A partner in the UPFA will challenge the constitutionality of the 13th Amendment to the Constitution, its lawyer said yesterday. Chinthaka Mendis, Attorney-at-Law told the Sunday Times that he will file a petition in the Supreme Court next week arguing that the amendment has been “illegally passed” without recourse to due process. Mr. Mendis said the [...]

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Thirteenth Amendment illegally passed in House, NFF to tell SC

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A partner in the UPFA will challenge the constitutionality of the 13th Amendment to the Constitution, its lawyer said yesterday. Chinthaka Mendis, Attorney-at-Law told the Sunday Times that he will file a petition in the Supreme Court next week arguing that the amendment has been “illegally passed” without recourse to due process.

Mr. Mendis said the National Freedom Front (NFF) initially wanted to complain to the Court on November 14, the day on which the 13th Amendment became law 25 years ago in 1987, but will now be filing the petition in a few weeks time.

Though the Indo-Lanka Accord had the characteristics of an international treaty, much of its provisions were focused on internal matters of Sri Lanka, Mr Mendis said spelling out the basis on which the 13th Amendment will be challenged.

Chinthaka Mendis: Lawyer for the NFF

Most importantly, it represented an interference in the internal affairs of Sri Lanka on behalf of the Sri Lankan Tamils who ‘are our citizens’, Mr. Mendis argued. Continuing, he said the actions and omissions on the part of India and with the absence of Tamil representation, the Accord necessarily had to fail although the Sri Lankan Government went all the way to implement it on its own, believing in Indian assurances, he charged.

He pointed out that the 13th Amendment to the Constitution was passed and the Provincial Councils Bill was formulated to give effect to the obligations arising from the Indo-Lanka Peace Accord signed on July 29, 1987.

The 13th Amendment sought to amend the Constitution 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, the Provincial Councils Bill provided implementing legislation to the 13th Amendment to the Constitution.

He alleged the J.R. Jayewardene Government followed a dubious course in the process of the enactment.
“We should make these dealings public,” he said.

The 13th Amendment Bill was placed on the Order Paper of Parliament on October 9, 1987. The then President proceeded to send the Bill to the Supreme Court under Articles 120 and 121 to determine ‘whether the 13th Amendment required the approval of the people at a referendum.’

“In respect of the Provincial Council Bill, he asked the Court two specific questions, whether (a) the Bill or any provision thereof, is inconsistent with the Constitution and (b) if so, whether the Bill, or any provision thereof requires the approval by the people at a referendum by virtue of the provisions of Article 8.3.”
Consequently, Mr. Mendis pointed out, the issue before the Supreme Court was to decide whether the Bills could be enacted by Parliament by only a 2/3rds majority, or it required a 2/3rds majority plus a referendum.

“The final outcome of the reference to the Supreme Court gave rise to a complicated and complex result,” he said adding that people are still confused today.

Chief Justice Sharvananda and three judges namely Justices- E.A.D. Atukorale, Percy Colin-Thome and H.D. Thambiah, decided that the Bills did not need a referendum as the amendment would not affect the unitary nature of the state.

Nevertheless, five judges, Justices R.S. Wanasundara, O.S.M. Seneviratne in separate judgments and Justice L.H. de Alwis and H.A.G. de Silva in a joint judgment along with Justice Parinda Ranasinghe in a separate judgment (conceptually agreed with Chief justice Sharvananda but dissented on Article 154 (g)

(2) (b) and 3 (b) of the Bill) in that the Bills required a referendum for the enactment while pointing out the numerous violations of the Constitution.

“So, in the end eight out of the nine Judges of the Court were equally divided four to four,” Mr. Mendis said.
The operative judgment constituting the decision of the Court hung on Justice Ranasinghe’s judgment, he pointed out.

Summing up Chief Justice Sharvananda Justice Ranasinghe’s decision noted that “the determination of Justice K.A.P. Ranasinghe is that the provisions of Clause 154,G (2) (b) and 3 (b) of the Bill amending the Constitution of Sri Lanka (13th Amendment to the Constitution) requires approval of the People at a Referendum by virtue of the provisions of Article 83″.

Justice Ranasinghe thus held because the provisions would affect the unitary nature of the state. Therefore, people who have the sovereign power should approve it at a referendum, Mr. Mendis argued.

The majority of the five judges held that the Bill was unconstitutional with Justice Ranasinghe objecting to Article 154 G (2) (b) and (3) (b) and thus requiring approval by the people at a referendum, since it affected the unitary nature of the country.

But putting together Justice Ranasinghe’s judgment, with that of Chief Justice Sharvananda and three other judges, some sources wrongly interpreted the judgment stating that the majority decision of the court was that the Bill could be passed with a two thirds majority.

In terms of Article 123 (2) of the Constitution the Supreme Court has the discretion to suggest amendments which would make the Bill consistent. In fact, such legal guidance would involve the redrafting of the disputed provision.

In this regard Justice Parinda Ranasinghe noted that he would not make any suggestions because the counsel for the petitioners was not interested in pursuing such suggestions at the hearing.
“It is clear that Justice Ranasinghe had not come out with any suggestions to pass the Bill only with a two thirds majority but with a two thirds majority and the approval of the people at a referendum,” Mr. Mendis said.

“There is no doubt about it,” he added. Accordingly, the Bills were not approved by the Supreme Court and their unconstitutionality was upheld by a majority of the judges. “Despite all this, Parliament passed the Bill which was declared unconstitutional by a majority judgment of the Supreme Court.”

If the decision is that the Bill is unconstitutional, it must be abandoned and a fresh Bill, duly corrected, must be submitted again to the Supreme Court. “Clearly, this was not done,” he pointed out. “But these two Bills were not resubmitted for a second time to the Supreme Court,” he said.

However, he said the Bills were presented directly to Parliament, bypassing the Supreme Court. Thus the Constitution was amended without the approval of the people at the referendum as directed by the Supreme Court.

“The majority of the five judges also decided the Provincial Councils Bill should have been referred to the Court only after the first Bill was enacted,” he pointed out adding that this Bill too was presented to Parliament along with the 13th Amendment Bill. Therefore, it is clear that this amendment was made unilaterally by the Government, violating many fundamental constitutional provisions, thereby taking over to itself judicial power in contempt of the Supreme Court and violating procedural due process and the tripartite division of the powers of government in the Constitution, he charged.

“This was done probably because of the erroneous opinion of then Attorney General Shiva Pasupathi about the law was misconceived or ill-conceived by design or ignorance.

“With regard to the Provincial Councils Bill Chief Justice Sharvananda’s ruling was that ‘Once the Bill is passed (apparently the 13th Amendment) and the Constitution amended accordingly, the Provincial Councils Bill will not be inconsistent with the so amended Constitution.’”

But the 13th Amendment to the Constitution only received the Speaker’s certificate on November 14, 1987, two days after the vote for the Provincial Councils Bill, which is clearly a violation of the Supreme Court judgment, Mr. Mendis contended.

He emphasised that his attempt is to proceed with this Application before the Supreme Court is to get a declaration that the 13th Amendment to the Constitution is null and void and has no legal effect.




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