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Controversial Provincial Councils (Amendment) Act: The procedure and the challenges
The Provincial Councils (Amend) Act No. 17 of 2017 was passed in Parliament on Sept. 20 and certified by the Speaker on Sept. 22. There has arisen a great deal of controversy and debate regarding the passage of the Bill and its enactment.
The Bill was presented to the House on July 26 and had its first reading on Sept. 20. It was taken up for its second reading and passed with 154 voting for and 43 against. At the end of the committee stage and third reading, the Bill was passed with 157 votes for and 37 against. Two days later the Bill was certified by the Speaker and became Act No. 17 of 2017.
Much of the controversy and debate has arisen as a result of many amendments being moved at the committee stage. It is argued that these amendments were not made available earlier when the Bill was gazetted on Aug. 3; nor were they made available to the members at the second reading stage; and so the members had no opportunity to study in depth the contents of the amendments.
In a sense the argument is correct except that Standing Orders of the House 37-40 provide for in detail the procedure of moving amendments at the committee stage. This is recognised parliamentary procedure and is practised and followed in all parliaments throughout the world. Standing Order 38 provides the form in which amendments can be moved and subsection 3 stipulates that an amendment must be relevant to the stipulation that each amendment proposed shall be examined by the Attorney General in terms of Article 77 of the Constitution.
This lays down the procedure for the Attorney General to examine every Bill and to lay down the procedure for any provision which cannot be validly passed except by the special majority prescribed by the Constitution. It further states that in the case of an amendment proposed to a Bill in Parliament, the Attorney General shall communicate his opinion to the Speaker at the stage when the Bill is ready to be put to Parliament for acceptance.
It is understood that when the committee stage amendments were moved by the minister on behalf of the Government, the Attorney General had submitted his opinion to the Speaker indicating that all the amendments required a two thirds majority of the members.
It is correct that when the original Bill No. 195 was presented to the House on July 26 it carried only two amendments to the original Act No. 2 of 1988. An amendment was made to Section 13 of the principal enactment to provide for 30% of the total candidates to be female.
It is also correct that at the committee stage of this Bill, many amendments were moved including a clause to set up a Delimitation Committee of five persons to be approved by the President. Other amendments moved were to the principal enactment relate to names of political parties, election of Members of Provincial Councils, ballot boxes etc.
Erksine May at P 496 under the subheading ‘object of an amendment and effect on debate’ states thus:
“The object of an amendment may be either to modify a question in such a way as to increase its acceptability or to present to the House a different proposition as an alternative to the original question.”
It should also be borne in mind that the Constitution in Clause 80(3) specifically states thus: “Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed thereon, 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.”
Our attention has been drawn to the move made by the retired Chief Justice Sarath N. Silva to move a fundamental rights petition in the Supreme Court to contest the validity of the Speaker’s Certificate placed on the Bill and placing before court facts relating to the absence of amendments moved at committee stage in the Bill gazetted or when the Bill was presented to the House or during the second Reading of the Bill. This is correct. In his petition to the Supreme Court, he also calls for court to determine the validity of the Speaker’s Certificate on the Bill. Since this is a matter before the Supreme Court, one presumes that a correct decision will be given and the matter should rest there.