13th Amendment and Mahinda

By Rajiva Wijesinha –

Prof. Rajiva Wijesinha MP

I had a bizarre experience recently when I had to attend what is termed Standing Committee B of Parliament, which deals with legislation. This was in connection with the Vasantha Senanayake Foundation (Incorporation) Bill which I had sponsored. The experience was rendered worse by the Minutes which I received subsequently, which bore no relation to what had actually taken place.

I presume that there is some formula for reporting the meetings of these Standing Committees, but it was certainly inappropriate in this case, given that I had raised some matters which I had asked to be recorded. The Minutes state that I moved several amendments to the original draft of the Bill I had presented. This was not the case. What happened was that we were told the legal advisers had gone through the draft and suggested amendments. I accepted these, but I asked the basis on which they had been made.

It turned out then that the representative from the Legal Draughtsman’s Department who was supposed to liaise with Parliament regarding the Bill had no idea of the reasons. After much discussion one bright lawyer from the Attorney General’s Department said that the changes were probably because the Bill as it stood seemed to be in conflict with the Constitution.

I gathered then that for years the Attorney General had advised against many charitable works by Foundations on the grounds that the Constitution, following the introduction of the 13th Amendment that introduced Provincial Councils, declares that ‘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’.

Though I grant that the interpretation adopted by the Attorney General is not totally absurd, it seems to me to confuse the words ‘No Bill in respect of any matter set out in the Provincial Council List’ with the much stronger prohibition, ‘No Bill in respect of any matter which refers even without any statutory change to any matter set out in the Provincial Council List’. This confusion makes for a very stultifying interpretation of the provision, and has certainly had a destructive effect on private legislation for charitable purposes. I cannot believe that this was the intention of the legislature when the 13th Amendment was passed. While in terms of the present Constitution Parliament should not interfere, except after due consultation, with the powers of Provincial Councils in respect of matters under their purview, the clause should not be taken to prevent social service or the promotion of sports or the conservation of the environment through private action.

I should note too that there is great inconsistency in the manner in which these limitations are imposed. ThusVasantha Senanayake’s attempt to establish and maintain libraries is not wholly squashed since he is to be allowed to ‘assist the relevant authorities in the maintenance of libraries’, but no such compromise is offered with regard to sports or the care of the destitute or pre-schools.

To me it seems obvious that what should be avoided is detracting from the powers of Provincial Councils. Given too that a new clause has been introduced (proposed by me, the Minutes claim, whereas I did nothing of the sort), which I gather is standard practice, to provide that the work of the Foundation shall be carried out without creating conflict with any work of Government or any Provincial Council, I see no way in which Provincial Councils should be worried about such legislation. But I fear that this formulaic approach will continue, while the officials who insist on it have no idea of the reasons behind it.

I have written to the Secretary General of Parliament to ask him to draw the attention of the Legal Draughtsman to this incompetence and insist that officials sent to Parliament should be briefed about the matters on which they are supposed to advise. But I also felt sorry for the poor officials, since they have got so used to Parliamentary Committees which function through formulas and have no interest in either legislative or administrative principles. And I should add that I also felt the greater regard for the only young lady who at least tried to think, and came up with a convincing answer.

Champika-300x225More seriously, I have written to the President as well as the Secretary General to suggest that the Supreme Court should be asked for a determination in this regard. It obviously makes no sense for Parliament to be unnecessarily limited in its legislative powers, and it would also make sense for the Court to lay down clearly the principle behind the clause I cited, namely that the Provincial Councils should have full authority as to legislation and regulation in the areas under their purview.

All this raises the issue of the absurdity of the manner in which the 13th Amendment was formulated, and the need for amending it to clarify matters and streamline action. Unfortunately the Parliamentary Select Committee that has been set up has not bothered to think about these matters, understandably so since our Parliament has long lost the practice of conceptualizing issues and dealing with questions that arise through discussion. At the same time there are some members of Parliament who still think it is their business to think. Though sadly the President is not in a position to make use of my services, I am sure there are other members of Parliament with at least some understanding of the issues, and with no agendas of their own. Some Ministers fall into this category, but since I did not want to seem selective in this regard, I have only suggested to the President the name of the Hon Janaka Bandara, who is on the PSC, and who will be able to understand the issues.

In retrospect it seems tragic that the PSC has been sitting for well over a year and has produced nothing. I can understand why the TNA has refused to participate, given that government failed to fulfil its promises to place either the outcomes of the 2011 negotiations with the TNA, or previous government proposals, on the table. The pledge regarding the latter was indeed a most impractical assertion of the President, to which he was propelled by the failure of those left on his negotiating team to brief him properly about the less controversial measures as to which consensus had seemed close at the negotiations. But even now I think the TNA could be persuaded back if discussions commenced on the basis of the proposals they had made in March 2011, which with a few notable exceptions the government team found acceptable.

But even while I think government should do more to draw the TNA in, and the TNA should be more accommodating, there is no reason why the PSC as it stands should not present an interim report which will suggest legislation to clarify the existing position. I can see that powers on either side should not be altered without consensus, but laying down processes for monitoring National Policy whilst ensuring freedom for Provinces to act in areas under their purview within the framework of such Policy would be useful. So too there should be clear guidelines on how the different levels can act with regard to the Concurrent List, since now the Centre is without the understanding of the ground situation that will enable it to engage in productive work in many of the areas in question, while the Province feels debarred from acting in fear of veto by the Centre.

I am sorry the President does not encourage such initiatives, since they would help him to solve the problems that now seem so enormous. Unfortunately none of those in decision making positions have been trained in problem solving, and the principle that a big problem can be dealt with easily if it is broken up into its different components, and solutions provided for those that are easy to solve. A cursory glance at the 13th Amendment would make it clear how effectively this principle can be applied. But with the interests of the public of less concern than the prestige of politicians, I suspect solutions will not be sought in sensible ways.

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