Niran Anketell
The Nineteenth Amendment to the Constitution, eventually certified into law on 15th May 2015, was in line with President Sirisena and the common opposition’s general campaign theme of promoting good governance and the rule of law. What was notable about that campaign was that it skirted the vexed question of the devolution of powers, choosing instead to maintain silence on the issue. The 100-day programme did not envisage any direct attempt to address devolution either. Even the Tamil National Alliance (TNA) found this strategy agreeable, on condition that a second slew of constitutional reform efforts once the 100-day programme was over would revert to providing due attention to the ‘national question.’ It was in this context that the Nineteenth Amendment was drafted. This essay considers whether, despite this contrived lack of interest in questions of devolution and autonomy, the Nineteenth Amendment – its text, the jurisprudence of the Supreme Court in the Court’s assessment of it, and its implementation – have any implications for devolution and power-sharing, particularly in respect of executive power. The tiered relationship between the President, the Governor, and the Chief Minister (with the Board of Ministers) characterises the constitutional scheme in respect of executive power at the provincial level. In this context, does the Nineteenth Amendment impact in any way on the nature of these interrelationships? Moreover, does the Supreme Court’s treatment, or non-treatment, of the ‘advice clauses’ in the draft Nineteenth Amendment, as well as the text of the Nineteenth Amendment, have any relevance for the ‘advice clause’ found in the Thirteenth Amendment? How may presidential decision-making power be constrained at the provincial level in the same manner as it is now constrained at the central level?
It is not the object of this essay to engage in a detailed study of the provisions of the Nineteenth Amendment concerning executive power. The final text has the effect of constraining presidential power by way of re-introducing the term limit; restricting the ability of the President to dissolve Parliament at will; reintroducing the Constitutional Council; limiting the scope of presidential immunity; and importantly, stipulating that the President’s choice in identifying Members of Parliament to sit on the Cabinet of Ministers is to be exercised on ‘the advice of the Prime Minister.’ These changes do not appear to affect the scheme and functioning of devolution in any direct way. The increased power vested in the Prime Minister over the Cabinet of Ministers by the Nineteenth Amendment would mean that provincial executive functionaries such as the Chief Minister would be forced to interact more directly with the Prime Minister and Cabinet, rather than merely with the President. But these are largely mediated by politics, and text of the amendment by itself certainly does not appear to influence centre and province relations in any material way.
The second, and far more interesting, question is whether the Supreme Court’s determination on the Nineteenth Amendment Bill as well as the final Nineteenth Amendment Act itself, have any implications – direct or otherwise – on the devolution of power. Before embarking on such an analysis, it is important to note that the final text of the amendment that found passage through Parliament was significantly different to the text initially gazetted. Further, the Attorney General informed the Supreme Court ahead of the commencement of hearings on the first day fixed for hearing challenges to the Nineteenth Amendment Bill that the government would move a number of substantive amendments to the Bill on the floor of the house of Parliament. The Court was invited to consider whether these amendments also involve any inconsistency with an entrenched provision. These amendments presented by the Attorney General included proposed Article 33A (2) and (3) which stipulated that, except with respect to the appointment of the Prime Minister ‘or as otherwise required by the Constitution’, the President shall act on the advice of the Prime Minister, and that while he may require the Prime Minister to reconsider his advice, he was ultimately bound by the decisions of Parliament or the Prime Minister as the case may be. These provisions would later be excluded from the Bill that eventually found passage through Parliament.
With respect to devolution, however, it is notable that the Thirteenth Amendment to the Constitution also contains two key advice clauses, in Article 154F(1) where the Governor is mandated to act on the advice of the Board of Ministers and Chief Minister, and in Item 1:3 in Appendix II of Schedule 9 of the Constitution relating to the disposition of state land.
A few introductory notes are warranted. First, the advice clause in proposed Article 33A(2) of the Bill was introduced through the set of revisions forwarded to the Court by the Attorney General, and did not feature in the gazetted Bill. Second, the Supreme Court determination does not make any specific reference to the advice clause in proposed Article 33A(2). Thus, some may claim that the Supreme Court only properly had before it the text of the gazetted version of the Bill, in which the advice clause from proposed Article 33A(2) of the Bill was absent, and that this means the Supreme Court never had opportunity to consider that advice clause. This, I argue, is untenable. What is not in dispute is that the Attorney General did bring to the notice of court a number of proposed revisions including the advice clause in proposed Article 33A(2) of the Bill. In terms of the practice of the Supreme Court when hearing Bill determinations, this was not irregular. In many such cases, suggested revisions and amendments are proposed, discussed, and considered by the Court. In fact, the Court’s determination alludes to some of these revisions pertaining to the right to information.[1] Further, the determination ends with the note that the judges have “considered the remaining provisions of the Bill” and that they “do not see any other matters that would require consideration by this court in terms of Article 83 of the Constitution.”[2] Thus, I claim that it reasonable to assume that, notwithstanding the absence of any specific treatment of the advice clause, the Supreme Court found that this particular advice was compatible with the entrenched clauses of the constitution.
The most notable advice clause found in the Sri Lankan constitution has continued to be that contained in Article 154F (1), introduced by the Thirteenth Amendment, which reads:
“[t]here shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advise the Governor of a Province in the exercise of his functions. 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.”
Notwithstanding this clause, which on its face appears to place real executive decision-making power in the Board of Ministers and Chief Minister, Chief Justice Sharvananda’s opinion in the Thirteenth Amendment Bill determination sought to limit the scope of the devolved powers. Reading into this provision the ultimate presidential control over decision-making at the provincial level, which would supersede the advice of the Board of Ministers, he wrote:
“[U]nder 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 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.”[3]
Thus, Chief Justice Sharvananda appears to rely on the supposed ouster clause in Article 154F(2).[4] Notably however, Justice Wanasundera, in his main dissenting judgment, disagreed with the Chief Justice’s reading of the advice clause, stating:
[I]n 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 law 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 as 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.”[5]
From a simple textual reading, the effect of Article 154F (2) appears to be that while the situations in which the Governor is not bound by the advice of the Board of Ministers is limited to those in which the constitution requires him to exercise his discretion, the Governor’s discretion in determining whether the constitution requires him to exercise his own discretion is final and cannot be questioned in a court of law. Thus the power of the Board of Ministers to bind the Governor through their advice is not justiciable as against the Governor. Because Article 154F(2) requires the Governor to exercise his discretion on the President’s directions, Chief Justice Sharvananda was led to the conclusion that the President’s directions to the Governor which superseded the advice of the Board of Ministers would be legally binding, hence warranting action in terms of Article 154 (K) and (L) if the provincial administration did not comply with the President’s directions. Justice Wanasundera’s view, however, appears to have been that the text of Article 154F(1) required the Governor to act on the advice of the Board of Ministers, regardless of whether or not the Governor’s decisions could be challenged in a court of law.
To date – unsurprisingly, because of the ouster clause in Article 154F(2) – the Supreme Court has not clarified the position with respect to the advice clause. Is the Governor legally bound to give effect to the advice of the Board of Ministers, or is he in all circumstances bound by the directions of the President?
The Supreme Court’s Nineteenth Amendment Bill determination is of use in interpreting the Thirteenth Amendment’s ouster clause, because it relates to the question of whether or not the vesting of actual executive power in the Prime Minister through the advice clause in the Nineteenth Amendment involved any alienation of executive powers vested with the President. If this were not the case, and the advice clause in Article 33A (2) and (3) were to be assumed legal – as it must, given the Nineteenth Amendment determination – then presumably there would no bar to the genuine divestiture of real executive power from the President to the Board of Ministers of the Province. In short, if the retention of nominal decision-making authority in the President or Governor, as the case may be, saves an advice clause from incompatibility with a constitutional bar to alienation of power, then neither Article 4(b) read with Article 3, nor Article 2, could stand in the way of the transfer of power from the President or his agent the Governor to the Prime Minister and Board of Ministers, respectively, through advice clauses binding the President or Governor. This is why the question of whether or not the Supreme Court considered and cleared the advice clause in proposed Article 33A (2) and (3) is of such vital importance.
There is yet another way, in this case the text of the Nineteenth Amendment Act, could affect the practice of devolution. As I have discussed earlier, the Governor’s discretion in determining the limits of his own discretion – his compétence de la competence – is the subject of an ouster clause. However, his discretion is always to be exercised on the President’s directions. Thus, the effective decision-maker in respect of the Governor’s discretion is the President and not the Governor. Nevertheless, the President is not covered by the ouster clause in Article 154F(2). Thus, presidential directions to the Governor are not beyond judicial review. Despite this, the ouster clause in Article 35 of the constitution preventing the initiation of suits against the President closed the door to direct challenge of such presidential directions.[6] That was until the passage of the Nineteenth Amendment. The proviso to Article 35(1) introduced by the Nineteenth Amendment now permits the initiation of fundamental rights petitions to the Supreme Court against the President. As such, there is no reason as to why presidential directions to the Governor – either to exercise his discretion on a certain subject notwithstanding the advice of the Board of Ministers, or to exercise his discretion in some other manner – cannot be subjected to judicial review. Such a challenge would not attract the ouster clause in Article 154F(2) because the decision-maker being challenged is the President and not the Governor.
The resulting position in view of this analysis is that the Nineteenth Amendment determination by the Supreme Court, as well as the restrictions on the scope of presidential immunity in the Nineteenth Amendment, appear to have some implications for the law concerning the devolution of power in Sri Lanka under the Thirteenth Amendment. The Nineteenth Amendment process – perhaps entirely unwittingly – has altered the way in which the Thirteenth Amendment scheme could be implemented. While these observations may well become academic in light of the plans for a new constitution, or at least major constitutional amendments, that would as promised embody a new devolution settlement that goes beyond the Thirteenth Amendment, the Nineteenth Amendment also highlights the critical importance of such modifications.
The Nineteenth Amendment’s imposition of procedural and substantive limitations on presidential power in respect of powers reserved to the centre was supported unanimously in Parliament and has come to be viewed as essential to strengthening Sri Lanka’s democracy. The current constitutional reform process is also expected to further weaken, if not abolish outright, the presidential system of government. Despite this, and barring the implications on devolution discussed in this essay, the constitution does not constrain presidential and gubernatorial decision-making powers in the Province in the same way. The result is an imbalance in the system, due to the constriction of presidential powers at the centre while simultaneously perpetuating presidential power over the provincial government. This situation is clearly anomalous and must swiftly be addressed. Devolution of powers in the context of Sri Lanka is warranted both as tool through which to accommodate the aspiration of the Tamil and Muslim people to a greater share of state power than they now enjoy, and to deepen Sri Lanka’s democracy by diffusing decision-making power more evenly throughout the country. A stronger central executive at the provincial level than there is at the central level is therefore untenable and perverse.
[1] See In Re Nineteenth Amendment to the Constitution, SC SD 04/2015-19/2015, SC Minutes 9th April 2015: pp.13-14.
[2] Ibid: p.17.
[3] In re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill (1987) 2 SLR 312: p.322.
[4] Article 154F(2) reads: “If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question in any Court on the ground that he ought or ought not have acted on his discretion. The exercise of the Governor’s discretion shall be on the President’s directions.”
[5] In re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill (1987) 2 SLR 312: p.359.
[6] The Supreme Court has consistently read Article 35 in a way that does not exclude collateral challenges against presidential acts, provided the President is not a necessary party in such proceedings. In the case of presidential directions to the Governor, however, it would have been inconceivable as to how a collateral challenge against a presidential act designed to escape the Article 35 ouster could be framed in such a way as to also avoid impugning the Governor’s acts and decisions, which are in any event ousted from the Court’s jurisdiction by Article 154F(2). See N. Anketell, ‘The Executive Presidency and Immunity from Suit: Article 35 as Outlier’ in A. Welikala (Ed.) (2015) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (Colombo: Centre for Policy Alternatives): Ch.5.