Centre for Policy Alternatives on 6 August, 2013

Constitutionality of bill titled ‘The Twenty First Amendment to the Constitution’

Categories: DocumentsPetitionPublic Interest Litigation submissions

A Bill titled “The Twenty First Amendment to the Constitution”, a Private Member’s Bill presented by the Ven. Athuraliye Rathana Thero, M.P. of the Jathika Hela Urumaya (JHU), was placed on the Order Paper of Parliament on 18th June 2013. The proposed Bill, if passed by Parliament would have the effect of repealing Chapter XVIIA of the Constitution, which was introduced by the Thirteenth Amendment to the Constitution. The Centre for Policy Alternatives (CPA) filed a petition in the Supreme Court on 24th June 2013 challenging the constitutionality of this Bill.

According to Article 154(G)(2) of the Constitution, no Bill for the amendment or repeal of the provisions of Chapter XVIIA becomes law, unless it has been referred by the President, after its publication in the Gazette and before it is placed to the Order Paper of Parliament, to every Provincial Council. Since no Provincial Council had been consulted in respect of this Bill, CPA contended that it cannot be enacted into law unless there was due compliance with the mandatory provisions of Article 154(G) (2). CPA believes this is an important procedure designed and included in the Constitution to encourage consultation and co-operation between Provincial Councils and the central government, and as a crucial safeguard for provincial autonomy under the scheme of devolution introduced by the Thirteenth Amendment.

During the course of argument before the Supreme Court, the judges hearing the case raised the concern – shared by Counsel representing the Attorney General’s Department as well as the Intervenient-Petitioners – that the Court’s jurisdiction is limited to Article 120 proviso (a) in the case of a Bill for the amendment of the Constitution. In response to this suggestion, CPA in its “further written submissions” contended that Article 154(G)(2) was a specific provision brought about by the Thirteenth Amendment for safeguarding devolution, which was not contemplated at the time of the enactment of Article 120 in 1978. Since Article 154(G) (2) creates a specific requirement of consultation in relation to a specified and limited category of constitutional amendments (i.e., those affecting the provisions of Chapter XVIIA), it seemed clear to us that the specific provisions of Article 154(G) (2) must be given effect to in this case, where the impugned Bill sought to abolish Chapter XVIIA as a whole. This contention was based on the need to give provisions of the Constitution a purposive and workable interpretation, as opposed to an interpretation, which would make certain provisions meaningless and irrelevant. Therefore it was CPA’s position that after the enactment of the Thirteenth Amendment, the restrictive interpretation suggested in relation to Article 120 was no longer reasonably possible.

There was a further objection that Section 3 of the Parliament (Powers and Privileges) Act precludes the Supreme Court from inquiring into the validity of the process by which Bills are placed on the Order Paper of Parliament. In response, CPA contended that the identical objection had been taken up in a previous case in which the Court had dealt exhaustively with the reasons as to why this objection was not correct. CPA also drew the attention of the Court to several of its own judgments, which inquired and pronounced upon the question of as to whether a Bill was properly placed on the Order Paper of Parliament.

In its Special Determination on the Twenty First Amendment to the Constitution Bill, which was placed before Parliament on 12th July 2013, the Supreme Court stated that:

  • In terms of Section 3 of Parliament (Powers and Privileges) Act incorporated into Article 67 of the Constitution, the placement of the Bill on the Order Paper was part of parliamentary proceedings that took place on 18th June 2013, and that the Supreme Court is denuded of jurisdiction to impeach proceedings in Parliament.
  • The petition filed by the petitioner is misconceived in law and premised on a footing in contravention of the jurisdiction conferred on the Supreme Court by proviso (a) to Article 120 read with Article 124 of the Constitution.

Beyond this, the Supreme Court did not address any of the arguments addressed to it by CPA (specifically in its further written submissions) and held that it cannot grant the determinations that CPA had prayed for in its petition. Finally, it may also be added that in a curious break from past practice the petitioner’s name does not appear on the face of the record of the Supreme Court’s determination published in the Official Report of the Parliamentary Debates on 12th July 2013, although the names of the Intervenient-Petitioners are as usual mentioned.