "immune to
changes in the Cabinet or the voting in Parliament. This is to ensure the

stability of the Government. But unlike the Westminster type of Constitutions

or even the Indian Constitution, our republican Constitution, as stated earlier,
340
is a creation of the People in whom Sovereignty is vested. This Sovereignty is
exercised by the three, organs of State, including the President in the name of
the People on their mandate and as their agent. The President and the
Legislature must therefore hold that power and exercise it strictly in
accordance with the provisions of the Constitution. Article 4, which spells out
the Sovereignty of 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,
consisting of selected representatives of the People and by the People at a
Referendum
(b) the executive power of the People, including the defence of Sri Lanka,
shall be exercised by the President of, the Republic elected by the People;
(c) the judicial power of the People shall be exercised by Parliament through
courts, tribunals and institutions created and established, or recognised, by
the Constitution, or created and established by law, except in regard to
matters relating to the privileges, immunities and powers of Parliament and of
its Members, wherein the judicial power of the People may be exercised
directly by Parliament according to law;
(d) the fundamental rights which are by the Constitution declared and
recognized shall be respected, secured and advanced by all the organs of
government, and shall not be abridged, restricted or denied, save in the
manner and to the extent hereinafter provided; and
(e) 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 yeas and who, being
qualified to be an elector as hereinafter provided has his name entered in the
register of electors."
341

The President is the Head of the State, the Head of, the Executive and of the
Government, and the Commander-in-Chief of the Armed Forces. Article 4 (b)
states that the executive power of the People, including the defence of Sri
Lanka, shall be exercised by the President. As Head of State, he is vested
with both ceremonial and executive functions. In addition, as the Head of the
Executive and of the Government, he combines certain active functions of
office. He is also actively involved in 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 Ministers charged with the direction and control of the Government of the
Republic, which shall be collectively responsible and answerable to
Parliament." (Article 43 (1)). Article 43 (2) states that "the President shall be a
member of the Cabinet of Ministers, and shall be the Head of the Cabinet of
Ministers. " In this regard the President has the power of the Prime Minister
under a Westminster type of Constitution. He appoints both the Prime Minister
and the other Ministers. He assigns subjects and functions. 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 of
which the President is a component is an intergral part of the mechanism of
government and the distribution of the Executive power and any attempt to bypass it and exercise Executive powers without the valve and conduit of the
Cabinet would be contrary to the fundamental mechanism and design of the
Constitution. It could even be said that the exercise of Executive power by the
President is subject to this condition. The People have also decreed in the
Constitution that the Executive power can be distributed to the other public
officers only via the medium and mechanism of the Cabinet system. This
follows from the pattern of our Constitution modelled on the previous
Constitution, which is a Parliamentary democracy with a Cabinet system. The
provisions of the Constitution amply indicate that there cannot be a
government without a Cabinet. The Cabinet continues to function even during
the interregnum after Parliament is dissolved, until a new Parliament is
summoned. To take any other view is to sanction the possibility of establishing
a dictatorship in our country, with a one man rule.
342
Turning to the Legislative power of the People, the Constitution has prescribed
that it should be exercised by a Parliament consisting of elected
representatives of the People. It should be noted that Parliament itself is an
agent of the People. When questions on fundamental matters such as the
Sovereignty, the extent of legislative power, the power of amendment etc.

arise, there has been a divergence in approach among judges of countries

having the U. K. type of Constitution as against the American type of
Constitution. The governing factor in this issue appears to be the identification
of the source of the Sovereign power of the State. Where the mandate theory
or the principle of agency applies, courts have tended to limit the powers and
jurisdiction of the organs of, government and deny them plenary powers unlike
in the other type of case. It is interesting to find that Indian judges and lawyers
have often indiscriminately relied on decisions from both jurisdictions without
having regard to this significant difference in fundamental principles in the two
types of Constitutions. 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 no
application to our Constitution. No such theory applied to the legislatures
under the G.I. Act, 35, and the basic distribution of legislative powers between
Parliament and the State legislatures has been taken over by our Constitution
from the G. 1. Act, 35, with alterations not material to the present argument. In
any event, as we have seen, the doctrine of agency can have no application to
the members of a legislature. It is not surprising, therefore, that our
Constitution contains no provision corresponding to the 10th Amendment to
the U. S. Constitution. Therefore a resort to American decisions is not helpful
because they are based on 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 of the People is contained in Articles 75 and 76 of the
Constitution. Article 75 appears at first blush to be plenary. It vests in
Parliament the power to make laws including retrospective legislation. It
empowers the repealing or amending of any law including those of the
Constitution or adding any provision thereto.
An examination of the proviso to Article 75 and Article 76 will at once show
that there is an inherent limitation on this power and the power is not plenary.
In this connection I mean Article 76 (1) and the
343
proviso to Article 75. These limitations are not merely a procedural bar to
legislation, but they appear to denude Parliament of legislative power and
make this a field which Parliament is incompetent and incapable of entering.
This does not appear to be the only limitation on the legislative power of
Parliament. Vide also the provisions of Articles 26.(4), 36.(2) and 93. If this
view is correct, this would mean that whatever be the extent of the amending

power, the relevant parts of Articles 75 and 76 cannot be 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 and shall not set up any authority with any
legislative powers. In legal parlance alienate" means any type of dealing or
disposal. In the present context it necessarily means the transfer of its
legislative power whether whole or partial in any manner. It cannot mean
anything else. The only exception to this is the power given to the President to
make emergency legislation, which is itself made subject to sufficient control
and supervision of the Legislature. While this exception allows regulations
having the force of law to be made it is a power strictly and continuously
controlled and monitored by Parliament and which Parliament can recall at
will. It is also necessitated by the highest interest, namely for the protection of
the State in a time of emergency. Article 76 (3) states that the making of
subordinate legislation would not be a contravention of the 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 as regulations, by-laws, orders, statutes,
etc., but the one characteristic about them is that they are not and cannot be
primary legislation, which only Parliament can enact. They cannot over-ride
primary legislation, but they can be over-ridden by such legislation: If the
impugned proposed legislation, is in reality of the character of subordinate
legislation, then this case would present no problems for us.
It is submitted by the propounders of the Bill that the Statutes made by the
Provincial Councils are in fact subordinate legislation, but Mr. Fernando said
that they are of a higher quality than by-laws. But what is strange is that at the
same time they submit that all those provisions that give a parity to such
Statutes with laws passed by Parliament and the entrenchment of such Lawmaking power are consistent with that position.
344
The view that Statutes made by Provincial Councils constitute subordinate
legislation relies mainly, if not solely, on U.K. authorities. Therefore, it is
necessary to compare the legal position in Sri Lanka with those of U.K. and
other relevant countries to see the validity of that, argument.
In regard to the 'delegation' of legislative power, the U.S. has adopted one
approach and the U.K. and the Dominions another. The U.S. view is founded
on the theory of mandate which also applies to us and of the separation of
powers The position in the U.K. and Dominions is wholly different. While at

times the U.S. courts struck down all delegations of legislative power, the
current view is that delegation would be permissible where policies and
standards have been indicated by the Legislature. The U.S. courts are still
inclined to strike down delegations which are found to be "uncanalised,
Uncontrolled and vagrant".
In India, in some of the earlier cases, the Supreme Court inclined towards the
principles laid down in the American cases that delegation legislative power
was impermissible. In re Delhi Laws Act, A.I.R. 195:1 S.C. 332, the Supreme
Court held 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
legislature cannot delegate to another authority the declaration of policy and
the laying down of standards or the power to repeal legislation. These features
are considered essential characteristics of legislative powers and are non
delegable. There has been however a slight shift in 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. Papiah v. Excise Commissioner, A.I.R. 1975 S.C. 1007. In the latter
case, in adopting a little more liberal stand, the court placed particular stress
on the provisions for effective Parliamentary control including the power of
repeal, which was provided 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 adopts the view forcibly expressed in Hodge v. R. that a
,legislature entrusting important regulations to agents does not efface itself or
abdicate its legislative power. The legislature retains its power intact and can
whenever it pleases, destroy it has created and set up another, or take the
matter directly into its own hands by exercising its undoubted power to repeal,
amend or vary a statute."
345
If we are to apply the principles applicable in the U. K. or even as laid down in
a modified way by the Indian Supreme Court these decisions being clearly
applicable to our situation then even with reference to Lists Nos. I and III, any
legislation made by a Provincial Council could be struck down for lack of policy
and guidelines. The submission that this result is avoided by reason of
Parliament retaining the power to legislate on National Policy is misconceived.
The fact is that 37 items with their sub-divisions have been allocated to
Provincial Councils to legislate without providing any guidelines of policy.
Mr. Fernando relied on the first heading in List II "National Policy on all
subjects and functions and said that Parliament has reserved to itself the right

to lay down National Policy on any matter. This he says, meets the charge that
the delegated items in the Provincial List contain no guidelines. At one stage
there was a discussion as to whether the matter referred to above is an item
or a heading.
First let it be understood clearly that this item assuming it is such permits only
laying down National Policy and not legislating on the subject concerned as
such. It is very difficult to contemplate how effective this provision would be in
practice.
Let us take an example. There is item 29.1 relating to theatres, dramatic
performances, exhibition of films and public performances. Suppose the
Provincial Council snakes a law which is unpalatable to the Government and
the Government wants to lay down a policy on the matter. Suppose such a
policy statement is enacted. What is the effect of it? Since Article 154G (6)
would not apply to such a case-it applies only to the Concurrent List the policy
enactment would have no effect. 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 go to 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 "conditional legislation. One of the leading cases enunciating
this principle is hex v. Burah, [1878] 3 A.C. 829. In this case the GovernorGeneral, in the exercise of powers vested in by section 8, Garo Mills Act
(which had been duly passed by the Governor - General in Council), extended
the Act to another district.
346
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 delegate of the Imperial Parliament.
(3) In enacting that Act "the proper legislature has exercised its judgment as to
place, person, laws, powers and the result of that judgment has been to

legislate conditionally as to all those things. The conditions having been

fulfilled, the legislation is now complete.
But that is the furthest the U.K. courts have gone. In re the initiative and
Referendum Act [1919] A.C. 935, an Act contained machinery for making
laws. It provided, inter alia, that alternate to the normal procedure where the
Lt.-Governor enacted legislation, a law can be submitted to the voters and it
would come into operation on their approval. The Privy Council held that this
machinery was in effect the setting up of a different legislative apparatus than
that provided by the 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. That is not so. It retains its powers-intact
and can, whenever it pleases, destroy the agency it has created and set up
another or take the matter directly into its own-hands."
Hodge v. Rex, [1883] 9 A.C. 117;
Cobb v. Kropp, [1967] 1 A.C. 141.
Those who support the Bills have relied heavily on the U.K. law and U.K.
precedents. They however have little relevance to, our situation. Shukla, a well
known writer on the Indian Constitution, in his work has contrasted the U.K.
and the Indian 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 the eyes of law is sovereign. The British
Constitution has entrusted to the two Houses of Parliament, subject to the
assent of the King, an absolute
347
power untrammelled by any written instrument obedience to which may be
compelled by some judicial body. 'Parliament may accordingly delegate to any
extent its powers' of law-making to an outside authority. As a matter of law,
Parliament may surrender all its power in favour of another body as it actually
did in 1807 when the English and Scottish Parliament passed Acts of Union
providing for the coming into existence of a new body, Parliament of Great
Britain. The limits of delegated legislation in the English Constitution, if there
are to be any, must, therefore, remain a question of policy and not a justiciable
issue for the courts.'

This is sufficient to dispose of the Attorney-General's arguments where he

relied strongly on developments in the U.K., particularly Scotland and Wales.
He particularly stressed the case of Northern Ireland and its Act of 1920
which, as far as I am aware has hardly ever figured in formulating these Bills.
Even if Hodge's Case applies to our situation, could it seriously be said that in
relation to Provincial Councils, Parliament has retained its powers intact and
"whenever it please" it can withdraw the delegated power? Factually speaking
even the President has said recently that under the proportionate
representation scheme, no political party would be able to secure anything
more than a 'bare majority in the future.
What is described as conditional or contingent legislation is included in the
category of subordinate legislation. Conditional or contingent legislation is
described as "a statute that provides control but specifies that it is to come into
effect only when a given administrative authority finds the existence of
conditions defined in the statute". This is best illustrated in the case of Field v.
Clark, 143 U.S. 649 where the President was authorised by proclamation to
suspend the operation of an Act duly passed by Congress which permitted
free introduction into the U.S. of certain products upon his finding that the
duties imposed upon the products of the U.S. were reciprocally unequal and
unreasonable. The Supreme Court held the Proclamation valid on the ground
that the President was the mere agent of Congress to ascertain an declare the
contingency upon which the will of Congress
348
was to act was not legislative in character. It quoted with approval of the
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 law; but it can make a
law to delegate a power to determine some fact or state of things upon which
the law intends to make its own action depend."
There appears to be a clear distinction between conditional legislation and
"delegation". Explaining this difference in terminology, Seervai at page 1848
says:
"Counsel and judges in the courts below had spoken of the powers so
conferred, as involving a. 'delegation' of legislative power counsel arguing
before the Privy Council had spoken likewise. The Privy Council however
consistently upheld these powers as 'conditional' legislation or spoke of the

delegation of 'so-called legislative powers'. Kania C. J. strongly emphasized

this fact to show that the Privy Council did not uphold the 'delegation' of
legislative power. It is difficult to believe that judges and counsel spoke one
language and the, Privy Council spoke another. It is submitted that the
explanation lies in the fact that the word 'delegation' has more than one
meaning and the Privy Council did not indicate the 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 consistently spoke 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 Defence of India Act,1939) provides a means of delegation in the strict
sense of the word, namely a transfer of the power or duty to the officer or
authority defined in the sub-section, with a corresponding divestiture of the
Governor of any responsibility in the matter, whereas under s.49, sub-s. (1), of
the (G.I.) Act of 1935 the Governor remains responsible for the action of his
subordinates taken in his name"
This would explain why the word "delegate' in the collation of words may not
abdicate, delegate or in any manner alienate" in Article 45. (1) of the 1972
Republican Constitution was not retained in Article
349
6(1) of the present Constitution. Mr. Fernando and Dr. Jayewardene argued
that the deletion of the word "delegate" has now resulted in confining the
prohibition to abdication and alienation only. On the contrary the presence of
the word "delegate" would have given room to counsel to 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 submitted that the Bill does not contain an
unlawful delegation of legislative power to Provincial Councils and the
provisions in the Bill are consistent with Article 76(3). It was based on an
argument that took us back in constitutional history to the Republican
Constitutions of 1972 and even to the Soulbury Constitution.
It was his contention that the present Democratic Socialist Constitution is a
direct successor and heir of the previous Socialist Democratic Constitution of
1972. That the legislative power Parliament enjoys now is identical with that of
the previous Constitutions because the present Constitution was enacted
under the amending provisions of the previous Constitutions. He also said that

the legislative powers of the two legislations were the same and there is no
room for a 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 these provisions. Such an interpretation would be
reactionary and would mean going back not merely two decades to a
Constitution which this country rejected but to the precolonial days and to the
sixteenth century "to which he had gone in search of authority.
Although the present Constitution was enacted taking advantage of a
procedure in the 1972 Constitution, which was specifically repealed, the
present Constitution is a new one and has brought about radical changes. It is
unnecessary to enumerate the great improvements that have been introduced,
but one fact that needs emphasis is that the present Constitution is intended to
be firmly rooted in the will of the People and the power of the organs of
Government flow from the People and the organs are agents of the People
and hold their mandate. In the written submissions this position as been
conceded. See also the resounding and unequivocal declaration of the
Preamble.
350
Another erroneous view stemming from this is his contention that fetters on
the amending power of Parliament are found in federal constitutions and not in
unitary ones. If he is having in mind the U. K. "Constitution" as compared with
the Indian Constitution, such a difference could be found. But the difference
does not lie in one being unitary and the other federal; but in one being rigid
and the other flexible. The English cases interpreting the written Constitutions
of Dominions and 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 1972 Constitution. They could have no
application to the problem before us, and further I have shown earlier why the
word 'delegate' was omitted from the present Constitution in Article 76.
I have also shown earlier that the bringing into operation by a subordinate
authority of a law made by the proper legislature in prescribing a date for the
cessation of operation does not involve the exercise. of legislative power. It
only involves the determination of a fact or state of things upon which the law
will come into operation or cease. This is the true effect of-the provisions of
clauses (a) and (b) of Article 76. These powers are subordinate in nature and

cannot be 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 with particular reference to the provisions
of, Article 154G(2) and (3) that once the legislative power is referred back to
the People the 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 from a failure to understand the basic
principles that underlie constituent and legislative powers and the power of
amendment, the limitations of manner and form in a Constitution that has
rigidity.
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.
351
Having regard to the wording of Article 76(1)-and there is a similar concept
elsewhere (vide proviso to Article 75) it is possible to argue, (and it was
touched upon but not developed), that these provisos go to the very
competence of Parliament. It is a limitation on the legislative power marking
out its range and extent. If this position is correct no legislation even by a twothirds 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 the hearing, namely, that since Article 4(a) states
that the legislative power of the People shall be exercised by the Legislature
and the People and any law that would provide for a Referendum would not
violate the constitutional provisions, since Sovereignty is in the People and an
appeal to the People can never derogate from that Sovereignty. As it was said
in the course of the argument, the People as a rabble cannot exercise the
legislative power of the People. It must be the People at a Referendum
following the proper constitutional procedure. Such a Referendum must arise
from a situation where the constitutional procedures have been, faithfully
followed and not in spite of them. Where there are violations of the
Constitution, it is no argument to say that all that would be covered by reason

of a provision for a Referendum. Such a misconception is due to the failure to

distinguish clearly between the original constitutional power, the amending
power and the power of ordinary legislation, and the form and manner of
exercising legislative power. In a rigid Constitution the composition of
Parliament and the procedures must be distinguished from the area power.
"The law existing for the time being is supreme when it prescribes the
condition which must be fulfilled to make a law But on the question what may
be done by a law so made, Parliament is supreme 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
352
(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.
Regarding the last item, I wish to state that what Parliament has sought to do
is place the legislative powers of Provincial Councils as far beyond its reach
as possible. While a Provincial Council with a simple majority can legislate on
those matters, Parliament which originally had this power of legislation and
which it could have done by a bare majority has now prescribed not merely the
need for a two-thirds majority but the addition of a Referendum too. This is
undoubtedly a renunciation and alienation of its plenary powers over
legislation. This indicates that the new legislative structure is placed on a par
with the most basic features of, the Constitution.

In Article 76 (1) the injunction is in any manner alienate". Both a temporary

alienation and a permanent alienation fall within this prohibition. So does an
alienation of a part or the whole On this analysis one could not but come to the
conclusion that what is sought to be granted to a Provincial Council is riot the
type of conditional legislation mentioned in Article 76 (3) (a) or (b), but fullblooded legislative power:
Applying the ordinary principles of interpretation, if any, "delegated" legislation
is not saved by the exceptions in subsections (2) and (3) of Article 76, such
exercise of legislative power has necessarily to fall within the prohibition
contained in Article 76(1). Such an exercise of legislative power is
impermissible in the face of Article 76(1) and would be void.
Next the judicial power of the State may be considered. Although it is not
specifically mentioned in Article 3, it is one of the powers of Government and
spelled out in Article 4(c). Justice and the Independence of the Judiciary are
also mentioned in the Preamble as the intangible heritage that has helped the
creation and preservation of a just and free society. We have, as stated
earlier, in previous determinations held that any interference with the judical
power would require the special procedure required by Article 83 and involve
the approval of the People at a Referendum.
353
The other feature of government that requires mentioning here that, would
require the special, procedure set, out in Article 83 is any interference with the
franchise. Vide SD. 5/80 where we, held that a Bill that affected the franchise
cannot be passed without approval by the People at a Referendum.
The Indian Constitution provides for a federal structure with a strong centre.
The Indian proposals acceded to by us Clearly indicate a shift in views, no
doubt under pressure tilting the scales in favour of the Tamil demands for
autonomy. In fact some of those proposals go beyond what is found in the
Indian Constitution and is intended to give even a greater autonomy to the
Provincial Council than that obtaining to the States in India. All the proposals
of the Indian Government go to reinforce the position of Provincial Councils,
extend its powers and entrench its legal structure. With this background
indicating the strong pressures for taking the federal Indian Constitution as a
model, let me now proceed to an examination of the Thirteenth Amendment
and where necessary the Provincial Councils Bill which is supplementary to it.
Dr. Jayewardene who appeared for His Excellency supporting the Bill traced
with his usual thoroughness the historical background regarding the evolution
of the present Provincial and administrative units from the time of the cession

of the Kandyan Kingdom. He also brought to our notice material from the late
colonial period showing suggestions and even agitation for regional
administration. In 1926 Mr. S.W.R.D. Bandaranaike, at the beginning of his
political career, had advocated a system of federation for administrative
purposes. The Kandyans had suggested three regional units in which, as my
brother observed, the Muslim community had been overlooked.
It would appear that with the dawn of independence the thinking of the
politicians underwent radical change. When faced with the task of winning
elections and running a government, and with realities and practical problems,
it is natural that nearly all of them had to adapt themselves to the changing;
situations in the interests of the country and for their own political survival and
future. So we see many of them going back on their views on many important
issues, some completely reversing the opinions they had held earlier.
I do not think that we could attribute any, great importance to any particular
statement or to any particular individual in this regard. But that material is
helpful as indicating a line of development making for
354
greater decentralising of the administration which has found expression in
Article 27(4) of the Directive Principles of State Policy in Chapter VI of the
present Constitution.
Dr. Jayewardene developed another line of argument which was most
interesting and sought to blend it with the above. The provision in the Directive
Principles, he said, goes back to a similar provision in the 1972 Republican
Constitution which was based on Marxist thinking. The decentralisation of
administration and the granting of regional autonomy is a phenomenon of
Marxist States. He referred to the Constitutions of the Peoples Republic of
China, Mongolia and Rumania to illustrate this. Dr. Jayewardene submitted
that this was the genesis of the. Sills and made no reference to the Accord,
which incidentally is referred to in the Provincial Councils Bill.
Dr. Jayewardene next went on to examine item by item in List No. 1, which is
the Provincial Council List. He submitted that there is nothing of any national
importance included in that list but they all related to matters of a regional
nature, properly entrusted to a regional authority.
While I can agree with Dr. Jayewardene with regard to most of those items,
there are a few which do not appear to fit into the pattern outlined by him.
Further, the list cannot be considered in isolation without having regard to a

number of other features in the Bill which affect the Constitution on basic
matters. I have dealt with most of these matters elsewhere. Briefly the position
to be that, in spite of all the good intentions of the Government we have to
decide the legal question as to the extent of the powers, both legal and
executive, which have been devolved on Provincial Councils and whether that
has the effect of making them so autonomous as to derogate from the unitary
character of our Constitution. All those matters are dealt with In the rest of my
order.
But, before I proceed, a few words may be said about the Directive Principles
of State Policy; relied on by Dr. Jayewardene, Mr. Fernando and Mr. Choksy,
355
Much stress was laid on the Directive Principles of State Policy. Chapter VI by
most counsel supporting the Bill. They rely in particular on Article 27(4), which
states that"The State shall strengthen and broaden the democratic structure of
Government and the Democratic rights of the People by decentralising the
administration and by affording all possible opportunities to the People to
participate at every level in national life and in government."
It may be observed that this refers to the decentralisation of the administration.
It does not mean the decentralisation of power or the government. It cannot
possibly be interpreted to derogate from other provisions of the Constitution. In
fact Article 29 makes this clear. These rights are not justiciable and confer no
rights or impose no obligations. Besides, some of these. provisions overlap
and even contradict each other Vide Article 29(3).
While the Indian Courts have leaned on these principles to resolve matters of
doubt, I do not think that they should have any controlling effect on any
provision of the Constitution. These Directive Principles are really ethical or
moral principles to guide the State. If any kind of legal importance is to be
given to them, this would make the constitution unworkable. Seervai on a
critical analysis of the Chapter on Directive Principles and the Indian case law
confirms this view. Vide. Seervai, pp. 1577-1695.
Mr. Goonesekera in his reply stated that the emphasis and reliance placed on
Article 27(4) is unjustified because the actual reason for these Bills lies,
elsewhere and is clearly mentioned in the Bills themselves. They have little
connection with Article 27(4).

A considerable portion of time was spent in the arguments in unravelling the

somewhat unusual two sentences that are at the head of the new Chapter
XVIIA. It was in the absence of an appropriate term called for convenience,
the Preamble. It is not numbered. Mr. Mark Fernando who supported the Bills
conceded that it seeks to give precedence to this new Chapter over all the
other provisions of the constitution except the entrenched Articles. He also
submitted that this is a pure and simple interpretation Article and pointed to
other articles such as Article 82(6), 84(3) and 26(6) to show that such a
provision is consistent With the constitutional provisions.
356
After the, ingenuity of counsel was exercised on, this provision, it appears to
emerge that this provision, is both contradictory and misconceived. By seeking
to give it a preferred status it contravenes the guarantees and protections
given in the Constitution. It is stated to be subject to the Constitution but is
meant to override the very constitutional provisions. It contravenes the
provisions of Article 83. This Provision is not a defining or exclusion Article like
the Articles relied on in support of it, but an interpretative Article. Here the
Legislature has indicated to court how a conflict of law, namely contradictory
provisions of the Constitutions should be decided. This is an exercise of
judicial power. Its purpose seems to be to avoid the Bill going before the
People at a Referendum for approval. How misconceived the provision is, can
be seen by the fact that such a provision can never properly appear in a Bill
because we are empowered in the exercise of our constitutional power to
decide this very question. The question cannot be foreclosed without repealing
our judicial power.
This unnumbered Article which begins Chapter XVIIA recites the Article
mentioned in Article 83. But Supreme Court decisions and determinations
have interpreted some of these provisions so as to include certain other
provisions and features of the Constitution, for example the Judicial power is
not mentioned in the above specified Articles. There are also, as indicated
earlier, a number of other features and concepts that go to ensure the
Sovereignty of the People. There is the Cabinet system of Government, the
question of the content and limits of the legislative power and the power-of
delegation. None of these Articles and features would be included on an
ordinary and literal reading of the above amending provision. But according to
the interpretation placed on the relevant provisions by the Supreme Court;
Articles 1, 2 and 3 would incorporate by inference all these features.
In view of the above circumstances; a literal reading of the words of the
opening paragraph but save as aforesaid nothing contained in the Constitution
or any other law in force on the date on which this Chapter comes into force

shall be interpreted as derogating from the, provisions of this Chapter do hot

reflect the legal position accurately. It is a misleading statement. On a literal
reading and without reference to the Supreme Court decisions. one can come
to the conclusion that the constitutional provisions and features of a
fundamental nature
357
which are linked to those Articles though not specifically mentioned are being
sought to be amended without adopting the special procedure indicated in
Article 83. If the literal meaning has to be given to this clause, then this would
amount to an amendment or repeal of a provision relating to the Sovereignty
of the People and would require the approval of the People at a Referendum.
Further, if the paragraph is intended to preclude the exercise in interpretation
which is solely vested in the Supreme Court, this involves also an unlawful
interference with the judicial power.
Article 15A provides for the establishment of Provincial Councils consisting of
elected members for the nine Provinces specified in the Eighth Schedule.
Sub-section (3) of Article 154A enables Parliament by law to provide for two or
three adjoining Provinces to form one administrative unit with one elected
Provincial Council. This is connected to section 37, of the Provincial Councils
Bill and would be dealt with later
Each Provincial Council is an administrative unit duplicating more or less a
Cabinet system of Government a Provincial Council and a Governor as its
head. These provisions follow close the pattern and provisions of the Indian
Constitution in its relation to the States except for a few variations.
We may properly begin with the Governor. Article 154B states that he shall be
appointed by the President by warrant under his hand and shall hold office in
accordance with Article 4 (b) during the pleasure of the President. This is not
an appointment but a de-routing or relinquishing of the Executive power
committed to the President and is illegal. The Governor has the usual powers
of summoning, proroguing and dissolving the Provincial Council as in a
Westminster type of Constitution.
The Governor's Executive power is co-extensive and coterminous in breadth
with the law-making power of the Council- Article 54C. This Provision is not a
defining or exclusion Article like the Articles the area, of the concurrent
powers, He has to act on the advice of the Board of Ministers except in
relation to his limited discretionary powers. The Board of Ministers is headed
by a Chief Minister and consists of not more than four other Ministers, all of

Whom are appointed by the Governor on the advice of the Chief Minister.
Article
358
154C states that the Executive power of the Governor shall be exorcised
either directly or through Ministers of the Board of Ministers or through officers
subordinate to him in accordance with Article 154F.
It is evident from the brief provisions relating to the Governor that he is an
officer to whom the Executive power of the People is purported to be directly
delegated. (use the word "directly" also in another sense, for if it is considered
as an appointment by the President, this delegation has by-passed the
existing Cabinet machinery. If the Cabinet system is fundamental to our
system of government, then this delegation end relationship between the
President and the Governor both ways is wholly illegal. It violates a basic
feature of our Constitution, namely, government with the aid of the Cabinet
and Parliament. Such a fundamental change can only be effected by a Bill
passed in terms of Article 83, with the approval of the People at a
Referendum. Again, Article 154H (4) which vests the President with a
discretion in deciding whether or not to refer a question of the validity of a
Statute of the Provincial Council to the Supreme Court is the vesting of a
discretion regarding the exercise of judicial power. It is in effect an exercise of
judicial power by an executive officer. This also makes the Bill inconsistent
with the Constitution, requiring that it be passed in terms of Article 83. If, as
indicated earlier, the procedure indicated in Article 154H (4) is the only
permitted procedure for challenging the validity of a Statute, then the position
can be much worse, because the entire constitutional jurisdiction of the
Supreme Court has been repealed.
It is also possible to regard the purported delegation of power by the President
to the governor to be illusory and spurious. The President exercises the
Executive powers of the State as an agent or trustee of the People. Although
he is permitted to delegate it to the Cabinet and subordinate public officers, I
do not think he is authorised to alienate or abandon or renounce it. In reality
this is what is sought to be done in this case. The Governor to whom the
Executive power in the Province in delegated is an appointee of the President
and can really exercise on his own behalf or on behalf of the President only
the, discretionary powers vested in him and not the larger powers purported to
be vested in him.
359

In regard to the substantive Executive powers falling to the lot of the governor,
these constitute decisions of the Board of Ministers which he is bound in taw
to accept and sanction He has no choice and is given no discretion in the
matter, The Chief Minister and the other Ministers are no doubt also appointed
by him acid even in this instance Article 154F(4) shows that where the party
system operates and a party obtains a majority in the Provincial Council
elections, the governor has no option but to appoint the leader of that political
party as the Chief Minister and his nominees as the other Ministers. These
appointments are in fact non-governmental appointments and the Governor
merely sanctions what the law has provided for. The Legislature cannot
exercise the Executive power either. So in reality, the substantive Executive
power exercised in a Provincial Council emanates and is created from below
and does not in fact constitute a devolution of power coming from above from
the President. The executive, power relating to a Provincial Council is
therefore broken at a dividing point, one purporting to devolve from the
President and the other arising. from the elected members of the Provincial
Council The effect of this is that such executive power vested in the President
is relinquished and a complex arrangement devised to cover up and cloud, the
real nature of the transaction. If the Executive power of the People can be
renounced in this manner," serious questions regarding the proper
administration? of the country could arise. At the bare minimum, legislation
permitting such a renunciation must have the approval of the People at a
Referendum. Mr. Gunasekera presented his argument on somewhat the same
tines, but preferred to describe it as a sharing of the Executive power, with
non-governmental authority which is contrary to the Constitution.
A provincial Council consists of a specified number of elected members. There
is special provision for an existing member of Parliament of an electorate
failing within the area of a provincial Council to participate and vote at a
meeting on a resolution of the Provincial Council. Such a provision affects
both the franchise and the equality provision doubly so if the Northern and
Eastern Provinces become one unit.
A provincial Council is vested with Legislative power. It is empowered to enact
statutes applicable to the province with respect to specified matters. These are
set out in List No. I the Provincial Council List set out in the Ninth Schedule
Article 154G.(1).
360
Article 154G (7) states that a Provincial Council shall have no power to make
statutes on any matter set out in List II called the Reserved List. This list was
embodied in consequence of the proposal contained the Draft Framework of
Accord and Understanding initiated on 30.08.1985 and repeated later on 23rd

September 1986 that for the removal of doubts, the subjects and functions that
would be exclusively reserved for Parliament are specified in Annexure II". So,
in effect, We are left with two exclusive lists and a third Concurrent List.
List No III is called the Concurrent List. Article 154G.(5)(a) states that
Parliament can make laws with respect to matters in this list "after such
consultation with all Provincial Councils as Parliament may such consider
appropriate in the circumstances of each case. Similarly, Article 154G (5)(6)
states that a Provincial Council can make law in respect of such matters "after
such consultation with Parliament as it may consider appropriate in the
circumstances of each case". It is difficult to understand what is meant by
consultation with Parliament It can only mean a resolution of Parliament by a
majority vote in the result the powers of Parliament can be eroded and such
powers given to, a Provincial Council on a mere majority vote. The wording of
the two Article's is identical n substance and quality and gives a parity to the
two authorities as regards law-making power and places a fetter on
Parliament's plenary power, of Legislature, because this is a condition
precedent to the exercise of legislative powers.
It has been sought to entrench this division of legislative power and to give it
permanency and put it beyond constitution al amendment by requiring the rigid
procedure of a Referendum. Here too would be observed the fettering of the
plenary law-making powers of Parliament the adoption of a procedure.
involving the consent of persons and authorities outside Parliament before
passing a law. But more significant is the requirement for a Referendum.
Article 1546 (2) states that a Bill for the amendment or repeal of the Thirteenth
Amendment or the Ninth Schedule cannot be passed unless (a) referred by the President before it is placed on the Order Paper of
Parliament to every Provincial Council,
(b) every Provincial Council agrees to the amendment or repeal
361
Where one or more Provincial Councils do not agree, it has to be passed by a
two-thirds majority and approved by the People at a Referendum.
Article 154G(3) contains a similar provision prohibiting Parliament from
passing any Bill in respect of any matter set out in the Provincial Councils List.
Here too, if any one Provincial Council disagrees, it will have to be passed by
a two-thirds majority and approved by the People at a Referendum.

Mr. Mark Fernando and Mr. Crossette Thambiah tried to make out that the
vice, if any, in this provision is the requirement of a Referendum. It was also
suggested that such a requirement was legally valid, because it was within the
competence of Parliament. They gave the example that a Bill enacted by a
special majority of 2/3 could entrench itself further with a requirement that it
could only be amended by a 3/4 or 5/6 majority. If such a thing is possible then
the result-would be to alter the particular structure of the Constitution now
existing, which the People have given to the country it is the People who can
re-structure he Constitution, not one organ of the State like the Legislature.
The Legislature can only amend the Constitution according to the terms of the
Constitution and, since such an exercise involves the amending power, it
cannot be done in the manner suggested.
To illustrate this further, can a Bill which is passed by only a two-thirds
majority (and where the background material shows that very effort has been
made to refrain from having it passed by way of a Referendum) prescribe that
it can be amended or repealed by a procedure of greater rigidity, namely, by
way of Referendum. In simple terms, can a Bill, for example passed as
ordinary legislation by a bare majority, prescribe that it could be repealed or
amended only by a two thirds majority? Surely not if it were otherwise, this
would mean that the structure of the amending power and the legislative
power Now existing (which are part and parcel of the basic structure of the
Constitution and upon which, a number of provisions, both of fundamental
nature and otherwise; have been framed) would undergo immediate
transformation, radically altering the structure and nature of the present
Constitution. It is also indeed strange to find that at the same time a few
provisions of this Thirteenth Amendment, which is sought to be entrenched,
are permitted to be amended or affected by ordinary legislation enacted by
parliament or even by Order of the President. Vide List No.1 and Schedules.
362
But the most important objection to the provisions of Article 154G (2) and (3) is
the attempt to add it to the provisions of the entrenching Article 83. As Mr.
Goonesekere and Mr. Iriyagolle submitted, the argument that this cannot be
done except by a two-thirds majority and with the approval of the People at a
Referendum; is unanswerable.
With the division of the Legislative power, it is natural that provision would
have to be made for resolving conflicts between statutes made by a Provincial
Council within its domain and laws whether already existing or subsequently
made by Parliament. The problem becomes one of great delicacy when this
overlapping takes place in regard to matters in the Concurrent List. We find
the following provisions for the resolution of such conflicts:

Article 154G (6).-This is a general provision and the effect of this is that a
Provincial Council must confine itself to matters in its list and if it were to make
a statute which is inconsistent with a law otherwise made in accordance with
the Provisions of the Thirteenth Amendment, i.e. List III, the Provisions of the
law would prevail.
Article 1 54G (8).-This deals with a conflict between a Statute of a Provincial
Council and an existing law in regard to a matter on the Provincial Council
List. This subsection states that that law will so long only as that Statute is in
force remain suspended and be inoperative within that Province".
Article 154G (9) -Similarly, this deals with a conflict between a Statute made
by a Provincial Council and an existing law in regard to a matter on the
Concurrent List. This provision states "that law shall, unless Parliament by
Resolution decides to the contrary, remain suspended and be inoperative
within that Province ......
There appears, however, to be no provision for the case of a conflict between
a Provincial Statute made under List I being inconsistent with a law newly
enacted by Parliament under its powers re List ll. It would be noted that Article
154G (6) applies only to the conflicts with the Concurrent List.
These Provisions give an insight into the nature and quality of the legislation
made by Provincial Councils. Could there be any doubt that Statutes made by
Provincial Councils have the dignity and quality of
363
primary legislation. There is no way to regard them as subordinate legislation.
There are a number of other provisions in this Thirteenth Amendment
corroborating this view. Vide Articles 154G(4), 1541(b), 154M and 154S.
I do not think that it can be seriously contended that the provisions of Article 154G (10) negative this. This subsection is worded as follows:
"(10) Nothing in this Article shall be read or construed as derogating from the
powers confined in Parliament by the Constitution to make laws in accordance
with the provisions of the Constitution (inclusive of this Chapter) with respect
to any matter for the whole of Sri Lanka or any part thereof."
If it were not for the words bracketed, this provision could have, to a great
extent, preserved the plenary legislative power of Parliament. The bracketed
words however make it clear that the legislative power has now to be

exercised having regard to and in the manner now provided by the Thirteenth
Amendment. This would be strictly on the basis of the Lists. The ultimate
effect of this provision is to confirm the division of the legislative power and at
the most emphasise the island-wide legislative powers of Parliament in
respect of other matters, e.g. We Article 154G (11), 154L. Vide List II item "All
Subjects and Functions not specified in List I or List ill including ...., which
means that any subject or function not specified in the list would be
considered as a power of the central Parliament.
There could be discrimination in regard to the franchise, where only some
members of Parliament may be granted the right of participating and voting at
meetings of the Provincial Councils. The right and privilege of some members
of Parliament are devalued as against other members by reason of two or
three Provinces (especially in the case of the interim arrangement for the
North and East) being constituted into one administrative unit. The right of the
franchise means the right to exercise that right on terms of equality with others
and that right of equality must be carried over also to those members of
Parliament so elected. In the result, one voter or member of Parliament is
afforded a greater right than another. Clearly in the instance mentioned, the
two situations are not identical and equal. Both the franchise and the essential
fundamental right the right of equality have been contravened. An amendment
of this nature can only be passed by a two-thirds majority and the approval of
the People.
364
Article 9 states that The Republic of Sri Lanka shall give to Buddhism the foremost place and
accordingly it shall be the duty of the State to protect and foster the Buddha
Sasana while assuring to all religions the rights granted by Articles 10 and
14(1)(e).
This entrenched Article enjoins the State to
(a) give to Buddhism the foremost place;
(b) to protect, and
(c) foster the Buddha Sasana;
(d) assure to all other religions, the rights contained in Articles 10 and 14.
(1)(e).

The expression Buddha Sasana" was advisedly substituted for the word
"Buddhism" which was used in the corresponding Article of the 1972
Republican Constitution. The new expression is a compendious term
encompassing all ancient, historic and sacred objects and places which have
from ancient times been or are associated with the religious practices and
worship of Sinhala Buddhists. This court has in an earlier case expressed
such a general opinion. There is no dispute that the 276 places and sites
shown in the Archaeological Map produced are of this category, except that
Dr. Jayewardene said that a few of them could be non-religious sites and
others may be in private hands.
It has been submitted by a number of Buddhist institutions and persons that
the result of this legislation would be to place such holy places, too numerous
to mention, under the control of the Provincial Councils. Apprehension is felt
about the fate of these places in the Provincial Council intended for the
Northern and Eastern Provinces.
In the written submissions filed by the Y.M.B.A., it has stated (para. 9)...........that during the period; of nearly two decades immediately precedingthis date there has been a studied and sedulous campaign by anti-Sinhala
elements to obliterate all traces of places of ancient Buddhist worship in these
two provinces.
365
There is documentation provided in respect of two such place s. in the Report
of the Presidential Commission, chaired by retired Chief Justice M. C.
Sansoni, this complaint was inquired into and it had occasion to observe that
(page 293)"The widespread damage done to temples and sacred places during the
disturbances and for some time prior to 1977 has revealed the need for early
action to be taken by the Police and all the appropriate Government
authorities to prevent a grave situation arising. It has been shown that
complaints made to the authorities over the damage done to Bo-trees at
Trincomalee and Kilivedy went unheeded until those trees were completely
destroyed. It is to the credit of the adherents of Buddhism-that they exercised
restraint in the face of grave provocation:"
In the Provincial Councils List No.1, item 25:2 is as follows :-

" Ancient and historical monuments and records other than those declared by
or under law made by Parliament to be of national importance."
The Reserved or the Central List. No. 11 contains the following entry:
"National Archives, Archaeological Activities and Sites and Antiquities
declared by or under any law made by Parliament to be of National
importance."
This would include
"ancient and historical monuments and records and archaeological sites and
remains declared by or under law, made by Parliament to be of national
importance."
We also see the following entry in the Concurrent List No. III:"Archaeological sites and remains; other than those declared by or under any
law made by Parliament to be of national importance: -"
It is apparent that there is considerable overlapping in these items and what
counsel said that the Lists will prove to be a lawyer's paradise, is born out
when we look at examples Such as this. Mr. Mark Fernando conceded that
these provisions need clarification to allay the fears of the Sinhala Buddhists
Dr. Jayewardene also conceded the responsibility and the duty of the State
under Article.9 in this regard which he submitted remain unaffected.
366
Be that as it may, upon the enactment of this legislation, Provincial Councils we are concerned particularly with those in the Northern and Eastern
Provinces would be empowered to legislate in respect of those shrines. These
lists are entrenched. Up to now Parliament has not declared any one or more
of these places to be of national importance. There is no indication that this is
being done and even if so, which of those shrines and how many would come
under such protection.
What is before us now is the existence of a power in a Provincial Council to
make statutes for those shrines and places of worship When such statutes are
enacted, they would suspend and make inoperative existing law-Article
1546(8). Also it could lead to a contradiction in the application of the
Provisions of Article 1546(3) and Article 1546(7). If Parliament thereafter
seeks to legislate in respect of the above item, the provisions of Article

154F(3) make either the consent of all the Provincial Councils or a

Referendum imperative. Thus for all practical purposes, these places would be
at the mercy of Provincial Council legislation.
The result of these provisions is, if not a temporary abdication or alienation of
its legislative power, almost a permanent one. In another connection I have
referred to the fettering of Parliament's power of legislation even in respect of
what it always freely had, with no corresponding restraints on the power of
Provincial Councils, but actually enhancing their powers.
So far I have dealt with one aspect of the power of the Republic, namely the
Legislative power. What of the Executive power? As stated earlier, the
Executive power exercisable by a Provincial Council is coterminous with its
powers to make statutes and this could include items in List ill too. The
guarantee contained in Article 9 is given by the Republic of Sri Lanka. Mr.
Iriyagolle submitted, as an additional argument on Article 9, that when the
power of the Republic is dispersed among eight or nine near autonomous
Provincial Councils, the Republic would be in no effective position to enforce
its guarantee. This would apply to the exercise of all Executive power.
A further argument was addressed to us with reference to Article 2. Article 2
states that 'the Republic of Sri Lanka is a unitary State'. It was submitted that
there is a contravention of this Article, and since it is one of the entrenched
Articles, the Bill has to be passed with the consent of the People at a
Referendum.
367
We have earlier dealt with the violation of certain other entrenched Articles or
Article considered to be entrenched. The intention, purpose and the effect of
some of the Articles in the Thirteenth Amendment is to create or facilitate the
creation of a separate entity of administration and government in the Northern
and Eastern provinces as one unit. While the present submission is supported
by those factors, it is not necessarily dependent on it. It requires separate
consideration on its own merits.
The Provisions so far examined reveal(a) the conferment of real legislative power on Provincial Councils;
(b) Statutes made by Provincial Councils are given pre-eminence if not parity
with laws made by Parliament;

(c) the taking away of Parliament's right to legislate on certain fields

(d) the fettering of the legislative power of Parliament;
(e) the attempt to entrench the provisions of the Thirteenth Amendment;
(f) the abandonment or renunciation of the Executive power in respect of the
Provinces or the sharing of it with unauthorised authorities who would
administer such Provinces.
(g) the by-passing of the Cabinet system of Government which is "charged
with the direction and control of the Government of the Republic".
The following are considered tote factors of the federal principle:
(a) The existence, of "a federal situation", i.e. a secessionist movement.
(b) The presence of easily definable geographical units definable by physical
features, or in terms of racial, linguistic or cultural factors.
(c) The existence of two systems of government.
(d) The distribution of the, powers of government usually in the classic mode
of Lists
(e) Rigidity in the constitutional structure with limitations on amendment:
(f) An authority to decide questions of respective competency between the
Centre and the periphery. This role is traditionally by the highest courts which
claim an independent position.
368
From the two foregoing paragraphs it would be observed that nearly all these
features can be said to be present in the present case. Since here is a factual
aspect to this submission; it is necessary to refer or briefly to items (a) and (b)
of the preceding paragraph in a little more detail.
As far as the modern period is concerned, the demands of the Tamil people
for self determination and a separate state can b e traced officially to the
Trincomaiee Resolution of April 1957 of the so called Federal Party, whose
real name is the Ceylon Tamil State Party which is an exact translation of its

Tamil-name Illankai Tamil Arasu Kadchi. This Resolution which was termed
the First Resolution ran as
" Inasmuch as it is the inalienable right of every nation to enjoy full political
freedom without which its spiritual, cultural and moral stature must degenerate
and inasmuch as the Tamil Speaking People in Ceylon constitute a nation
distinct from that of the Sinhalese by every fundamental test of nationhood
firstly that of a separate historical part in this lsland at least as ancient and as
glorious as that of the Sinhalese, secondly by the fact of Their being a
linguistic entity different from that of the Sinhalese, with an unsurpassed
classical heritage and a modern development of language which makes Tamil
fully adequate for all present day needs and finally by reason of their
traditional habitation of definite areas which Constitute one-third of this island,
the first National Convention of the I.T.A.K. demands for the Tamil Speaking
Nation their inalienable right to political autonomy and calls for a plebiscite to
determine the boundaries of the linguistic states in consonance with the
fundamental and unchallengeable principle of self-determination."
The claim for the Northern and Eastern Provinces considered as the
"traditional homeland" (for which there is little evidence-vide the historical
material mentioned in petition No. 19/87 and the Map prepared by the
Department of Archaeology annexed to petition No.8/87), the so-called
settlement of Sinhalese in the colonisation schemes under the major irrigation
works, and the government policy on education have been the source of
grievance of the Tamil people.
Political claims and demands led to political agitation and finally to and an
armed secessionist movement. The Government as we know, has made every
reasonable effort to solve it politically and
369
not to find a military solution. It is unnecessary to through all the various
stages of negotiations which have taken place in recent years. I shall confine
myself to what is only relevent for this determination.
As early as September 1985 the mechanism of Provincial Councils had been
proposed. In the Draft Framework of terms of Accord and Understanding of
30.08.85, it was stated that "5. A Bill for the .amendment of the Constitution to enable he creation of
Provincial Councils and the devolution of powers of them shall be enacted by
Parliament by a 2/3 majority. Thereafter Parliament will pass an Act directly

conferring on the Provincial Councils the requisite legislative powers. Such

power shall not be revoked or altered in any mariner except by an Act of
Parliament passed by a two-thirds majority after' consultation with the
Provincial Council or the Councils' concerned."
The next development was further talks held between the Sri Lankan
Government and an Indian delegation led by, Hon P Chidanbaram, Minister of
State, in July 1986. Based on those talks a detailed Note containing
observations on the proposals of the Sri Lanka Government as the Framework
was sent to the Indian Government The following three paragraphs of the Note
are relevant for the purpose of this determination:1. A Provincial Council shall. be established in each Province. Law-making
and Executive (including Financial)., powers shall be devolved upon the
Provincial Councils by suitable constitutional amendments, without resort to a
referendum. After further discussions subjects broadly corresponding to the
proposals contained in Annexe 1 to the Draft Framework of Accord,. and
Undertaking of 30.08.85, and the entries in List ll and List III of the Seventh
Schedule of the Indian Constitution shall be devolved upon Provincial
Councils.
2. In the Northern Province and in the Eastern Province the Provincial
Councils shall be deemed to be constituted immediately after the constitutional
amendments come into force........
7. Any amendments to the constitutional provisions or any other laws
providing for, devolution, of legislative and executive (including financial)
powers shall require a 2/3 majority as provided in the present Constitution.
Any further safeguards for example a further requirement of a referendum may
also be, discussed."
370
In a preamble to this Note it was agreed that suitable constitutional and legal
arrangements would be made for those two Provinces to act in co-ordination.
In consequence of these talks a constitutional amendment took shape and
form and three lists(1) The Reserved List (List II);
(2) The Provincial List (List I); and
(3) The Concurrent List (List Ill) too were formulated.

The next stage of the discussions were the. Bangalore discussions between
our President Jayewardene and Prime Minister Rajiv Gandhi in November
1986. The Agreement between them recognised that the "Northern and
Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil
speaking peoples who have at all times hitherto lived together in the territory
with other ethnic groups. According to these discussions Sri Lanka agreed that
these two Provinces should form one administrative unit for an interim period
and that its continuance should depend on a Referendum and it was also
agreed that the Governor shall, have the same power's as the Governor of a
State in India. It was also proposed to the Sri Lanka Government that the
Governor should only act on the advice of the Board of Ministers and should
explore the possibility of further curtailing the Governor's discretionary powers.
The Indian side also proposed that provision be made on the lines of Article
249 of the Indian Constitution on the question of Parliament's power to
legislate on matters in the Provincial list and likewise that Article 254 of the
Indian Constitution be adopted in regard to the Provincial Council's power to
make a law before or after a parliamentary law in respect of a matter in the
Concurrent List. The Sri Lanka Government's observations on the Working
Paper on Bangalore Discussion dated 26th November 1986 show that the
suggestions made by the Indian Government were substantially adopted.
On the 29th July 1987 an Accord was signed by our President J1 R.
Jayewardene and the Indian Prime Minister Rajiv Gandhi in Colombo. The
First part of this Accord reaffirmed what was a greed at Bangalore that the
Northern and Eastern Provinces have been areas of historical habitation of Sri
Lanka Tamil Speaking people who at all times hitherto lived together in the
territory with other ethnic groups. It also provided for these two Provinces to
form one administrative unit for an interim
371
period and for elections to the Provincial Council to be held before 31st
December 1987. The Second Part was the Annexure to the Agreement. It
provided, inter alia, for a Indian Peace Keeping Contingent and for Indian
observers at the Provincial Council Elections and a Referendum to be held in
the Eastern Province to determine whether the Northern and Eastern
Provinces should continue as one administrative unit. The legislation now
tabled in Parliament is in terms of this Accord. Of course, an attempt is now
being made to take shelter under Article 27 (4).
With this background, let me once again comment on the Bills. Article 154A(3)
makes provision for Parliament to make law for two or three adjoining
Provinces to form one administrative unit. The two Provinces would form one
Provincial Council. Such law would also provide the manner for determining

whether such provinces should continue to be administered as one

administrative unit or whether such Province should constitute a separate
administrative unit.
The law to be made by Parliament is the Provincial Councils Bill before us.
This must be viewed as an ordinary piece of legislation and it cannot be
dignified to the status of a constitutional amendment. This legislation depends
on the Thirteenth Amendment for its validity arid existence. If the Thirteenth
Amendment is invalid, as I have earlier held, this law too falls with the
Thirteenth Amendment. Section 37 with the marginal comment "Interim
provision" states that the President may by Proclamation declare that any two
or three adjoining Provinces shall form one administrative unit with one
Provincial Council.
Although it has been submitted that section 37(1) does not refer specifically to
the Northern and Eastern Provinces, having regard to the historical
background, the contents of the recent negotiations show, without a shadow of
doubt that this was designed specifically with the problem of the Northern and
Eastern Provinces in mind. If any corroboration is needed, we see a specific
reference to these two provinces in section 37(1)(b) and section 37(3). These
provisions refer to 29th July 1987, the date of the Accord. It deals with the
surrender of arms, weapons and military equipment, held by the terrorist
militants whose objective was "the establishment of a separate State". There
are many other areas in the country where there is unrest, but those are not
mentioned. This provision is a
372
condition precedent to the action that was contemplated in the negotiations,
namely, the linking of the Northern and Eastern Provinces.
Section 37 vests an absolute power in the President. After the linkage is
forged, there is some provision for declining By subsection (2) of section 37,
the President can by order require a poll to be held on a day to be fixed before
the 31st day of December 1988, to enable the electors to decide whether or
not the linkage should continue. The discretion for holding the poll is also
discretionary, for the President is empowered to postpone it, even indefinitely.
In the case of the North and the East, the poll would be confined only to the
Eastern Province. This indicates the true nature of the matter
It has been urged that this creation of one administrative unit where two or
three existed before without reference to the People; has devalued the
franchise and is also contrary to the equality provision of fundamental rights. It
was submitted that, having regard to the whole background, What has been

done is in the nature of a final settlement because the interim measures will
facilitate the creation of a separate unit. What we see before us is a device to
grant autonomy to a significant portion of Sri Lanka and leave it in the hands
of the Tamils, to the exclusion of Sinhalese and the Muslim who are also long
time residents there and who are equally entitled ,to their rights. It has been
submitted that the two provinces concerned constitute nearly 30% of the land
area of Sri Lanka. 60% of its coast line, and it is being handed over to one
ethnic community who constitute only 12.6% of the population. In substance
and truth, it is urged that the severing of the Northern and Eastern territory
from the rest of Sri Lanka is a violation of the rights of all peoples of this
country, as it does violence to the unitary character of the State, its territorial
integrity which are part of the Sovereignty and basic features of the
Constitution .
Seerali refers to another significant factor in determining whether a
Constitution is unitary or federal: He says ".......... it is not enough to say that in law a Constitution is federal, we must
inquire further and find out whether the Constitution works as a federal
government. For the law of the Constitution is one thing the practice is
another. The mere presence of unitary features in a Constitution which may
make a Constitution quasi-federal in law does not prevent the Constitution
from being predominently federal in practice."
373
This matter can be viewed both from a legal and also from a more factual
point. In terms of general principles and concepts, the difference between a
Unitary State and a Federal State needs a brief discussion. Wheare, one of
the well-known writers on this, topic, takes the United Stares as a model of a
federal Constitution. He states that a Federal Constitution establishes an
association of States so organised that powers are divided between a general
government which is independent of the governments of the associated states
and on the other hand State governments which in certain matters are in their
turn independent of the general government. The test he adopts is the
existence of distinct and co-ordinate governments.
This of course is the traditional method of approaching this: matter. In recent
times there have been great political changes after the dissolution of the
British Empire. There have been developments and experiments in the form of
the constitutional structures of many States. The cases of Nigeria and India
were mentioned in the course of the arguments:

Seervai, whose views are entitled to respect, is of the view that the Indian
Constitution is federal in nature but with strong centralizing features. Nearly ail
the other leading text writers on the Indian Constitution share this view. The
Indian Supreme Court has, in the past, been inclined to stress the unitary
features of the Constitution rather than the federal aspect. Probably the
political atmosphere and background in which the Constitution had worked
Until the time of the Janata Government, would have been conducive to such
a view. In Rajasthan v. Union A.I.R. 1977 S. C 361, Chief Justice Begin said
"In a sense therefore the Indian Union is federal. But the extent of federation
in it is largely watered down by the need of progress and development or a
country which has to be nationally integrated, politically and economically coordinated, and socially, intellectually and spiritually uplifted."
In Kesavananda's Case (supra), however, many judges included the federal
nature of the Constitution as one of its basic features.
374
Seervai in his work, after a closely reasoned analysis of the Indian Supreme
Court judgments and the relevant constitutional provisions, concludes (page
168)
"........ the view expressed in Supreme Court judgments that the principle of
federalism has been watered down in our Constitution is not supported by an
examination of its provisions when compared with corresponding provisions in
admittedly federal Constitutions. For the reasons given above, the federal
principle is dominant in our Constitution."
Elaborating on this, Seervai says (page 150)
"In, order to be called federal, it is not necessary that a Constitution should
adopt the federal principle completely. It is enough if the federal principle is the
predominent principle in the Constitution."
It is therefore clear that there can be no standard form or blueprint for a
Federal State. It can take many forms depending on the particular needs of
each country, and can range from a nominal association of virtually free and
independent States with minor constraints to a real distribution of power
between centre and the States, but with centralised features.
The introduction of centralising features does not derogate from the federal
principle. The Indian Constitution has strong centralising features.

Let me now examine the provisions of the Thirteenth Amendment, compared

with the provisions of the Indian Constitution.
The appointment and powers of the Governor: Unlike in the Indian constitution
the governor can be removed on a resolution of two-thirds of the members of
the Provincial Council. Again, as regards the Governor's powers, like in India
the Provincial Council Governor has no discretion but to act in accordance
with the advice of the Chief Minister. In Ram Jawaga Kapoor v. Punjab
A.I.R.1955 S.C. 549, the Supreme Court said
"... the Governor ..... occupies the position of the Head of the Executive in the
State but it is virtually the Council of Ministers in each state that carries on the
Executive Government. In the Indian Constitution, therefore, we have the
same system of, parliamentary executive as in England. The Council of
Ministers consisting as it does, of the members of the Legislature is, like the
British Cabinet a hyphen which joins a buckle which fastens the legislative part
of the State to the executive part."
375
The discretionary powers vested in the Governor are insignificant in relation to
the day to day exercise of the executive powers " of the State.
In regard to the assent to legislation: Compared with the Indian provision the
Governor and the Central Government has. hardly any control over, Provincial
legislation. In India, the Constitution empowers the Governor to veto a Bill or
to reserve it for the President's consideration where apparently he too can
veto it. There is, no such provision with us. The Governor at his discretion may
in some instances reserve it for reference to the President. The net result is
that the President can refer it to the Supreme Court for determination of its
constitutional validity. There is therefore virtually total absence of control over
Provincial legislation.
Again the corresponding Indian provision -relating to public security or internal
disturbance and armed rebellion gives much greater central control to the
Indian Government than to ours.
The Indian Constitution provides for the Central Government to legislate on
matters in the State List in the national interest. We have no such provision.
The provision for the Central Government to take over on the failure of the
administrative machinery in a Province is almost identical with the provision

obtaining in India. It seems that the Proclamation made under the Indian law
can prevail for a longer period than one made under our law;
Article 154N which enables the President to give directions to the Governor in
case of financial instability is of similar nature:
Seervai also states that the allocation of the residuary power of legislation to
the Central Government and the exercise of Sovereignty in regard to external
and foreign matters is irrelevant for the purpose of determining the federal
nature of a Constitution.
It should also be mentioned that in India, unlike in our Bill, on the conflict of a
valid Federal law and a valid State law, the federal law prevails, Article 154G
(8) and (9) shows that the position of the Centre is much weaker here than in
India.
376
It is also sometimes contended that only unimportant and subordinate matters
have been assigned to the States. In this connection it would be noted that our
List I is modelled on the Indian list and is similar to it. Seervai, dealing with the
same argument, says (page 168)
"The view that unimportant matters were assigned to the State cannot be
sustained in face of the very important subjects assigned to the States in List
11, and the same applies to taxing powers of the State, which are made
mutually exclusive of the taxing powers of the Union so that ordinarily the
States have independent sources of revenue of their own."
In terms of the provisions in the Thirteenth Amendment and the Appendix
dealing with law and order, it would however be observed that the entire
maintenance of law and order and Police powers of the province is in the
Chief Minister and the Board of Ministers. This would include both criminal and
certain aspects of the civil law, such as rights in immovable property,
regulation of religious associations, housing, agricultural matters, education.
Our earlier discussions of the principles relating to this topic shows that there
is a wide spectrum between an absolute unitary state and a complete
federation. Between these two extremes there are number of intermediate
positions. There could theoretically be a mid-point where the two types of
characteristics blend in equal proportions. On an analysis of our provisions, it
is apparent that the balance is in favour of the regional unit and the extent of
central control is insufficient to alter the picture. These provisions place the

Constitution at a point closer to a federal state. This has been the declared
object of the Sri Lankan Tamils (of late with South Indian assistance) for the
last forty years In any event this is a departure to a great extent from the
situation of the unitary state contemplated in the Constitution.
On my analysis of the legal provisions I find. that the Bills give the Tamil
people of the Northern and Eastern provinces sufficient autonomy to be
masters of their own destiny. The provisions are flexible and extensive enough
to be worked to that end. It is a fact that the single Provincial Council for the
North and East would be dominated by Tamils, with a overwhelming Tamil
speaking majority. It would be controlled and administered by Tamils who had
for nearly a half century claimed this territory as their traditional homeland and
377
resented a Sinhala presence. They have subscribed to a two nation theory
and not to an ideal of a Sri Lankan nationality. The regional machinery in
respect of Police and Public Order, Land and Land Settlement, Education,
Rehabilitation, Agriculture and Agrarian Services, to name a few give the
ruling authorities ample powers if they wish of making life difficult for the
Sinhalese or evicting them outright. These are not fanciful fears, but they are
real and the Peace Accord nor the assurance's given have had any effect on
this anti-Sinhala policy of the Tamil ruling groups.
In the forefront of the case of the Buddhist and Sinhala organisations, reliance
is placed, on a statement by His Excellency the President. It Is a matter which
I cannot avoid dealing with. This statement, I may say, has not been produced
as a criticism of the President, but as corroboration of their case that the
joinder of the Northern and Eastern Provinces and the official recognition of
the traditional homelands of the Tamils will toll the death knell of the Sinhala
people in those Provinces. There is an undertone of this fear in all the petitions
opposing the Bills.
It is always open to a statesman or politician to change his views and
opinions. This he must do when the interests of the country or party demand it.
This is not the issue here. Neither is the wisdom nor otherwise of the Accord a
matter for us. The only issue is whether the Bills must go before the People for
a Referendum for enactment.
The speech quoted in the petitions constitute the Address the President made
on the solemn occasion of the opening of Parliament. In the speech made by
His Excellency on that occasion, he said:

"There are certain principles which we cannot depart from arriving at a

solution. We cannot barter away the unity of Sri Lanka, its democratic
institutions, the right of every citizen in this country whatever his race, religion,
or caste to consider the whole Island as his Homeland enjoying equal rights,
constitutionally, politically, socially, in education and employment are equally
inviolable."
The documents tabled by him in the course of his address also indicated the
views and policies of the Government on this matter:
"At present the Sri Lanka Tamils are in a minority in the eastern Province
while the Sinhalese and the Muslims together constitute nearly sixty per cent
of the population. Since the Sri Lanka Tamils
378
constitute more than ninety per cent of the population in the Northern Povince,
the object of the amalgamation of the North and the East is clear the Sri Lanka
Tamils will after amalgamation become the majority group in the combined
unit of administration. Once the amalgamation is achieved the concept of the
traditional homeland of the Tamils which has been a corner-stone of agitation
in the post-independence period will be revived as this is the only ground on
which the T.U.L.F. denies the legitimate rights of the Sinhala people to
become settlers in the Northern and Eastern provinces. Nor does the
traditional homelands theory recognise any rights for the Muslims either
except as an attenuated minority in the amalgamated territory So on the one
hand while professing to urge the case for all Tamil speaking people in fact the
T.U.L.F. is covertly seeking to secure the extensive areas for development,
especially under the accelerated Mahaweli Programme, for exploitation by the
Sri Lanka Tamils alone. This in short is he duplicitous motivation behind the
demand for amalgamation.
Again
'Quite candidly, the Sinhala people do not regard the demand for the
amalgamation of the Northern and Eastern Provinces as a bona fide claim but
as one motivated by an ulterior purpose, namely, as a first step towards the
creation of a separate state comprising these two Provinces. The recent
outrages by Tamil terrorists against the Sinhala civilian population settled in
the North and East killing vast numbers of them, ravaging their homesteads
and making thousands of them refugees in their own land has only made their
apprehensions seem more real than ever before
and finally

"Even the most, native of people could not expect a single Sinhalese to go
back to the North and/or East if the maintenance of law and order within those
areas becomes he exclusive preserve of the political leaders and patrons of
the very terrorists who chased them out. Could one for instance expect the
survivors of Namalwatta to go back to their village if the leader of the Tamil
Terrorist gang that murdered their families is the A S.P. of the area? Not only
would those poor refugees not go back but those Sinhalese, including those in
Ampara and Trincomalee, who are still living in the North and East, would
necessarily leave their lands and flee to the South, if these proposals are
implemented."
379
"These porposals are totally unacceptable. If they are implemented, the T. U.
L. F. would have all but attained Eelam. It need hardly be said that even if the
demand for a Tamil Linguistic State is granted, further problems and conflicts
are bound to arise between that Tamil Linguistic State of the North and East
and the Centre. Water, hydropower, the apportioning of funds are some of the
areas in which conflicts could arise. A cause or pretext for a conflict on which
to base an unilateral declaration of independence could easily be found. There
can be little doubt that what T.U.L.F. seeks to achieve by its demands is the
necessary infrastructure for a State of Eelam, after which a final pustch could
be made for the creation of a State of Eelam, comprising not only of the North
and East, but of at least the hill country and the NCP as well."
I shall now deal with a few remaining matters urgued by counsel. The first is in
respect of Article 82 of the Constitution.
Admittedly Parliament has the power to amend "any provision of the
Constitution" or add "any provision to the Constitution". The procedure for the
amendment of the Constitution is contained in Chapter XII. Article 82(1) deals
with the amendment and amendment is defined to include repeal, alteration
and addition of any provision of the Constitution. Clauses 2, 3, 5 and 6 of the
Thirteenth Amendment would come under this category.
The only other provision is Article, 82 (2) which deals with the repeal of the
Constitution and its replacement. In this connection see Article 75(b). This is
not such a case.
The present matter in so far as it relates to Chapter XVIIA is the introduction of
a new material into the Constitution unconnected with any particular provision
except that some provisions may be consequentially affected. But these would
be the principal and substantial provisions and those consequential. This is
also not a repeal of the entire Constitution.

Chapter XII has not made provision for this situation, that is, for adding any
provision to the Constitution. In Article 82(1) only the repeal, alteration of any
provision of the Constitution or addition to a provision is contemplated. A new,
Chapter dealing with a new matter having no, direct link with a provision
cannot be said to be an addition to a provision.
380
I do not agree entirely with Mr. Wickremanayake about the kind of order we
can make in relation to this matter. I agree that it can certainly be passed in
terms of Article 84 with the consequent results. But in my view, if this has to be
passed; otherwise, a suitable amendment of Chapter XII would be necessary
to enable this kind of amendment to be enacted.
Judicial Power
Mr. Senanayake argued that Article 154P interfered with the judicial power.
Mr. Fernando and Dr. Jayewardene contended that the judicial power and the
existing court structure is left untouched and the only innovation is taking
justice close to the people.
I think there is much more to Article 154P than that and there is substance in
Mr. Senanayake's argument. By subsection 4(a) and (b) a High Court is now
given jurisdiction to issue orders in the nature of habeas corpus and the
prerogative writs. This is a Dower vested in the superior courts, namely the
Supreme Court and the Court of Appeal These two Superior courts are
constitutional courts and the High Court and the other courts do not stand in
an entrenched position.
Habeas Corpus and the writs are part of the mechanism that protects
fundamental freedoms of the individual and they cannot be vested in any
institution that is not entrenched. If that is permitted, they could be eroded and
taken away in stages.
It is said that this power would be exercised by a High Court concurrently with
the Court of Appeal. This could lead to absurd situations. To take an example
in the Western Province, there could be two applications for writs of Habeas
Corpus, one in the High Court and the other in the Court of Appeal. The matter
will not end there. The Court of Appeal could hear one in an original capacity
and the other in an appellate capacity. One of them would have one appeal,
the other will be entitled to two appeals. This most valuable remedy cannot be
allowed to be trifled with in this manner. This provision has devalued this right

by vesting it in a court which is not entrenched and by pro tanto removing that
power from the Court of Appeal.
Franchise
Many of the petitioners submitted that the impugned legislation affects the
franchise. Mr. Senanayake contended that the legislative administrative
division of the country to new units would affect
381
the franchise as at present exercised on the basis of a unitary State where
every voter and member of Parliament have a voice in the overall
administration of the whole country. These rights would be dismissed by the
Bills.
It was also submitted that the proposed creation by Presidential Proclamation
of a single Provincial Council for the Northern and Eastern Provinces would
result in a dilution or erosion of the right to the franchise of the inhabitants of
the Eastern Province, as decisions affecting them would not be taken soley by
them, but will be joint decisions between their representatives and those of the
Northern Province. It would be remembered in this connection that members
of Parliament are permitted in certain circumstances to participate and vote in
the proceedings of the Provincial Councils. The fact that voters and members
of Parliament of the seven remaining Provinces have no voice in this
constitutes also a violation of the franchise. Mr. Fernando sought to show that
what was involved was a regional franchise and not the national franchise and
that any franchise where the people are given a vote would not offend the
Constitution. From the above it would be seen that this not so. S.C. No. 5 of
1980-P/cf. 185/8.
Finance
A number of petitioners challenged Article 1548. This Article provides for the
establishment of a Finance Commission. It is the duty of the Finance
Commission to recommend to the President
(a) the principle of, apportionment of funds between various Provinces of
funds granted annually by the Government:
(b) any other matter relating to Provincial Finance referred to it by the
President.

It is quite clear from Article 154R(3) that the Government shall on the
recommendation of and in consultation with the Commission allocate from the
Annual Budget such funds as are adequate for the purpose of meeting the
needs of the Provinces.
Article 154R(7) states that the President shall cause every recommendation
made by the Finance Commission to be laid before Parliament and shall notify
Parliament as to the action taken thereon.
382
These provisions indicate that monies from the Annual Budget have be
allocated to the provinces. This is mandatory. Parliament has no control over
this operation except to be informed and if necessary to debate it This is after
the event Control over public finance is one of cardinal principles of a
Parliamentary democracy. The passing o the Appropriation bill is the, most
effective control Parliament has over the Executive. This right was won after
long struggle. I cannot agree with Mr. Mark Fernando that the impugned
provisions mean otherwise. This provision contravenes the provisions of
Chapter XVIl of the Constitution, which cannot be considered as a basic
feature of tie Constitution
Official Language
Counsel challenging the Bill submitted that the amendment o Article" 3 making
Tamil also an official language and English a link Language contravenes a
fundamental feature of the Constitution It is not necessary to delve into the
history of the language problem in this country except, to state that it has been
a live issue since 1956, and Sinhala as the only official language in this
country (with reasonable use of Tamil in Northern and Eastern Provinces and
by Tamils) has been the major plank in the manifestos of the leading Sinhala
political parties throughout the last four decades. It has been submitted that
such a fundamental change cannot be effected without consulting the People
It was also submitted that the existing language provisions are set out in
Chapter IV and run into, eight sections. All those are left untouched. What is
sought to be done is to add three sub-paragraphs to paragraph (1) of Article
18. Counsel asked what is going to happen to all those provisions which are
basically inconsistent with the proposed Articles. At the least, counsel
submitted that the suspension of any part of the Constitution contravenes the
proviso to Article 75, which is entrenched by implication.
Oath

Some counsel also. drew our attention to the omission of any provision,
making the Governor, the Chief Minister and the other Ministers, and
presumably all other provincial officers, from subscribing to the oath which
was brought in by the Sixth Amendment to safeguard the independence,
sovereignty, unity and territorial
383
integrity of Sri Lanka, which was threatened by persons and political parties
and organisations claiming self determination and a separate state. All State
officers have hereto subscribed to this oath.
The Thirteenth Amendment requires all such persons mentioned above to
take instead the oath of office-set out in the Fourth Schedule to the
Constitution. This omission, it has been submitted, is discriminatory and also
shows the intention of the Bill to create or to remove the restraints that prevent
the creation of conditions for a separate State.
It would be seen from the foregoing that the Thirteenth Amendment seeks to
create an arrangement which is structurally in conflict with the structure of the
Constitution and with its provisions both express and implied. Further,. the
provisions of the Thirteenth Amendment also contravene both the express and
implied provisions of the Constitution. The Bill therefore cannot be passed
without at least a Referendum.
RANASINGHE, J.
Several objections alleging, inter alia, that the provisions of Articles 2, 3, 4, 3,
76, 83 of the Constitution would be violated, have been raised by the
Petitioners in regard to the constitutionality of the two Bills-the Thirteenth
Amendment to the Constitution, and the Provincial Councils Bill-which have
been referred to this Court by His Excellency the President.
I agree with the view expressed by His Lordship the Chief Justice that no
provision of the aforesaid Bill, the Thirteenth Amendment. to the Constitution,
is inconsistent with any of the provisions of Articles 2, 3, 4 or 9 of the
Constitution.
Although it seems to me that the powers of legislation sought to be conferred
upon the Provincial Councils referred to in the said Bills cannot, in law, be held
to be "subordinate legislation", as set out in sub-article (3) of Article 78, and
would, therefore, be inconsistent with the provisions of the said Article 76(3),
yet, as the supremacy of the Parliament is retained-in that it has the power to

legislate, even though in a special manner and form, not only to render
ineffective any statute passed by a Provincial Council in respect of even a
subject set
384
out in the Provincial Council List; but also to repeal the provisions of Chapter
XVII A itself in its entirety I am of the view that the provisions of neither Article
3, nor of Article 2-having regard to the essential characteristics of a Unitary
State, as set out by both the earlier and the more recent text writers; and also
to the recent legislation passed by the Parliament of the United Kingdom, in
respect of Scotland, Wales and Northern Ireland which were referred to by
learned Counsel at the argument before us could be said to be violated. The
executive power of the people entrusted to the President of the Republic is not
whittled down.
In regard to Article 9, which was also referred to as being an Article of the
Constitution with the provisions of which the provisions of the aforesaid Bills
are inconsistent, it appears to me that the solemn duty cast upon the Central
Government by the provisions of the said Article would remain untrammelled
and undiminished. The Provincial Councils will not, in law; have the power to
interfere with the discharge of the duties cast upon the Central Government by
the provisions of this Article. If an act of a Provincial Council, purporting to be
done in terms of item 25:2 or item 28 set out in the Provincial Council List
contained in the 9th Schedule, in respect of which submissions were made by
learned Counsel appearing for several of the Petitioners, were to constitute an
encroachment of or an interference with the duty cast upon the Central
Government resulting in an erosion of the rights guaranteed' to the Buddhists,
or a diminution of the rights assured to the other religions, the Central
Government could then, in law, take steps to discharge the obligations cast
upon it by the provisions of this Article. It is indeed the duty of the Central
Government to do so and do so effectively. The power now conferred upon
the Central Government in this behalf under the Constitution remains
untouched and unimpaired. The law of the Constitution, provides for prompt
action. How effective such action will, in practice, be would depend entirely. on
the response of the Central Government. Fears were expressed particularly by
learned Counsel appearing on behalf of the Young Men's Buddhist
Association and the Colombo- Buddhist Theosophical Society about the safety
and the preservation of places of worship of, and the freedom to exercise the
rights of the Buddhist in certain specified provinces. Such fears are based
upon incidents that are said to have taken place in those areas in the recent,
past. The Sansoni Report provides ample incontrovertible proof in supports
and its findings do, justify the fears so entertained and expressed. If, however,
there is a recurrence of such incidents after the provisions of

385
the two Bills, referred to above, become operative it would not be because
another body has been vested with power which entitles it to act in that
manner. Nor would the failure to prevent any such recurrence be due to any
diminution of the authority which is presently vested bylaw, in that behalf, in
the Central Government.
I shall now proceed to consider the objection put forward by the Petitioners
founded upon the provisions of Article 83.
Clauses 154 G(2)(b) and (3) (b) in the Thirteenth Amendment set out the
manner in which a Bill for the amendment of Chapter XVII A, and a Bill in
respect of any matter set out in the Provincial Councils List respectively shall
become law, in the event of one or more Provincial Councils not agreeing
either to an amendment or repeal of the said Chapter onto the passing of such
Bill, as the case may be. In each of these instances the manner and the form
for the process of amendment is as required by the provisions of Article 83; for
the amendment of either that Article itself or any of the other Articles, viz: 1, 2,
3, 6, 7, 8, 9, 10, 11, 30(2) and 60(2), set out therein.
In the Constitution all the articles which should be amended only by a 2/3
majority and by a Referendum, have been grouped together in Article 83. In
Article 83 are included all the Articles of the Constitution which are entrenched
in that special way; and, in order to prevent an amendment of Article 83 itself
in the ordinary way, and thereby taking the Articles so grouped together in
Article 83 out of the category of Articles which require such special manner
and form for amending them, Article 83 itself has been made alterable only by
the selfsame process of a 2/3 majority-and a Referendum. That is the effect of
the provisions of Article 83 The resulting position then was that once the
Constitution came into operation, any amendment of the provision of Article
83, could be effected not in the ordinary manner by a simple majority, but only
in that special manner and form of a 2/3 majority and a Referendum so
expressly and clearly set out in Article 83. This then is the scheme of the
Constitution. Thenceforth any amendment of the Constitution, which
constitutes an amendment, either expressly or by necessary implication, of an
already entrenched provision such as Article 83, could be validly effected only
by compliance with the procedure so laid down in Article 83. That being so,
any steps taken thereafter to entrench any other Article, included or t6 be
included in the Constitution by laying down the selfsame special process for
amendment would in truth and in fact, amount to an 'addition' to the existing
provisions enumerated in the said Article 83. Sub-Article (7)
386

of Article 82, which is in the same chapter as Article 83, provides that in this
Chapter 'amendment' includes repeat, alteration and addition'. The,
introduction therefore, of any such new Article to the Constitution without
having recourse to Article 83 and expressly including such new Article too in
the list of Articles already included in, and entrenched by the said Article 83,
would have the effect of adding a new provision to the Articles already et out
in Article 83: and would, in law, amount to an 'implied amendment' of Article
83. It would amount to an amendment by implication. The term 'implied
amendment' has been used by Courts in determining whether the
Constitutional requirement as to the form of an amendatory Act has been
violated (Bindra: Interpretation of Statutes (7 edt.) p. 915). It is not in my
opinion, open to state that, because the new provision carves with it an
ultimate appeal to the People; the legal Sovereign under the Constitution;
such provision could be entrenched in the Constitution separately and
independently of Article 83. Such an approach would not be in keeping with
the spirit of the Constitution either. The intention of. the makers of the
Constitution seems also to have been that, after the date on which the
Constitution comes into operation., no provision was also to be entrenched in
the Constitution without it being expressly approved by the People. That the
provisions of only a Sub-Article of an Article in a Constitution could be
entrenched without the rest of the Article being entrenched is clear law A .G.
of Trinidad v. McLeod, [1984] (1) AER 697. Any attempt to have a. new Article
entrenched in the Constitution without reference to Article 83 and without
having recourse to the special manner and form required by Article 83 would
be tantamount to doing indirectly what cannot be done directly. Such a
procedure is not permissible.
In this view of the matter, I am of opinion that the provisions of Clauses
154G(2)(b), and(3)(b) of the said Thirteenth Amendment to the Constitution
constitute an amendment of Article 83, and that, therefore, it is an amendment
which shall become law only if passed in the manner and form spelt out by the
provisions of the said Article 83.
My determination, therefore, in regard to the questions referred to this Court
by His Excellency the President is that:
(1) The provisions of Clauses 154G(2)(b) and (3)(b) of the Bill to amend the
Constitution of Sri Lanka (Thirteenth Amendment to the Constitution) require
approval by the People at a Referendum by. virtue of the provisions of Article
83;
387

(2) That the Constitutionality of the provisions of the Provincial Councils Bill
will depend upon the aforesaid Thirteenth Amendment to the Constitution
becoming law, asset out in the answer (1) above, in terms of Sec.83 of the
Constitution.
There is just one other matter to be-referred to Article 123(2) of the
Constitution provides that, where this Court "determines that a Bill or any
provision thereof is inconsistent with the Constitution"; this Court may" also
"specify the nature of the amendments which would make he Bill or such
provision cease to be inconsistent". I have considered whether such a
statement should be made. In view, however, of the fact that the Reference
requires this Court only to state whether a Referendum is required, 'the fact
that it was also submitted at the hearing that the only jurisdiction this Court
exercises in these proceedings is to determine, in terms of Proviso (a) of
Article 120 of the Constitution, whether the Bill referred to requires the
approval by the People at a Referendum, and the fact that, at the hearing, this
matter was also put to learned Counsel for the Petitioners but was not
pursued, I do not propose to make any such statement.
SENEVIRATNE. J.
His Excellency the President 'of Sri Lanka has referred to this Court(a) S. D. No. 1/87 of 15.10.1987, and
(b) S. D. No.; 2/87 of 15.10.1987,
in terms of Article 121 of the Constitution of Sri Lanka for determination
whether "the Bills.:
(a) A Bill to amend the Constitution of Sri Lanka (THIRTEENTH AMENDMENT
TO THE CONSTITUTION) ; and
(b) Provincial Councils Bill.
or any provisions thereof; require approval by. the People at a Referendum by
virtue of provisions; of Article 83". Four petitions have been filed in support of
the proposition that these two above named Sills do not require approval, by
the People at a Referendum as required by Article..83-Nos 33 and 34/87,.
35/87 and 38/87. Petitions Nos. 7/87 to 48/87 have been filed by various
petitioners submitting that these two Bills require the approval by the People at
a Referendum. Some of these petitioners have filed petitions only as regards
the Bill to amend the Constitution, the THIRTEENTH

388
AMENDMENT and some of the petitioners have filed petitions in respect of
both Bills, the THIRTEENTH AMENDMENT and Provincial Councils Bill.
Dr. H. W. Jayewardene, Q C., and K. N. Choksy, P. C. made submissions on
behalf of His Excellency the President to the effect that these two Bills do not
require approval by the People at a Referendum. The petitions of some of the
petitioners were supported by learned counsel, and some petitioners
supported their petitions in person.
I will at the outset refer to a submission made by certain petitioners on the
basis that the Bill THIRTEENTH AMENDMENT TO THE CONSTITUTION has
not been property placed before the Parliament, and as such is not property
before this Court. Chapter Xll of the Constitution THE LEGISLATURE.AMENDMENT OF THE CONSTITUTION, has Section 82, sub-section (7),
which defines the term 'Amendment' as follows:- "in this Chapter 'Amendment'
includes repeal, alteration and addition". Article 4 of this 'Amendment' is as
follows:- "The following Chapter and Articles are hereby inserted after Article
154, and shall have effect as Chapter XVIIA and Articles 154A-154T of the
Constitution". Plainly Article 4 adds certain Articles to Chapter XVII of the
Constitution. Articles 2 and 3 of this "Amendment" are described as
"Amendments". Article 2 states that Article 18 of the Constitution is amended
as follows, and Article 3 states that Article 138 of the Constitution is hereby
amended as follows, and the consequential amendments are specified in
Article 3. The objection was in respect of Article 4 of this ill on the ground that
it does not comply with Articles 82(1) and 82(2) of the Constitution. Article 4;
which is Chapter XVIIA adds to the Constitution. It is not so stated that it is an
amendment by addition, and what is added to the Constitution. Dr. H. W.
Jayewardene, Q. C., submitted that it is for the Speaker to determine whether
a Bill is properly before Parliament. What is before Court now is a Reference
made by His Excellency the. President, and the Court has to make a
determination under Article 120 of the Proviso, which is as follows: In case of
a Bill described in its long title as being for the amendment of any provision of
the Constitution or for the repeal and replacement of the Constitution; the only
question which the Supreme Court may determine is whether such Bill
requires approval by the People at a Referendum by virtue of provisions of
Article 83.
389
I will not make any ruling on this procedural matter. I will consider and rule on
the submissions made that this THIRTEENTH AMENDMENT and the
Provincial Councils Bill require not less than two-third votes in the Parliament,

and have to be approved by the People at a Referendum, as this legislation

was inconsistent with Articles 2 and 3 of the Constitution read with other
consequential Articles. Submissions were made that Article 4 of the
THIRTEENTH AMENDMENT Chapter XVIIA Articles 154A-154T is violative of
Article 2 which has laid down that Sri Lanka is a Unitary State, and also of
Article 3, as it alienates the Sovereignty in the People. As such Article 83
should operate, that is these two Bills can become law only if approved by the
People at a Referendum.
Those who opposed the above proposition relied mainly on Article 27(4) of the
Constitution, which is as follows:- "The State shall strengthen and broaden the
democratic structure of government and the democratic rights of the People by
decentralising the administration and by affording all possible opportunities to
the People to participate at every level in national life and in government". The
submission was that clause 4 Chapter XVIIA of this THIRTEENTH
AMENDMENT did not derogate from the character of the State or alienate the
sovereignty of the People, it only seeks to decentralise the administration, and
that the power of legislation given to the Provincial Councils was in fact and in
law "subordinate legislation in terms of Article 76(3) of the Constitution. It was
submitted that Article 27(4) lays down a directive principle of State policy
which the legislature is implementing in this instance.
In reply to this submission the advocates of the proposition that a Referendum
must be held submitted that, even in an instance of implementing the State
policy set out in Article 27(4); the Legislature should also pay consideration
and implement the State policy set down in Article 27(3) to wit:- "The State
shall safeguard, the independence, sovereignty, unity, and the territorial
integrity of Sri Lanka". Under the guise of implementing the policy set out in
Article 27(4) the policy laid. down in Article 27(3) quoted above cannot be
ignored. Further, that under the guise of implementing. The Directive
Principles of State Policy (chapter 6), the Parliament cannot violate the
mandatory provision of Article 76(1), which is as follows: Parliament shall not
abdicate or in any manner alienate its legislative power, and shall not set up
any authority with any legislative power". From the submissions based on our
Constitution, the submissions
390
and arguments flowed into the sphere of political theory and philosophy, which
submissions were made at such a high level that I would describe what was
propounded as metaphysical political theory and philosophy, In propounding
these metaphysical theories the parties appeared to lose sight of the history
and the background in which these pieces of legislation have been drafted. A
volume of such material has been placed before this Court by various

petitioners. I must state that I have voraciously read and digested such
material, but I would not make references to them firstly, because such
material is now history and known to the intelligent and educated public of Sri
Lanka, and because there is no time to discuss such material. But I must
record that in coming to my conclusions I have considered all such
background material, the copies of the texts submitted, and consulted as
many texts and. authorities referred to, and even such other texts which were
available to me. These two Bills have to be considered in the light of the
background and the situation in which this legislation has been drafted. The
Statutory time factor placed or, this Court to toward the determination to His
Excellency the President and the Speaker prevents me from making such
detailed reference.
For the consideration of the submissions made by these parties, it is
necessary to analyse in brief the provisions of the THIRTEENTH
AMENDMENT in respect of the three standard categories of separation of
powers set out in our Constitution (1978).
(1) The Executive,
(2) The Legislature,
(3) The Judiciary.
I must state at the outset, that 3 above, the Judiciary as at present under our
Constitution has not been that much affected by the Amendment. The material
part of this Amendment is clause 4, the insertion of Chapter XVIIA in the
Constitution as Articles 154A - 54T of the Constitution. The heading Chapter
XVIIA is followed by an unnumbered paragraph which can be called a
'preamble' with the marginal note '"effect and construction of this chapter" .
This so-called "preamble" is in TWO parts(1) "The provisions of this Chapter shall be subject to Articles 1, 2, 3, 6, 7, 8 ,
9, 10, 11, 30(2), 62(2); and 83, and shall not affect or derogate from, or be
read or construed as affecting or derogating from; any such Article,
391
(2) but, save as aforesaid. nothing contained in the Constitution or any other
law in force on the date on which this Chapter comes into force shall be
interpreted as derogating from the provisions of this Chapter. The provisions
of such other law shall mutatis mutandis apply".

Much criticism was made on the first part of this 'preamble'. The criticism was
that it was misleading and inserted merely to enable this Amendment Chapter
XVIIA to be passed in Parliament by a mere two-thirds majority as a common
Amendment to the Constitution-Article 82 (5). it was submitted that it was the
duty of the Court nevertheless to test whether this Amendment Chapter XVIIA
is Violative of any of the Articles referred to in the "preamble", and is required
to be passed in terms of Article 83. The second part of the "Preamble" makes
Articles 154A- 154T a part of the Constitution and gives it such a status. I
agree with the submissions that the first part of this "preamble" is a facade, to
cover the dangers lurking in "several provisions of this Amendment. Even
though this "preamble" states that this Chapter "shall not affect or derogate
from" the Articles mentioned in the "preamble", it is the duty of this Court to
consider whether any provision in this Amendment is inconsistent with the said
Articles which are the entrenched provisions of the Constitution (1978).
It is necessary to set out the main provisions of this Amendment, to
understand the status of the Provincial Councils re Executive: Legislature,
Judiciary and consider the same, in order "to determine whether this
Amendment requires approval by the People at a Referendum by virtue of
provisions. of Article 83
The Executive
The intention of this THIRTEENTH AMENDMENT is to create a new body a
Legislature, the Provincial Councils as a separate administration unit with its
own Provincial Council; and Governor, Chief Minister and Board of Ministers.
Article 154B - "A Governor to be appointed for each Provincial Council".
Article 1.548(2)-"The Governor shall be appointed by the President by warrant
in accordance with Article 4B to hold office during the pleasure of the
President".
392
Article 154B(5)- "The Governor to hold office for a period of five years".
Article 154B(8)(a), B(8) (b) & B(8)(c)- "The Governor shall summon the
Provicial Council, prorogue the Provincial Council, may dissolve-the Provincial
Council".
Article 154B(8)(d)- "The Governor shall exercise his powers in accordance
with the advice of the Chief Minister".

Article 1548(10)-"Provided where the Governor does not agree with the advice
of the Board or Ministers, he may refer that case to the President for orders".
Article 154(f) (1)-"The Governor shall, in the exercise of his functions, act in
accordance with the advice of the Board of Ministers".
Article 154(f)(2)-" Where the Governor has to exercise his discretion, such
discretion shall be exercised on the President's direction".
Article 154H(2), (3) & (4) -The Governor shall give his assent to the statute.
When a statute is presented for assent the Governor can return it to the
Provincial Council with a message to reconsider the statute. If, after
reconsideration the statute is presented to the Governor, he may assent to the
statute or reserve it for- reference by the President to the Supreme Court for
determination whether the statute is consistent with the provisions of the
Constitution.
The important powers of the Governor are found in the Provincial Councils Bill,
Part III-Finance Sections 24(1), 25(1), and such sections, and in Part IV of the
same Bill, Provincial Public Service Commission, Sections 32(2), 32(3) and
such. In terms of Section 31 of the Provincial Councils Bill the President shall
appoint the Chief Secretary for each Province with the concurrence of the
Chief Minister of the Province. This Amendment is silent on the executive
functions of the Chief Minister and the Board of Ministers. The powers of the
Governor in respect of Finance, the Provincial Public Service, and Law and
Order are vast. It can be said that the Governor is sharing executive power
with the President which is contrary to Article 4(b). One of the pillars of our
Constitution is that the executive power of the
393
People "shall be exercised by the President". Article 4(b). There is no room for
the sharing of the executive power with the President. The powers of the
President in the instance of an Emergency situation are rightly preserved, and
must be preserved.
The Legislature The Amendment Article 154A-Provides for the establishment of a Provincial
Council for every Province specified in the Eighth Schedule. (Nine Provinces
subject to Section 37 of the Provincial Councils Bill which enables the
President initially to amalgamate two Provinces).

Provincial Councils Bill Part I-Sections 2-6. -Provides for Membership of the
Provincial Councils.
Amendment Bill Article 154G(1)-G(11) -Article 154H(1)-(4).- Provides for the
legislative power of the Councils.
Article 154G(1)-Every Provincial Council may, subject to the provisions of the
Constitution make statutes applicable to the Province for which it is
established with respect to any matter set out in List I of the Ninth Schedule
(hereinafter referred to as ("The Provincial Council List")
154G(2) -No Bill for the Amendment or repeal of the provisions of this Chapter
or the Ninth Schedule shall become law unless such Bill has been referred by
the President .......... to every Provincial Council for the expression of its views
thereon,......... as may be specified in the reference,
(a) where every such Council agrees to the Amendment or. repeal of such Bill,
and such Bill is passed by a majority of the members of Parliament present
and voting; or
(b) where one or more Councils do not agree to the Amendment or repeal
such Bill is
(i) Passed by the special majority required by article 82; and
(ii) Approved by the People at a Referendum,
394
(3) No Bill in respect of any matter set out in the Provincial Council list shall
become law unless such Bill has been referred by the President, .........to
every Provincial Council for the expression of its views thereon ................. and
(a) where every such Council agrees to the passing of the Bill, such Bill is
passed by a majority of the members of Parliament present and voting ; and
(b) where one or more Councils do not agree to the passing of the Bill, such
Bill is
(i) Passed by a. special majority required by Article 82, and

-Provided ......... some, but not all the Provincial Councils agree to the passing
of a Bill, such Bill shall become law applicable only to the Provinces for which
the Provincial Councils agreeing to the Bill............. upon such Bill being
passed by a majority of the members of Parliament present and voting
Article 154S(1) -A Provincial Council may by resolution decide not to exercise
its powers under Article 154G with respect to any matter or part thereof set out
in the Provincial Council list or the concurrent list of the Ninth Schedule.
Article 154S(2)-where resolution has been passed by a Provincial Council
under paragraph 1, the Parliament may make laws with respect to that matter
applicable to such Provincial Council.
Article 154G(5a) -Parliament may make laws with respect to any matter.
I have now set- out the constitution of the Executive and the Legislature of a
Provincial Council. Before I discuss the legal or constitutional effect of these
provisions, it is essential that references should be made to the list of subjects
referred to above. Ninth Schedule List I the Provincial Council List is the most
exhaustive List with appendices i, ii and iii. This List with the appendices set
out the area of authority vested in a Provincial Council. The list begins with
No. 1 Police and Public Order-but not including National Defence, National
Security. The details of these subjects are set out in an exhaustive appendix
No. 1-Law and Order. This appendix deals the exercise- of police powers by a
Provincial Council.
395
APPENDIX 1
Law and Order
(2) The Sri Lanka Police Force shall be divided into
(a) National Division.
(b) A Provincial Division for each police.
(4) Recruitment to each Provincial Police Division shall be made by a
Provincial Police Commission composed of three members, namely
(a) The D.I.G. of the Province.

(b) A person nominated by the Public, Service, Commission in consultation

with the President; and
(c) A nominee of the Chief Minister of the Province.
(6) The Inspector General of Police shall appoint a Deputy Inspector General
of police for; each Province with the concurrence of the Chief Minister of the
Province. (Thus it will be seen that two members of the Provincial Police
Commission will be agents of the Chief Minister of the Province).
12 : 1-The Provincial Police Division shall be responsible for the preservation
of Public Order within the Province.
APPENDIX II
Land and Land Settlement
State Land shall continue to vest in the Republic ................ Subject as
aforesaid land shall be a Provincial subject.. (This will mean private land, even
land belonging to religious institutions which may have a bearing on Article 9
of the Constitution).
APPENDIX III.
Education
The question arises what is the. nature and content of the Provincial Council
Unit sought to be created by the THIRTEENTH AMENDMENT. To make this
query posed by me clearer the question is, is, the Provincial Unit sought to be
created- by this, THIRTEENTH AMENDMENT, a mere Administrative District
as at present or any
396
Local Government Unit? These problems were posed because it was
submitted by most of the petitioners who spoke against this Amendment, that
what was sought to be created was an independent Provincial Unit which
undermined or eroded the very basis of a Unitary State. To consider this
submission as I have stated, the Court has to consider the executive structure
and power of the Unit, the legislative power conferred on the Unit and the
State subjects Provincial List and Concurrent List assigned to a Provincial
Council Unit. It was submitted that the division of the Republic of Sri Lanka
into these Provincial Units which are in the, nature of independent or quasi
independent Units was a first step in the erosion of the Unitary State and the
make up of a federal structure of Government. On the other hand the learned

President's Counsel who supported this Amendment on behalf of the

Intervenient-Petitioners in Applications Nos. 33/87 and 34/87, submitted that
these Units were extensions of Local Government Administration Units, such
as inter alias the new Local Government Units, Pradeshiya Sabhas or
Gramodhaya Mandalayas. Learned President's Counsel submitted, that these
Provincial Units were not Bodies that can be called "subsidiary sovereign
bodies;" a body which has rights in respect of legislation and executive power
which the Central Government was incapable of diminishing and in any event
these Provincial Units were not Bodies which had independent powers of
legislation and which were in their sphere sovereign. Learned President's
Counsel submitted that these Bodies were not Bodies that had the power of
legislation beyond the control of the central legislature. The fact that there was
some difficulty in diminishing the powers of these subsidiary Bodies was not
sufficient to make these. Bodies sovereign bodies. It was only if the central
legislature was incapable of diminishing. such powers, that such body can be
said to be a subsidiary sovereign body.
The learned, counsel- the Queen's Counsel, the President's Counsel who
appeared for His Excellency, and- the President's Counsel who appeared for
the Intervenient-Petitioners in Applications Nos. 33/87 and 34/87 submitted
that the Provincial Units sought to be created by this Amendment must be
considered as the implementation of a directive principle of State policy
contained in Article 27(4) of the Constitution to wit the State shall strengthen
and broaden the democratic structure of Government and democratic rights of
the People by decentralising the administration and by affording all possible
opportunities to the People to participate at every level in
397
national life and in Government". The emphasis was on decentralising the
administration. The question arose, whether decentralising the administration
meant the extension of the Government Agent-Kachcheri administration of the
Province from the time of British rule, whether the later extensions of the
decentralisation of the administration by Local Government Units such as
Municipal Councils, Urban Councils and the present day bodies-District
Development Councils, Pradheshiya Sabhas and Gramodhaya Mandalayas,
(In fact the District Development Councils were established in the North and
Fast), were the Bodies intended by the phrase-decentralising the
administration in Article 27(4).
On the other hand learned counsel who supported the petitioners' cases that
the THIRTEENTH AMENDMENT was inconsistent with the Constitution
submitted that these Provincial Units created almost Federal Units or in the
least quasi federal Units and resulted in a federal structure of the State A

question was asked by the Court from the learned counsel who supported the
petitions Nos. 33/87 and 34/87, thus if it is your case that these Council Units
are not "Subsidiary Sovereign Bodies", how would you describe the nature
and content of these bodies, whether autonomous, or semi-autonomous or
any such? The answer was that he would describe these Provincial Units as
semi autonomous Units., I am of opinion that in a Unitary State such as ours
there "is no room even for semi-autonomous Units. Learned counsel for the
petitioners hose case was that the Provincial Councils were not units which
decentralised the administration but independent bodies, submitted that in
implementing the policy contained in Article 27(4) the State must also give
paramount consideration to the directive principle of State policy contained in
article 27(3) as follows:- "The State shall safeguard the independence,
sovereignty, unity and the territorial integrity of Sri Lanka", It was their
submission that the creation of these Provincial Councils was a violation of the
above Article.
I will now proceed to analyse the nature of-these Provincial Units with
reference to the legislative power conferred to the Units. The learned counsel
who supported the: THIRTEENTH AMENDMENT submitted that the legislative
power given to the Provincial Council was covered by Article 76(3) of the
Constitution, which is as follows :- "It shall not be a contravention of the
provisions of paragraph
398
1(1) of this Article for Parliament to make any yaw containing any provision
empowering any person or body to make subordinate legislation for prescribed
purposes, including the power
(a).
(b).
that is the learned counsel related the legislation by the Provincial Councils to
the category of subordinate legislation on the ground that it was the legislation
made by a body created by the Parliament and under the powers conferred by
the Parliament.
Mr. Choksy P.C. one of the counsel, who supported the Amendment on behalf
of His Excellency the President strenuously submitted that the modern
concept of what is subordinate legislation has advanced, and that, now, the
concept subordinate legislation takes into account that there was one supreme
Legislature and subordinate Legislatures created by this supreme body, hence

the legislation arising from the Provincial Council List in the Amendment will
be subordinate legislation in terms, of, Article 76(3) of the Constitution. Mr.
Choksy P.C. referred to the Scotland Act of 1978 passed by the Parliament of
the United Kingdom to give a legislative body to Scotland, which Act for
reasons not relevant to us, had not been implemented. He submitted that this
was an instance where the Unitary State of Britain having a supreme
Parliament gave powers of legislation to a legislative body in Scotland. He
submitted that there was some resemblance of this Scotland Act of 1978 to
the THIRTEENTH AMENDMENT. In my view in making this submission the
learned President's Counsel did not take into account two necessary factors:Firstly-was that Britain did not have a written Constitution. Britain had an
unwritten Constitution, a Unitary State with a supreme Parliament: The
Constitution being an unwritten Constitution, it was guided by constitutional
precedents and practices. Our Parliament is not supreme in that sense. When
we refer to the legislative power of our Parliament we must consider: it with
reference to Article 4 of our Constitution4(a) "the legislative power of the People shall be exercised by Parliament,
consisting of elected representatives of the People an by the People at a
Referendum"
399
We must take into account that under Article 3 "in the Republic of Sri Lanka
sovereignty is in the People". The Parliament is not supreme,. it is the
Parliament and the People that are supreme in Sri Lanka. And further Sri
Lanka has a written Constitution to guide the Legislation. When legislation is
mooted in Sri Lanka, one has to consider whether it is inconsistent with any
entrenched provisions (in that case Article 83 will be involved) or 'any other
provisions of our Constitution, (in which case Article 82(5) will apply). That is
the very question that has arisen in these References, whether the
THIRTEENTH. AMENDMENT is inconsistent with the Constitution to the
extent that a Referendum will also become necessary-Article 83.
Secondly whether any provision of law with erode the constitutional concept of
the Unitary State of Sri Lanka must also be considered in the political
background in which both the 1972 Constitution and the present 1978
Constitution have been made. Article 2 of the 1972 Constitution lays down.
The Republic of Sri Lanka is a Unitary State. There is the identical Article 2 in
the present Constitution (1978). The only reason that can be adduced for
incorporating this provision in the Constitution must be that both Constitutions
have. been drafted at a time when there was a demand for a Federal State of
Sri Lanka or a separate state for the North and East. In fact the 1978

Constitution has been drafted after the famous or what may even be calmed
infamous Vaddukoddai Resolution which called for a Separate state for the
North and East.
I am of the view that a construction advocated by learned President's Counsel
Mr. Choksy cannot be placed on the phrase subordinate legislation in Article
76(3) of the Constitution. The term "subordinate legislation' has an accepted
meaning in Constitutional Law. The Constitution of Sri Lanka (1972) had a
similar provision,
45(3)(a) The National State Assembly may by law confer the power of making
subordinate legislation for prescribed purposes on any person or body,
(b) whenever- any provision in an existing written law confers the power of
making subordinate legislation for prescribed purposes on any person or body,
such power shall be deemed to have been conferred by a law of the National
State Assembly."
400
A comparison of the above Articles 3(a) & (b) with Article 76(3) of the present
Constitution shows that the 1972 Constitution Articles are cleat and explicit on
the face of the Articles as to what is 'subordinate legislation. The term
subordinate legislation is a term of Constitutional law which is understood in a
certain sense. Two authorities on English Constitutional Law, Wade and
Phillips in their well known text Constitutional and Administrative Law state as
follows.
"the term statute law covers both Acts of Parliament and delegated legislation,
or as it is sometimes called subordinate IegisIation (underlining is mine for
emphasis) is made in the form of statutory instruments". Chapter 33,
Delegated Legislation, Page 564
These Learned authors further state as follows:- "delegated legislation is all
inevitable feature of the modern State for the following reasons:
(1) pressure upon Parliamentary time,
(2) technicality of subject matter,

(3) the need for flexibility,

(4) the state of emergency:
Chapter 33: Pages 556-567".
C. K. Allen - another authority on Constitutional law deals with this aspect of
law in his authoritative and well known book Law in the Making Chapter 7
Page 516 "Subordinate and Autonomic Legislation, and Page 521 Chief
Spheres of Delegated Legislation".
The Administration of Justice Bill of 1973 came up for consideration before the
Constitutional Court under the Constitution (1972). His Excellency the
President J. R. Jayewardene, then as Leader of the United National Party
gave notice to the Speaker that several provisos of the Administration of
Justice Bill are inconsistent with the Constitution (1972). The Constitutional
Court consisting of three Judges of the Supreme Court met to determine these
objections, and Mr. H. W. Jayewardene Q.C., with Mr. Mark Fernando and
several other counsel appeared for Mr. J. R. Jayewardene in support of the
objection. Objection had been taken that under clause 47 of the Bill the
Minister was given power to legislate which was contrary to the clause in the
Bill which said that the "National State Assembly may not abdicate, delegate,
or in any
401
manner alienate its legislative power". The Constitutional Court ruled as
follows:- We are of the view that clause 47 (1) empowers the Minister to make
Regulations to carry out the- purposes set out in that clause. A& wee, say is
subordinate legislation as contemplated is section 45 of the Constitution;
besides as we pointed out this regulation must come under clause 61 before
the National State Assembly for approval. If the National State Assembly does
not approve the regulation it can reject it thereby asserting its supremacy. As
we understand the words 'subordinate legislation', it means all legislation other
than that which r is passed by, the National State Assembly under the law
making powers in chapter 9 of the Constitution. We are also fortified by the
view expressed in Halisbury's Laws of England, Volume 36, page 476;
paragraph 723, which states as follows :"subordinate legislation, is legislation made by a per son or other than the
sovereign in Parliament by virtue, of powers conferred either by statute or by
legislation which, made under statutory Powers".

Therefore, this is "subordinate legislation", as is ordinarily understood and as

contemplated in section 45(3) of the Constitution: (Decisions of the
Constitutional Court of Sri Lanka Volume V 1973, -page 57 at 70) Article
45(3)(a) (b) of the Constitution (1972) almost corresponds to Articles 6,(b) &
(c) of the present Constitution The then en Constitutional Court has
determined the meaning of the phrase "subordinate legislation" in Article 45(3)
of the Constitution (1.97.2): On the rules of interpretation this Court his 6 hold
that the phrase Subordinate legislation used in Article 76(3) of o ion must bear
the same meaning. As the THIRTEENTH, AMENDMENT chapter -(a) has
been drafted on the lines of she relevant. Chapters of the Constitution of India,
it is relevant to pose this question Can the legislation passed by the
Legislative Councils 6f the 'States' in India be called "subordinate I
legislation"? I do not agree to the submissions that the legislation the
provincial Councils should be I classed as subordinate legislation in terms of
Articles 76(3) of he Constitution.
402
The learned counsel who had opposed this amendment have submitted that if
the THIRTEENTH AMENDMENT is incorporated into our Constitution, our
Constitution will have certain hallmarks of a Federal Constitution, that is(1) A written Constitution
(2) Division of the country into Units or Components,
(3) Division of Executive and Legislative Powers between the Centre and the
Units
(4) Division of state subjects into Lists as in this amendment, and such other
features, of a Federal State.
It has been strongly submitted that the legislative power granted to the
Provinces is a kind of power that erodes the supremacy of the Parliament and
the People, and also that certain powers granted to the Provincial Legislatures
restricts the supremacy of the Parliament and the People under our
Constitution, and as such is violative of Articles (2) & (3) of the Constitution
read with Articles 4 (a) and 4(b). It was also submitted that the learned
counsel who supported this Amendment has relied on Article 76(3) ignoring
the more important provisions of Article 76(1) "Parliament shall not abdicate or
in any manner alienate its legislative power, and shall not set up any authority
with any legislative-power". There was a similar provision in the Constitution
(1972) Article 45(1) "The National State Assembly may not abdicate, delegate

or in any, manner alienate its legislative power, nor may set up an authority
with any legislative power other than the power to make subordinate laws. It
Will be noted that the present Constitution Article 76(1) has dropped the word
"delegate" in Article 45(1) of the Constitution (1972) and kept the same phrase
in a more imperative way "shall not abdicate or in any manner alienate its
legislative power". It is of clear why the word "delegate" has been dropped.
The scope of the parallel Article, that is Article 45(1) of the Constitution (1972)
has been raised before the Constitutional Court in the objections made to the
Associated Newspapers of Ceylon Ltd. (Special Provisions) Bill heard on
24.6.73(Decisions of the Constitutional Court of Sri Lanka, Volume 1. 1973,
page 35 at page 38) In its ruling on this objection the Constitutional Court has
stated "Lastly, it is submitted that the provisions of clause 15(2) of the Bill are
inconsistent with sections 3, 4, 5, 44 and 45 of the Constitution, in that this
clause, if enacted into law, will constitute an abdication, delegation or
alienation, of the legislative power of the People which can be exercised by
the National State Assembly, to the
403
extent and in a manner prohibited by the Constitution for the reason that it
enables the Minister to nullify and modify the provisions of the Companies
Ordinance. The next reference to this objection is at page 54, and is as
follows:- Another contention which was not pressed by counsel was that
clause 15(2) of the Bill was inconsistent with sections 3, 4, 5, 44 and 45 of the
Constitution, in that this clause, if enacted into law, will constitute an
abdication; delegation, or other alienation of the legislative power of the
People which can be exercised by the National State Assembly to an extent
that it purports to empower the Minister to nullify, modify and amend the
provision of the Companies Ordinance. We see nothing inconsistent in this
provision with the Constitution. Unfortunately, the Constitutional Court has not
considered the interpretation of the phrase abdication, delegation, or other
alienation, of legislative power, probably because the contention was not
pressed by counsel. Article 45(1) of the Constitution particularly the word
"abdicate" was interpreted by the Constitutional Court in its decision on the
Companies (Special Provisions) Bill, in which case Mr. Mark Fernando the
learned President's Counsel who is appearing for the Intervenient-Petitioners
in Applications Nos. 33/87 and 34/87 has appeared. Mr. Mark Fernando P.C.
had objected to a clause in the above bill which vested power in the Minister to
issue written directions exempting certain Companies from the application of
the provisions of clause 2 of the Bill Mr. Mark Fernando P.C. has submitted
that the clause so empowering the Minister, would amount- to a delegation of
the legislative power of the National State Assembly which is prohibited by
section 45(1) of the Constitution. In that case, after considering all authorities,
the Constitutional Court accepted the interpretation placed by the then Acting
Attorney-General (now Senior Justice R. S. Wanasundera), which was as

follows:-"The learned Acting Attorney-General submitted that the word

'delegate' in Section 45(1) juxtaposed as it is between the words 'may not
abdicate' and or in any manner alienate necessarily means divest itself of, and
that only such legislation as divested the National State Assembly of its
legislative power would be inconsistent with section 45(1) of the Constitution.
This Constitutional Court then ruled as follows:- the modern State, which has
become so complex and would be increasingly so as many years pass by,
cannot be effectively and smoothly run without a certain amount of delegation
of limited powers to the executive provided the delegation does not involve
divestiture of the powers of the legislature (Decisions of the Constitutional
Court
404
of Sri Lanka Volume III, 1974, Page will be seen the word "delegate" in Article
45 of the Constitution (1972) has been given a very limited interpretation. This
interpretation cannot cover an instance such as the one before this Court
where the Parliament, and the People are divesting its power to a Provincial
Legislature.
I will now deal with the legislative power of the Provincial Council with
reference to two aspects(1) the legislative powers of the Provincial Council,
(2) the manner in which the provisions pertaining to the legislative power of
the Provincial Councils restrict and curtail the supreme power of the
Parliament Articles 3 and 4 (a)
I have set out earlier almost verbatim relevant Articles of the Amendment
giving legislative power to the Provincial Councils. The power of making
legislation is the power to legislate in respect of any matter set out in List I of
the Ninth Schedule described as the Provincial List. The legislative power of
the Parliament is restricted in this manner in this Amendment Bill. In terms of
Articles 154(a)(1) and 154(a)(2) only if the Provincial Council by resolution
decides not to exercise its powers in respect of the Provincial Councils. List or
the Concurrent List the Parliament may make laws on those matters in respect
of such Provincial Councils-Article 154(g)(8) is a provision which provides for a
statute made by the Provincial Council to prevail over a law made in respect of
a matter on the Provincial Councils List. This is an imperative provision that
"the law so long only as that statute is in force remains suspended and be
inoperative within that province". What I call the drastic provisions which
restrict and curtail the legislative' power of the Parliament and the people are
contained in Articles 154G(2) and 154G(3) cited above Article 154G sets

down" no Bill for the amendment or repeal of the provisions of this Chapter or
the Ninth Schedule shall become law except under the terms and conditions
set in Articles 154(2)(b) and 154(3)(b). These provisions restrict, curtail and
abrogate the powers of the Parliament (and of the People) to pass such law to
the extent of bringing into operation Articles 82 & 83 of the Constitution. That
is, such a Sill must be passed by the special majority of not less than twothirds and approved by the people at a Referendum. In fact though the so
called preamble to Chapter 17A of the Amendment states that the provisions
of this Chapter shall be subject to Article 83 and shall not
405
affect or derogate from such Article the said Articles 154G(2)(b) and (3)(b)
introduced in this Chapter, an Article comparable to Article 83. Article 82(7)
states that Amendment includes an "addition". Articles 154G(2) and (3) can
only be considered as an Amendment of Article 83 by means of an addition to
this Article. This Amendment by way of addition alone requires that this
Amendment Bill should be approved by the people at a Referendum.
Mr. E. S. Amerasinghe P.C. Who appeared for the Petitioner-Young Men's
Buddhist Association, Colombo in petition No. 16/87 lamented that in respect
of the said two Articles, the Parliament was abdicating and alienating its power
without the consent of the people, but to get back that power which it
abdicates and alienates the Parliament will have to go to the People. The
legislative power that I have referred to above violates Article 3, read with
Article 4(b) of the Constitution, that is the Sovereignty of the People and the
legislative power of the People exercised through the Parliament.
BUDDHISM
I will now refer to another matter very ably urged by Mr. E. S. Amerasinghe
P.C. who appeared for the Young Men's Buddhist Association, in his
inimitable, courteous, but forceful style. Mr. Amerasinghe P.C. submitted that
the Ninth Schedule List I (Provincial Councils List) in clause 25(2) assigns to
the Provincial Council exclusively the subject ancient and historical
monuments and records other than those declared by or under law made by
Parliament to be of national importance. There is no explanation as to what
are these "ancient and historical monuments". There is no reference to any
place of Buddhist worship or worship of any other religions, Christian and
Muslim. There is no reference to those that can be called recent place of
worship, assuming that he word "monuments", covers places of religious
worship.
LIST II-(Reserved List)

Has a clause which comes under.. the. head Provincial and Occupational
training (Page 37) (seems to be unnumbered) as follows "National Archives,
Archaeological activities and sites, and this would include ancient and
historical monuments and records". These subjects also do not cover up
directly religious places of worship.
406
LIST III-(Concurrent List)
There is clause 34 Archaeological sites and remains. In none of these lists is
mentioned directly religious places of worship, and land belonging to religious
institutions-recent or otherwise.
Mr. Amerasinghe P.C. has in the written submissions of the said Application
produced extracts from the report of the eminent Chief Justice Sansoni, which
sets out a number of instances of proved deliberate desecration and
destruction of Buddhist places of worship. In the List of subjects which are in
the Ninth Schedule to this Amendment there is no reference whatsoever as to
whose duty it was (which is really 'the duty of the State') 'to protect and 'foster
the Buddha Sasana, while assuring to all religions rights granted by Articles 10
and 14(1) (e)'.
I hold that to this extent the Amendment is also violative of Article 9 of the
Constitution which is related to Article 83 of the Constitution.
OATH
Articles 154B(6) and 154F(7) has presented an Oath for the Governor and the
Chief Minister respectively as set out in the Fourth Schedule. The Provincial
Councils Bill Section 4 prescribes the Oath set out in the Fourth Schedule to
the Constitution for a member of the Provincial Council. The Fourth Schedule
sets out the Oath as follows
'I............affirm ............. that I will be faithful to the Republic of Sri Lanka, and
that I will to the best of my ability uphold and defend the Constitution of the
Democratic Socialist Republic of Sri Lanka'. Article 165(1) of the Constitution
provides that 'every public officer', Judicial Officer and every other-person as
is required by the Constitution to take an Oath, before the prescribed date and
if he does not do so he shall cease to be in service or hold office. Articles 32
and 53 provide that the President and the Cabinet of Ministers respectively,
should take the Oath set out in the Fourth Schedule. The Sixth Amendment to
the Constitution which came into force on 8th August 1983 amended the Oath

that has to betaken under the Constitution by the Amending Article 157A(7)
which brought in a new Oath of office set out in the Amendment as the
Seventh Schedule. This Amendment lays down that 'all persons required to
take an Oath of office shall take Oath in the form set out in the Seventh
Schedule. Certain penal consequences were provided for those who did not
take
407
this Oath within one month of the appointment. The Oath set out in the
Seventh Schedule is as follows:- "I affirm.............that I will uphold and defend
the Constitution...... of Sri Lanka and that I will not, directly or indirectly, in or
outside Sri Lanka.. support, espouse, promote, finance, encourage or
advocate the establishment of a separate State within territory of Sri Lanka"..
No apparent reason can be found in this THIRTEENTH AMENDMENT for
dropping the Oath in the Seventh Schedule which is a part and parcel of the
Constitution and for reviving the Oath in the Fourth Schedule and must be
deemed to be repealed by this Amendment to the Constitution. A Sovereign
State cannot have two Oaths in its Constitution for different classes of citizens.
I am of the view that, if the Oath, in the now repealed Fourth Schedule is to be
revived it will be an Amendment, of the Sixth Amendment and its Seventh
Schedule. The reference to the Fourth Schedule is an openly unconstitutional
act of draftsmanship which affects the Sovereignty of the People referred to in
Article 3. An Oath of office is a mode by which a State asserts its Sovereignty,
and a mode by which a subject of the state submits to the Sovereignty of the
State. I am of the view that the reference to a repealed Oath-Fourth Schedule
of the Constitution is violative of Article 3 of the Constitution.
For the reasons given by me above, and for many other reasons which cannot
be set out for lack of time, I hold that the THIRTEENTH AMENDMENT and the
consequent Provincial Councils Bill are violative of Articles 2 and 3 of the
Constitution, read with the relevant subsections of Article 4, and that in terms
of Article 83, the THIRTEENTH AMENDMENT and the Provincial Councils Bill
require approval by the People at a Referendum.
I have read the order made by my- brother Wanasundera, J., and I fully agree
with the order which has held that for many multitudinous reasons that the
THIRTEENTH AMENDMENT requires a Referendum.
L. H. DE ALWIS, J. and H. A. G.: DE SILVA, J.

A Bill to amend the Constitution of Sri Lanka

(Thirteenth Amendment to the Constitution)
Our view is that the provisions of the Thirteenth Amendment to the
Constitution, referred to below, require the approval by the People at a
Referendum by virtue of the provisions of Article 83 of the Constitution.
408
Section 4 of the Thirteenth Amendment to the Constitution which is described
as "An Act to amend the Constitution of the Democratic Socialist Republic of
Sri Lanka" provides that "Chapter XVIIA" containing Articles 154A to 154T be
inserted after Article 154 of the Constitution.
(1) Chapter XVIIA commences as follows:
"The provisions of this Chapter shall be subject to Articles 1, 2, 3, 6, 7, 8, 9,
10, 11, 30(2), 62(2), and 83 and shall not affect or derogate from.; or be read
or construed as affecting or derogating from, any such Article, but, save as
aforesaid, nothing contained in the Constitution or any other law in force on
the date on which this Chapter comes into force shall be interpreted as
derogating from the provisions of this Chapter. The provisions of such other
law shall, mutatis mutandis, apply".
These words, described by some Counsel at the hearing, as a preamble",
appear at, first sight to be ambiguous. But if we consider that this, Chapter
deals with the establishment of Provincial Councils and their powers, it would
mean that this Chapter overrides the provisions of the Constitution other than
the entrenched Articles. This amounts to a diminution of the legislative power
of the People who gave their mandate to Parliament to enact the Constitution
and will result in an erosion of the Sovereignty of the People as enshrined in
Article 3 of the Constitution
This provision thus contravenes Articles 3 and 4(a) of the Constitution and
requires to be passed by the two-thirds majority approved by the People at a
Referendum by virtue of the provisions of Article Z3
(2) Article 154G(2) enacts that:
"No Bill for the amendment or repeal of the provisions of this Chapter or the.
Ninth Schedule shall become law unless such Bill has been referred by the
President, after its publication in the Gazette and before it is placed on the

Order Paper of Parliament, to every Provincial Council for the expression of its
view thereon, within such period as may be specified in the reference, and
(a) where every such Council agrees to the amendment. or repeal and such
Bill is passed by a majority of the Members of Parliament present and voting
Or
409
(b) where one or more Councils do not agree to the amendment or repeal
such Bill is
(1) passed by the special majority required by Article 82 ; and
(2) approved by the People at a Referendum"
This Article provides that a special majority and the approval by the People at
a Referendum are, required for the amendment of this Chapter or the Ninth
Schedule thereto, in the event of one or more Provincial Councils not agreeing
to the amendment or repeal of the Bill,
Article 75 of the Constitution provides that "the Parliament shall have power to
make laws including laws having retrospective effect and repealing or
amending any provision of the Constitution or adding any provision to the
Constitution.............
Article 154G(2) therefore imposes a fetter on. the Parliament in amending or
repealing Chapter XVIIA or the Ninth Schedule and thereby; abridges the
Sovereignty of the People, in the exercise of its legislative power by
Parliament, in contravention of Articles 3 and 4(a) of the Constitution.
(3) Article 154G(3) which relates to Bills concerning matters set out in the
Provincial Councils List provides as follows:
No Bill in respect of any matter set out in the Provincial Councils List shall
become law unless such Bill has been referred by the President, after its
publication in the Gazette and before it is placed on the Order Paper of
Parliament, to every Provincial Council for the expression of its views thereon,
within such period as may be specified in the reference, and

(a) where every such Council agrees to the passing of the Bill, such Bill is
passed by a majority of the Members of Parliament present and voting; or
(b) where one or more Councils do not agree to the passing of the Bill, such
Bill is
(i) passed by the special majority required by Article 82; and
(ii) approved by the People at a Referendum.
Provided that where on such reference, some but not all the Provincial
Councils agree to the passing of a Bill, such Bill shall become law applicable
only to the Provinces for which the Provincial Councils agreeing to the Bill
have been established, upon such Bill being passed by a majority of the
Members of Parliament present and voting".
410
As in the preceding Sub-Article, a special majority. and approval by the People
at a Referendum are required even for the passage of a Bill relating to a
matter in the Provincial Councils List, in respect of a Provincial Council which
does not agree to the passing of the gill. This again restricts the power of
Parliament to pass an ordinary Bill on a subject in the Provincial Councils List
except by a special majority and a Referendum. For the same reasons stated
earlier the Sovereignty of the People enshrined in Article 3 read with Article
4(a) of the Constitution is eroded.
Articles 154G(2) and (3) therefore, also require to be passed by the two-thirds
majority and approved by the People at a Referendum, by virtue of the
provisions of Article 83.
(4) The provisions of Articles 154G(2) and (3) are in truth and in fact an
addition to the: Articles entrenched in Article 83 of the Constitution. An
"addition" is included in the word "amendment" by virtue of Article 82(7).
Hence the amendment of Article 83 of the Constitution by the addition of
Articles 154G(2) and (3) will require to be passed by the two thirds majority
referred to in Article 83 and approved by the People at a Referendum.
After we had prepared our determination we have had the benefit of perusing
the determination of Wanasundera, J. We find that all the matters dealt with by
us are covered by Wanasundera, J. We are further in entire agreement with
him on all the other matters referred to in his determination.

PROVINCIAL COUNCILS BILL

Determination
In view of our determination on the Bill-titled "Thirteenth Amendment to the
Constitution", we are of the view that a determination on the questions raised
in the reference by His Excellency the President relating to the Provincial
Councils Bill be given after the Thirteenth Amendment becomes law.
Referendum unnecessary except for Clauses 154 G(2)(b) and (3) (b) of
Thirteenth Amendment .