The topics we have been discussing under the 1978 constitution so far, we’ve been looking at basically the

institutions in
the central government. We were going on the basis that we have one level of government in the Sri Lankan context, a
unitary country.

But we also have a system that is called the devolution of power. And we see that we have devolved power in the Sri
Lankan context through the 13th amendment to the constitution. And that’s what we are going to discuss now. We have
been studying about the horizontal institutions so far, now we are going to look at the state in terms of vertical
institutions.

Vertically in the Sri Lankan state, there are three levels,

1. Central government
2. Provincial Councils
3. Local governments (urban councils, municipal councils, pradeshiya sabha)

POWER SHARING
The provincial council system, which we call in constitutional theory, is a mechanism for the devolution of power within
a unitary country. And this concept of devolution of power is part of a broader theory called Power Sharing.

Power sharing is the idea that there is a need in constitutional law, to have mechanisms for sharing power with certain
recognized politically marginalized groups so that they can also be included in the joint decision-making process of the
state. Therefore, it could be including the politically marginalized minorities, and groups within the central government
and it could also mean establishing maybe a second tier of gov and thereby sharing powers with other tiers of
government.

KEY TERMS
Federal
Unitary
Devolution
Decentralization

FEDERALISM
• Division of state functions between at least two different orders of government both enjoying
political autonomy
• The supremacy of the federal/national constitution
• A system of corporation among the levels, including a judicial adjudication of disputes between
among the entities over respective constitutional powers
- Palmero & Kossler, Comparative Federalism (2017) p. 39

These are the basic common features that the Writers see in all Federal countries. And what the writers say is that how
any author defines federalism depends on the countries he or she is looking at. Therefore there are many variations of
federalism and it also changes based on day-to-day realities. It’s basically an ever-changing thing.
Division of state functions between at least two different orders of government both enjoying political
autonomy
Imagine our executive, legislature and judicial powers are divided into two, and two orders of the government exercises
the legislative, executive, judicial powers. That would be a federal system. Both of them enjoy political autonomy
(autonomy here refers to the capacity to exercise authority without interference, without facing restrictions from other
sets of institutions, an exercising state power within your own sphere.).

When each of these divisions enjoy political autonomy, without disturbance, interference or restrictions from the other
order of the government, then that is a key struct of federal country.

Eg – Switzerland (cantons and the federal gov) – the idea is that the federal government will have their own set of
executive and judicial powers, they will exercise them autonomously on their own and then there would be state level
governments would have their own set of legislative, judicial executive powers and they’ll exercise them separately on
their own. And the federal government will not interfere.

US – between the state and the federal gov

The supremacy of the federal/national constitution

So how are these or where are these laid out? Through a constitution or in the federal constitution. Therefore it is
important for a Federal country to have a federal national constitution that is supreme. And it is the constitution that
will lay out the executive, legislature and judicial powers of the federal gov and state gov. And that ensures that despite
the sharing of powers, despite there being two orders of gov the country will function as a one whole. Because
federalism doesn’t mean that the country is divided. It just means that the country is sharing power between two
different orders of gov.

A system of corporation among the levels, including a judicial adjudication of disputes between among the
entities over respective constitutional powers
Obviously, the two systems can’t function completely separately from each other, there would be overlapped questions,
need for corporation. Therefore there has to be a mechanism for these two levels, federal level and the state level.

And ofcourse, this definition is highlighting the judicial adjudication, meaning that there has to be a SC or a
constitutional court that is mediating the disputes between two levels of government. But it could also be corporation
and the legislative, executive level. And we see that in different federal countries (eg – Canada, where there is executive
corporation between different provinces and the executive at the federal level.) therefore there has to be a system of
corporation at the basic level.

And this system of corporation also comes through this element of shared rule where in federal systems, where we see
federal legislature having two chambers. And the second chamber in the federal parliament giving representation to
state representatives. We see that in all the older federal countries such as US, Switzerland, Germany, most of these
countries have that system where there is, first chamber is elected directly and the second chamber is made up of the
elected representatives from representing the different states or the provinces as the system may have. Therefore
having mechanisms for corporation through participation in the federal legislature, or through executive and also having
a SC or a constitutional court to sort out the issues arising from the constitution..those mechanisms of corporation are
also important for a federal country.

So these main three features together formulate basic characteristics of a federal system.

The advantages of the federal structure than the unitary structure

- Administrative efficiency in a geographically larger country (US, Brazil, India etc.)

- Ensure representation different identity groups (ethnic, religious minority groups)
- The principle of subsidiarity – it’s considered best for decisions to be taken at a level closer to the people
In relation to UNITARY COUNTRIES the main feature that should be highlighted in contrast to a federal country is that,
in a unitary country there is only one order of government. There is only one order of government that might be broken
into several tiers (for the convenience of exercising the judicial, legislative & executive powers) but the central
government remains superior.

And ofcourse depending on the size of the country, depending on the needs, the arrangement of tiers within the order
of the government might change (there’s countries like the UK, China and Sri Lanka).. So there might be decentralization
and the devolution of power but the executive, legislative and Judicial powers being exercised by one order of
government is the main feature of a unitary government. And that might mean that there is not even the need for the
supremacy of a federal national constitution. And also the system of corporation among levels, its not a requirement to
the extent of a federal country (of course there is still the need for the judiciary to sort out the issues between the tiers
if they are but they are not integral requirements).

And in Unitary Countries we see Devolution and Decentralization

DEVOLUTION
- Transfer to a subordinate elected body
- Some legislative and executive powers
- While retaining the authority to regain these powers

Selvakkumaran, ‘The Devolution of Power: A Conceptual Perspective’ (1998) 187

Above Selvakkumaran explains that, within a unitary country when the central government transfers to a subordinate
elected body, some legislative & executive powers while retaining authority to regain these powers. Therefore there are
2 actors involved here, the central government (the whole act is done by the central government because its only order
of government). SO what they are doing then is to transfer to subordinate elected body (like the provincial council, like
in the UK context the UK the welsh or the northern Ireland parliament) some legislative, executive powers while
retaining authority to regain these powers. So the most significant point here is that the central government at any point
that they want can take back the powers they have given to the subordinate elected bodies (eg - In Uk the devolution of
powers is done by acts of parliament. The Scotland act, northern Ireland act, wales act. So the idea is that the
Westminster parliament can repeal those acts at any time).

So therefore the key requirement in devolution is that while there are certain significant legislative and executive
powers(can be significant like in the UK), however, the legal capacity to take back the powers is the significant feature of
devolution. But that wasn’t there in federal countries because it creates to orders of government and each are given
powers by the constitution itself. There is no way that the federal parliament can go and in one way or another regain its
powers. Whereas in a devolution that superiority-subordinate nature is established from the start.

DECENTRALIZATION
‘Decentralisation would, in the narrow sense, mean the dispersal of central government powers of decision-making to
various areal centres. It may relate mainly to the executive functions at the areal level. However, it may also include
legislative functions of a negligible nature.’

(Selvakkumaran, p. 193)

So therefore as we saw in devolution, there is sharing of legislative and executive powers and I said it could be very
significant legislative and executive powers also. But here, in decentralization, the central government is only sharing,
mainly executive functions and maybe a little bit of legislative function. Therefore the level of power shared is lower in
decentralization when compared to devolution. So it’s a matter of degree and it depends on the context really to say
that, and ofcourse what the provisions might say to decide whether this is devolution or decentralization.
Therefore in terms of the extent to which the power is shared, we can say that the federal systems have the broadest
power sharing arrangements (if we sort of think of it in the sense of a pyramid). So executive, legislative, judicial,
financial, powers of security.. so most of these are shared in federal systems. And if we divide federal systems into two
levels confederal systems would come at the lowest level, because they share the highest amount of powers. And
federal systems comparatively might not but altogether federal systems share the highest amount of powers between
two levels.

Then we have, from devolution onwards sharing of power within a unitary country (Unitary country in its purest sense
would be a country with just a central administration and then exercising powers at one level of government). Therefore
even decentralization and devolution happens within a unitary country or within one level of government but there is a
degree of sharing of power within the unitary structure.

In a unitary country that has devolution there sharing legislative and executive powers, in the case of a decentralized
unitary country there is sharing of executive powers mainly and then plus a little bit of legislative powers and then there
is something also called deconcentration (we don’t discuss it) where only administrative powers are shared so that
would be even lesser amount powers when compared to decentralization. (these are all levels of power sharing within
the unitary system).

Therefore in terms of power sharing, federal systems have the broadest levels of power sharing where as in the unitary
systems, the sharing of power shrinks bit by bit as we go through the unitary systems.

And that said, the pyramid is drawn specifically to point out that this is a matter of degree. Because if we think of it as,
okay there are unitary or federal countries that might not be the full picture. Because as we saw in the case of India
there might be countries that are standing in this line between federal and unitary ( like in india which has
characteristics of a unitary country but also a federal country. Therefore at the beginning they also didn’t go to label
themselves as unitary or federal, it was later only through judicial pronouncements they labeled themselves to be a
federal country). There are therefore countries, specially the countries that are experimenting with power sharing in
more recent context, the countries which have not given them labels and thereby sort of stand in the gray area between
unitary and federal. Therefore, it’s not two baskets, in practice the situation might not be so clear also.
WHAT IS THE HISTORIC CONTEXT OF POWER-SHARING IN SRI LANKA?

So the demand for power sharing, the demand for federalism started in the pre independence period. The first set of
people who demanded for federalism on the basis that they are a different group on the basis of their historical
practices, law, culture, language distinctions and all that was Kandyan community and they demanded this before the
Donoughmore committee. And the donoughmore committee did not agree with that. But it’s interesting to know that
the kandyans demanded power sharing, demanded a federal form of arrangement for Sri Lanka based on their territorial
identity, language, law, history are basically the same claims based on which later you will see the tamil communities
demanding power sharing, federalism in the post independence period.

So therefore the Kandyan made the claim historically and then we also see in the period that leads up to the
independence in 1948 the leftist parties also making claims towards federalism suggesting that a federal solution is
better suited for Sri Lanka. Then this same point was made when the Soulbury Constitution was made and by that time it
was the Tamil parties (All Ceylon Tamil congress led by G G Ponnambalam)who were making this demand. There were
asking for power sharing and not necessarily using the word federalism. They were asking for weighted representation in
the sense that there would be guaranteed tamil representation in the central government. Initially they were asking
50/50 tamil representation but later they went towards weighted representation based on geography, so then it was
upto around 33% representation but the demand was for representation in the central parliament so they could engage
in governance with the guaranteed amount of representation. But the Soulbury constitution did not provide recognition
for this demand, Instead they enacted art. 29 which was an earlier formulation of a FR, not exactly a bill but recognizing
that there cant be any law that will discriminate or privilege communities based on their religious ethnic identities. And
the question of electoral systems and electoral representation the Soulbury Constitution left that question to be decided
on a later date.

But in the post-independence period going up to 1956, this was the D.S Senanayake Government, we see during this
period the initial laws discriminating tamil communities coming into place. These citizenship and electoral laws relate to
the laws that were enacted during this period, with the ulterior goal of disfranchising the Indian tamil communities who
were based in the Hill Country provinces and while the citizenship acts did not expressly say that the purpose of this act
was to disfranchise certain communities of more recent origin the effect of the act was that. And then based on the
citizenship act there were also electoral acts stating that citizens who were only qualified under the citizenship acts can
vote in the general elections. Therefore, as a result, the Indian communities got disfranchised and also lost their
citizenship of this country and as a result couldn’t vote. And that was a political maneuver because at that time their
consolidated vote was changing the electoral outcomes of those areas. And this was challenged before the SC and also
the privy council in the cases of Kodakampille V Mudannayake & Mudannayake V Sivanasundaram. But the courts in this
instance said that they are only going to look at the letter of the law/legislation and it wasn’t discriminating anyone on
the face of it. So they said that it was within the capacity of the parliament of the country to decide who the citizens are.
Therefore the courts will not go into the actual impact of the citizenship laws.
So that was the starting point of these discriminatory laws and then in 1956 with the election of the new government at
the time. We see the Bandaranayake government passing the Sinhala only act. Which then led to a lot of backlash,
protests from the tamil communities. Because this meant that they would be disadvantaged in their education and also
in their employment and the progress in terms of getting promotions in their employment. Kodeeswaran V AG
challenged the Sinhala only act.

So in 1956 the Sinhala only act or the official languages act as its legal name is, came about. And because of the backlash
that came against this Sinhala only act, almost immediately after the PM Bandaranayake also promised to share power
through regional councils. And that came through this pact called the Bandaranayke Chelvanayagam pact
(Chelvanayagam was from the federal party, which was a comparatively a more radical party compared to the All-Ceylon
Tamil congress which was the initial party that was there during the time leading to the independence). Therefore, this
pact however did not go so far as to turning the country into a federal country, the regional councils were merely a
decentralization mechanism and the view of PM Bandaranayake he viewed it almost as a local authority mechanism
(creating a third tier of governance which wasn’t allowing so much autonomy, but the tamil communities hopefully saw
it as a devolution of power mechanism which could then from their onwards develop). So therefore that was the
Bandaranayake Chelvanayagam pact trying to introduce regional councils and also trying to introduce solutions for
certain other problems that the tamils were facing at the time. And that would include obviously, the space to use the
tamil language and also issues relating to citizenship and disfranchisement of the Indian tamil community. So it dealt
with several issues. But this pact met with a lot of backlash from the Sinhala Buddhist Nationalists groups of the country
and ultimately it didn’t materialize. Therefore, that didn’t work out.

And of course the United National Party which was the opposition at the time was also vehemently against it. But then
in 1965 when the united national party came into power with Dudley Senanayake they made some what a similar pact
called the Dudley Senanayake Chelvanayagam pact, the DC pact for power sharing and it was on the basis of that pact
the tamil community supported the UNP to form the government. This pact agreed on power sharing through district
councils which was once again a decentralization mechanism, so sharing a level of executive and administrative powers
also generally considered to be weaker than the regional councils. And that however didn’t work out either, there was
so much political backlash from the center and that didn’t come through.

And then we come to 1972 when the first autochthonous constitution of SL came about. And it is during the drafting
process of the 1972 constitution, the tamil parties initially participated in the process. And also federal party, proposed a
draft constitution, which would introduce federalism into sri lankan context. But then they realized that majority of the
politicians are not willing to engage with their proposals meaningfully. So then, we see the tamil parties walking out of
the constitution drafting process in the middle. And we all know the ultimate result of the 1972 constitution was, it
constitutionally entrenched Sinhala as the only official language, gave foremost place to Buddhism and then also
labelled the country to be a unitary state in the constitution. Therefore sort of the 3 key demands or matters that were
called for by the Sinhala Buddhist Nationalists were therefore constitutionally recognized.

And if we refer to the unitary label, in the soulbury constitution we see no such labels. Obviously, the structure was a
unitary structure but the constitution didn’t label the state to be either unitary or federal. But it is with the 1972
constitution we see the unitary nature being constitutionally expressed in the sri lankan constitution. And then ofcourse
Buddhism being given the foremost place and also the Sinhala only act which was a statutory policy upto that point
being politically entrenched.

Then the period following the 1972 constitution period we don’t see any attempts at power sharing, but as mentioned
and highlighted 1983, that is significant because that was the year in which the black July of 1983 happened. Which was
a set of pogroms against the tamil communities and the violence, there has been several riots against ethnic minorities
leading upto 1983 but 1983 is considered to be the water shed in the sense that, the violence was to such an extent
from thereafter we see India getting actively involved in Sri Lanka’s ethnic issue and calling for power sharing and trying
to facilitate power sharing in the Sri Lankan context. Ofcourse the central government in the aftermath of 1983 does not
show that much interest in engaging in power sharing still. What we see is the introduction for example to the 1978
constitution the 6th amendment whereby there was a need which was requiring all parliamentarians to take up an oath
saying that they will not advocate for a separate country. And the tamil politicians at the time did not agree to take up
that oath so as a result they lost political representation in the parliament. Therefore, that paved way towards
militarization, the militarization was already happening because there was no political solution and with the
parliamentarians from the community losing their seats, that effectively closed the door towards engaging in a political
solution. Therefore, that ofcourse consolidated the need for a military solution.

However, with the Indian intervention, we see a set of discussions happening in India and also in Nepal and that is what
Thimpu talks refer to. And it was on the basis of the principles that were coming up in Thimpu talks that we see the indo-
lanka accord being drafted and facilitated by India, the Sri Lankan government agreeing to provide for a power-sharing
mechanism and then the result of that was the 13th amendment and the provincial council’s bill.

Therefore that is the history of how the demands for power sharing evolved in the Sri Lankan context in the post-
independence period and also the parts of history that led to the 13th amendment being drafted and later being
enacted.

In re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill [1987] 2 SriLR
312.
Which was the determination through with the SC of SL was assessing whether this bill and the provincial bill can be
passed with just a 2/3rd majority or whether there is a need for a referendum. Hence, that was the determination and
therefore this was the starting point evaluation of the 13th amendment mechanism/the provincial council mechanism in
Sri Lanka. And this judgement is extremely important because it is also shaping the way in which the courts from
thereafter view the 13th amendment and the provincial council mechanism.

(read the judgement)

FACTS
The government is trying to introduce the 13th amendment to the constitution and the provincial council’s bill.

PROCEDURAL POSTURE

And because it’s a challenge to these bills the procedural posture is that it’s a case that the Supreme Court has the sole
jurisdiction here and this is a special determination that comes from the SC.

JUDGEMENT

There are 9 Judges in the bench and initially 4 Judges said that this amendment and the bills can be passed
with just a 2/3rd majority, there’s no need for a referendum. And then 4 Judges dissented and said that there is a
need for a referendum and then there was one judge, Justice Parindra Ranasinghe saying that, he would agree with the
majority and support the majority to say that this bill can be passed with only a 2/3rds majority, if there are 2
amendments introduced to art. 154 g) 2) & 3) of the 13th amendment. And the government followed that. And therefore
that’s how the 5 Judges of the majority thereby held that this bills can be passed with just a 2/3rd majority. And that was
important because had we have gone for a referendum, there was a high chance that, this would not have come
through. And that also had implications in the sense that there is a sense among the communities that this was
Judgement that was imposed upon them without seeking their approval, that was basically against their will.

ISSUES

Focusing on the main 3 issues that have come up,

The first issue that the Judges deal with is,

DOES THE AMENDMENT VIOLATE ARTICLE 2?
Article 2 talks about the unitary nature of the constitution. And if we look at art. 83 of the constitution we will see that
its an entrenched article.

Then if art. 2 is considered to be affected, violated, undermined by the 13th amendment. Then, there would have been a
need for a referendum. If not, there was no need for a referendum. That was one of the most important and first issues
the Judges deal with.

And then, first we are looking at JUSTICE SHARVANANDA’S REASONING, (The Judgement of the majority – Justice
Sharvananda, Colin-thome, atukorale & Tambiah (the judges that are writing the majority opinion))

The majority opinion here is saying that art. 2, the unitary nature of the state is not violated by the 13th amendment to
the constitution and the provincial council’s bills. And how does Justice Sharvananda and other reason this out, they
look at firstly, the definitions of federal and unitary. And their definitions of federal and unitary comes mainly from Dr.
Wheare, who remains to be one of the classical writers on federal theory. So basically constitutional theories relating to
power sharing and focusing on federalism. So therefore, as I said is one of the classical writers, so therefore he has a
very specific interpretation of what federal means. And its closely related how people will find US federalism. And it is
closely related to how people will define US federalism.

Let me explain how the Judges relying on Dr. Wheare define what is meant by Federal. Justice Sharvananda then says
that federal refers to an association of semi-autonomous units with a distribution of sovereign power. And there the
idea is that the field of government is divided between the federal and state government, so therefore both the federal
government and the state government are not subordinate to each other. So they are equal. They are coordinated and
independent bodies in the sphere allocated to them. (This definition of federalism focuses on the aspect of there being 2
orders of government and goes on to say what this looks like) (think of like this 2 train tracks). Therefore that’s what this
idea of association of semi autonomous units with a distribution or sharing of power looks like. (very US kind of
definition of federalism when compared to more recent types of federalism).

And then they say that, unitary is in contradiction to this idea of federalism. So therefore, unitary in essence has two
characteristics for them. First is that, sovereignty remains undivided and obviously with the central government. So
therefore the powers of the central government is unrestricted. And then how this manifests in the government is that,
the central parliament remains supreme (in the judgement you will see that Justice Sharvananda keeps referring to the
supremacy of the parliament and here it doesn’t mean the sovereignty we discussed in the UK sense, it’s just saying that
the central government is superior as compared to say the provincial council or any other secondary unit there is.)
Therefore the supremacy of the central parliament and absence of subsidiary sovereign bodies are the ways in which the
unitary nature manifests in the governance structure. Unitary therefore in essence means, firstly that sovereignty is
undivided and secondly that the powers of the central government are unrestricted.

How we can see that the sovereignty is undivided and the powers of the central government are unrestricted, through
the supremacy of the central parliament and through the absence of subsidiary sovereign bodies. So there can be
subsidiary bodies but as long as they are not exercising sovereign power in the ultimate authority in relation to any
subject then the country still remains unitary. So that is how they define what is unitary and what is federal.

So what they do is it first define for themselves what federal and unitary mean. And then, they assess the provisions of
the 13th amendment and the provincial councils’ bills based on their definition of federal and unitary. And seeing
whether the 13th amendment creates a federal structure or a unitary structure. So therefore in assessing the provisions
of the 13th amendment, you will see Justice Sharvananda and others going through the legislative, executive and judicial
powers that are given to the provincial councils. We still haven’t gone through what the provincial council mechanism
looks like but we know that it’s a devolution of power mechanism therefore there is a sharing of legislative power,
executive power mainly and also here because there was a provision made for the introduction of a provincial high
court, there’s also reference to the judicial powers at the provincial level. Therefore those 3 broad themes in the 13th
amendment and the provincial council bill is assessed to see whether this is creating a federal structure or a unitary
structure.

So firstly looking at the legislative powers/scope of the provincial council the majority, states that the provincial council’s
statutes are not exclusive in the sense that the provincial councils don’t have any legislative capacity that is only given to
them. They say that the central parliament can override the provincial council statute or can make parliamentary
legislation in the sphere that the provincial councils make statutes on, through art. 154 g) 2) & 3) of the constitution.
What Art. 154 g) 2) & 3) does is to say that, if the central parliament is now going to amend either the 13 th amendment
and the 9th schedule to the constitution which came with the 13th amendment or if the central parliament is going to
make legislation or a matter that is not devolved to the provincial councils, in the sense that it is allocated to the
provincial councils, then the central parliament before legislating on those matters, the president has a duty at the
beginning of the legislative process to ask for the views of all the provincial councils. And if one or more provincial
councils don’t agree with that legislation or the constitutional amendment then it has to be passed with a 2/3rds
majority. Therefore, the issue was whether that was creating an exclusive capacity for the provincial councils. But J.
Sharva and the others say that, that doesn’t affect the supremacy of the parliament because even if now they have to
follow a harder procedure, that is related to only the manner and form of exercising the legislative power by the
parliament, it doesn’t exclude the central parliament from legislating on those fears. So, therefore, J. Sharva and others
say that, procedures that relate to the manner and form in which the parliaments’ powers are exercised, those
procedural restraints do not affect the supremacy of the parliament in terms of making legislation. And in order to state
that they cite Bribery Commissioner V Ranasinghe, they cite also 2 cases from the commonwealth, AG for new south
wales V trethowan & Harris V Minister of the interior, all of which support this precedent saying that, laying down
procedural restrain on the parliament does not affect the supremacy of the parliament, because the moment the
parliament fulfils its procedural requirements then they can legislate on those matters as well. And that’s not an
exclusion of the parliament from legislating on certain matters. So, therefore, their argument is that the parliament
remain superior when compared to the provincial councils in relation to legislative powers.

Basically what’s happening in the provincial level is that, A chief minister and a board of ministers who are elected, who
are members of the provincial council, so therefore they are elected members of the province. However, its not them
who are mainly exercising the executive power at the provincial council level, it’s the governor who is appointed by the
President, who is exercising the executive powers. Therefore in terms of the executive, we have the President, exercising
executive powers according to art. 4 b) of the constitution. He or she has the capacity to exercise executive powers at
the center. And then there is at the provincial level a governor who is appointed by the president and who is also
remaining in office subject to the pleasure of the President who is to exercise executive powers. But then because he is
an appointee the Governor is required to in most instances to act on the recommendation of the Chief Minister and the
Board Ministers who are the elected members of the provincial level. Basically, 3 set of executives – a tripartite
executive,

1. President elected for the centre

2. Chief Minister and the Board of ministers elected for the provincial level
3. And a Governor who is sandwiched in between these two

But according to the 13th amendment, the Governor is to act on the advice of the Chief Minister and the Board of
Ministers but also the Governor can act on the advice of the President whenever the constitution required the Governor
to act on his own discretion. So therefore the argument of the Judges here is that, because the Governor is appointed by
the President, And is holding office on the pleasure of the President under art. 154 b), therefore Governor is a delegate
of the President who is following the directions of the President, who is monitored by the President, So therefore
because the Governor’s discretion is to be exercised on the direction of the President. And because of this position of
the Governor which is very much controlled by the President, and also because there’s provisions in the 13th
amendment for the President to take over the administration of the Province in the case of an emergency according to
art. 154 k) & l) of the 13th amendment. Based on these two arguments the Justices say that, also in relation to executive
powers the center remains supreme, meaning that the President holds significant powers over the provincial executive
through the office of the governor and also based on the constitutional provisions that are allowing the President to
take over the administration of a province in the event of an emergency or in relation to certain instances. Therefore
based on those two grounds executive at the center remains supreme.

And thirdly, in relation to Judicial powers J. Sharva and others note that supreme court and coa remains supreme, it’s
just that the writ jurisdiction and certain other jurisdictions are devolved and shared with the provincial high court,
these judges argue that this bring justice nearer to home, it reduces delays and also costs of litigation. So therefore the
purpose is justified, but because the SC and COA remain supreme and appointment of the judges to the provincial high
court is done by the President on the nomination of the Chief Justice, therefore overall the centre remains again
supreme even in relation to judicial powers.

Therefore based on these set of arguments J. Sharva and others come to the conclusion that in relation to legislative,
executive and judicial powers,the center remains supreme and the provincial council level does not exercise sovereign
powers in relation to any of these areas, so therefore, it is on that basis we see J. Sharva and others arguing that art. 2 is
not affected by the 13th amendment because none of these areas do provincial council or the provincial level exercise
sovereign powers and because the central authorities remain supreme.

JUSTICE WANASUNDARA’S REASONING

He writes the main descend in this instance.

So justice Wanasundara’s argument relating to art. 2 and saying that art. 2 is violated in this instance, he goes into the
history of power sharing in Sri Lanka, he says that and also interestingly leaves out certain parts of history. Therefore in
the Sri Lankan context, whenever we are reading history we have to ask what is expressed but also what is left out.

For instance, J. Wanasundara refers to the Trincomalee resolution of 1957 calling for a traditional homeland and says
that there have been political claims and demands leading to political agitation and now which has evolved into an
armed cessationist movement asking for a federal state and now also a separate state.

If we go back to the line of history with the enactment of the 1972 constitution and the entrenchment of Sinhala as the
only official language, unitary and all that we see also it’s from 1976 we see this demand for a separate state being
developed from the tamil communities. One example being the wadukkudai resolution where all the tamil communities
agreed for an armed struggle asking for a separate state. Therefore it developed at a very later stage when the political
solutions were not coming through. But by this period which is 1987 we’ve come to the point of political claims to
demands to agitations to arms censsationist movement. So therefore J. Wanasundara notes that the government has
made every reasonable effort to solve this issue which is a blanket statement which needs questioning. And then he
goes onto the fact that this 13th amendment is based on the draft framework of the indo-lanka accord and he sort of
goes through the talks between the sri lankan government and theIndian delegation, that happened in Bangalore
between the president of Sri Lanka and PM Rajiv Ghandi of India. And then finally how the accord was signed. So, and
because this was based on the accord and also because the 13th amendment and the provincial councils bills makes
provisions for connecting adjoining provinces, J. Wanasundara says that based on the history of Sri Lanka’s power
sharing demands and the cessationist movement, and also the indo lank accord, the aim of the 13th amendment is to
ammulgamate the north and east provinces after the enactment of the 13th amendment and for autonomy to be
provided for those two provinces to the exclusion of sinhalaese and muslim communities and that violates the rights,
the unitary nature and territorial integrity of sri Lanka.

Therefore he frames the history of power sharing in sri lanka in a very particular way. And he doesn’t go into for
example the issue of the Bandaranyake Chelvanayagam pact, the Dudley Senanayake Chelvanayagam pact and also the
riots resulting in violets and specially the 1987 riots. So none of those and also the Sinhala only act those discriminatory
impact and the disfranchisement of the Indian communities. Therefore there’s quite a bit of history missing. He frames
the history in a particular way and says that this is an attempt to affect the unitary nature of the country and the
territorial integrity of sri lanka based on the history.

He also goes into defining unitary and federal. And he looks not at text but also practice. So his main writer that he
refers in terms of looking into what federal and unitary means is to look at write Seervai an Indian writer. And India is a
comparatively later federal country and also it wasn’t federal in the first instance. So therefore, this book refers to the
fact that text alone doesn’t decide whether a country is federal or unitary. What is says is that you have to also look at
the practice. Cause what happened in initially in India was that, India initially said that they were a union, the text of the
constitution refers to India as a union. Doesn’t refer to federal or unitary but it was later that through that
developments in the supreme court that India was recognized as a federal country. Hence why, a text book from India
says that you have to look at both the texts and the practice. And also recognizes the fact that in the current context,
with independence the country become decolonized there are new countries experimenting with federalism and power
sharing more broadly so therefore justice Wanasundera notes referring to Seervai that there can be countries which are
unitary in nature but has federal elements. Or federal countries which has a strong unitary bias. Therefore J. Wana says
that Dr. Wheares traditional explanation of what is federal and unitary doesn’t stand anymore because nowadays
federal countries cannot only be defined based on the systems of distinct and coordinate governments but there can
also other different types of countries which are more federal than unitary but calls themselves unitary in practice. So
therefore, defines federal and unitary in a different sense looking at the newer countries and also says you have to look
at texts and practice and that Dr. Wheares definition needs to evolve.

Therefore then based on the text of the 13th amendment J. Wanasundera goes on to say that, it’s a blue print that is
ideal for a federal state. So he says that, there is a high chance that in practice the Sri Lankan state would under the 13 th
amendment would evolve towards a federal country, based on the provisions of the 13th amendment which was in a
way very much like the Indian context because of India’s intervention, and also there were a lot of similarities with
India’s constitutional power sharing structure and what was designed for sri lanka under the 13th amendment.

So based on that, he goes on to refer to the implications for the future. He says that in the future there might be
amalgamation of north and eastern provinces and he predicts that there might be conflicts for water, hydro power, and
basically based on the resources and that would be used as a pretext for unilateral declaration go independence.
Therefore he sees this mechanism as a first step towards eroding the unitary nature of the country and for creating a
federal country.

Therefore he looks at history, he tries to define federal and unitary based on the text and the practice and then he
makes certain forecasts as to implications for the future and say that art. 2 is violated in this instance by the 13th
amendment.

Next argument that the judges deal with,

DOES THE AMENDMENT VIOLATE SOVEREIGNTY OF PEOPLE?
Basically, whether this amendment violates art. 3 & 4 of the constitution?

And obviously this affects art. 4 of the constitution to an extent. The question however was because, if you look at the
art. 83 of the constitution that entrenches only art. 83 of the constitution. Therefore the question is whether the effect
on art. 4 in itself, whether we take art. 4 as always impliedly entrenched, thereby needing a referendum because art. 4 is
affected or do we consider art. 4 to be deliberately left out of art. 83 entrenchment, so therefore to consider that only in
the effect that art. 3 is undermined/violated so thereby needing a referendum.

JUSTICE SHARVANANDA’S REASONING

J. Sharva looks at the article, to ask the question of whether the sovereignty of people is affected in this instance,
whether art. 3 is violated and whether to consider that a violation or an effect on art. 4 in itself is a violation of art. 3 so
thereby requiring a referendum.

J. Sharva and others firstly look at the constituition drafting process and they say that art. 4 is not entrenched because
initially according to the constitution drafting process of the 1978 constitution art. 3 & 4 were both initially
recommended to be entrenched but then, in the final draft art. 4 was taken out and certain other articles were included.
Therefore J. Sharva and others interpret that means that art. 4 was deliberately left out because art. 4 has overarching
implications (any change to any matter in the constitution might affect art. 4 of the constitution).

Therefore J. Sharva and others say that, we don’t consider art. 4 to be impliedly entrenched, there will only be a need
for a referendum where a change to art. 4 also has the effect of undermining art. 3 of the constitution which entrenched
expressly. Therefore. J. Sharva and others see art. 3 as the sovereignty of people and art. 4 as only laying out the
agencies or the instruments through which art. 3 sovereignty is to be exercised. Therefore their argument is that as long
as there is an effect on art. 4 the instruments or agencies through which people art. 3 sovereignty of people is to be
exercised. So therefore, their argument is that, as long as there is an effect on art. 4 the instruments or agencies through
which people’s sovereignty is exercised, as long as there are changes which improve the sovereignty of people then art.
3 is not affected. So say art. 4 is affected but it is an improvement to the way in which people’s sovereignty is exercised.
Then, its not a violation of art. 3 because improving art. 3 is not a problem, that’s upholding art. 3. Therefore impacting
on art. 4 in a way that it improves the sovereignty of people is not a violation of art.3 which will then require a
referendum. It’s only when people’s sovereignty is undermined that there is a need for a referendum. if it is to improve
people’s sovereignty through an impact to art. 4 that is fine. And that’s exactly why art. 4 is not entrenched because the
idea that the constitutional amendments can improve the instruments, or improve the ways in which people’s
sovereignty is to be exercised.

And in order to argue that the 13th amendment is trying to improve the people’s sovereignty, J. Sharva and others refer
to directive principles of state policy. And they say in that in the directive principles of state policy there’s a difference in
art. 27 4) reference to strengthening the democratic structure of the country through enhancing the participation of
people and decentralizing government. So therefore the argument of the Judges is that this is decentralizing
governance, through enhancing the participation of the people which is strengthening the democratic structure, so,
therefore, this is promoting directive principles of state policy, this is improving people’s sovereignty, so this is not
violating art. 3.
And this argument that J. Sharva and others brought out has been used in later cases also to say that art. 4 and the
instrumentality referred to in art. 4 can be improved. So to improve the ways in which people exercise sovereignty, what
requires approval of the people at a referendum is only when there is an undermining of art. 3 or undermining the
institutions in art. 4. As long as it is to improve the constitutional structure there is no need to seek the approval of the
people at a referendum.

And in this instance of course it was shown to be an improvement on the basis of directive principles of state policy.

However, ofcoruse J. Wanasundera does not agree with this point. His argument refers to this Indian constitutional
concept which is called the basic structure doctrine which comes from a famous case called the keshavananda Bharati
case.

JUSTICE WANASUNDARA’S REASONING

Basic Structure Doctrine and judicial discretion to decide on additional entrenched provisions
Ofcourse Indian constitution is a different structure from ours. Where there was no definition to what the amending of
the constitution meant. The Indian judiciary stated that there are certain basic features of the constitution/ there is a
basic structure to the constitution which the parliament cannot alter. And the judiciary will strike down any legislation,
any constitutional amendment which is going to undermine/violate the basic structure of the constitution. Therefore, in
the Indian context (because india doesn’t have a referendum procedure entrenched and it didn’t also have an
interpretation to what amount to an amendment) Indian judiciary could develop this doctrine called the basic structure
doctrine saying that it is upto the judiciary to decide, what are the basic features of the constitution and what are not.
And if a basic feature is violated by a parliamentary act/amendment that will be struck down by the Indian judiciary.

And J. Wanasundara in the sri lankan context was trying to make the same argument saying that, in sri lanka also there is
a basic structure doctrine, so therefore in addition to what is laid down in art. 83 of the constitution, the judges have the
capacity to decide that certain provisions are also entrenched. Therefore he goes onto say that art. 4 is also a basic
provision of the constitution. He says that, the parliamentary structure, office of the president, and also he goes on to
the extent of saying that the cabinet of ministers, that structure of the executive, the superior courts, those are all basic
features of our constitution so those are entrenched. So therefore art. 4 is definitely entrenched so it’s a violation of
people’s sovereignty to impact on these institutions and their scope of functions.

So therefore, j. Wanasundara argues that art. 4 is entrenched on the basis of the Indian concept of the basic structure
doctrine and thereby saying that the judiciary has the capacity to decide that additional provisions are entrenched
addition to what is mentioned in art. 83.

And if you look at the majority opinion, you will see that the counter argument to that coming from J. Sharva and others,
saying that, simply that Sri Lanka’s context is different from Sri Lanka. Sri lanka already has an entrenched provision
clause so therefore that is a clear indication that the constitution itself recognizes what are the basic features of the
constitution which can be amended only with the approval of the people. But in addition to that, in relation to on the
provisions on amendment our constitution recognizes that amendment can also mean the replacement of the entirety
of the constitution, provided that there is a new constitution to replace that. Therefore our constitution recognizes that
we can amend, and repeal the entirety of the constitution but subject to of course art. 83 limitations.

Therefore, J. Sharva and others say that this basic structure doctrine is not relevant to sri lanka.

Therefore, this is refuted in the majority opinion but this is J. Wanasunderas reasoning to say that art. 4 is impliedly
entrenched and thereby there is a need for a referendum.
DOES THE AMENDMENT VIOLATE ARTICLE 9?
JUSTICE SHARAVANANA’S REASONING
The majority opinion, they see that, there is no affect on art. 9 through the 13th amendment, why because the capacity
of the republic to perform the obligations, to give the foremost place to Buddhism remain unimpaired and according to
them there’s no grounds to reasonably worry that there will be problems undermining the centers obligations to foster
the Buddha Sasana.

And why specifically the majority opinion says so? They note that the subject of ancient and historical monuments other
than those declared by or under the law designated by the parliament to be of national importance are under the
provincial council list.

So the argument coming from the majority opinion judges are that for 2 reasons,

Firstly in the reserves list, there is the capacity given to the parliament in relation to national archives, archeological
activities, cites and antiquities declared by or under any law made by the parliament to be of national importance. So
those are in the reserve list, therefore the parliament can always take the matters that are in the provincial council list
and thereby claim to be them to of national importance. Thereby taking them within the preview of the center.

Secondly, the fact that all the subjects and the functions which are not specified in the provincial council list or
concurrent list also come within the reserve list. So that would be the final item of the reserve list recognizing that all
the residuary powers fall within the center.

Because of those two guarantees given the majority opinion recognizes that there is no problem for the center to
perform its obligations under art. 9. So there’s no issue basically undermining art. 9 therefore.

JUSTICE WANASUNDARA’S REASONING

His argument goes into firstly highlighting the drafting history of the recognition given, he notes that under the 1972
constitution the similar provision was only focusing on Buddhism. But in 1978 there’s focus on the Buddha Sasana which
would include ancient, historic, sacred objects and places which have been from the ancient times associated with
religious practices and worship of Sinhala Buddhist.

And then he goes into the context, referring to this particular report of the Presidential commission chaired by the
retired CJ Sansoni that there had damages to temples during disturbances and damages to bo trees in Trincomalee and
kiliwedi. So therefore he is of the view that there is a campaign by the anti Sinhala elements to affect, undermine, all
traces of ancient buddhist worship. Therefore he refers to the context and goes into looking at the 13th amendment.
According to him even though the parliament has capacity to state that certain monuments, historical cites are of
national importance he says that nothing has been declared to be so, so far. So therefore he says, that is not a guarantee
enough and specially in a context that there is overlapping between the three lists. So he says that, there is reference to
this archaeological cites, ancient monuments in the provincial council list, there is reference to it in the reserve list and
there’s also reference to that in the concurrent list. So he says that, it’s therefore subject to interpretation and he calls
this a lawyers’ paradise because there is a lot of leeway to argue this way and that way. And he says that makes the
protection given to these ancient and historical cites etc very precarious. Therefore he says, that this is not a guarantee
enough to ensure that art. 9 could be protected.

And if we look at J. Seneviratne’s dissent you will also once again see that he is also of the view that, what is meant by
the lists, the terminology here as being unclear. So he is also, agrees with Justice Wanasundara by pointing out that,
these references to ancient monuments etc. it’s not sufficiently defined so, therefore, there is not a guarantee enough
to say that, those in itself will protect art. 9. Therefore because of those reasonings dissenters are of the view that art. 9
would be violated in this instance.

But of course, the majority opinion stood.

The thirteenth amendment determination is important for us as I said because, it’s the first determination that was
dealing with the provisions of the 13th amendment and the provincial councils bills. Basically dealing with the judicial
approach, setting out the first precedent towards how the Judiciary should approach the 13th amendment and
interpreting the 13th amendment provisions.

So what we see broadly if we look at the 13th amendment is that the majority opinion trying very hard to ensure that the
devolution mechanism will be recognized within a constitution which has a very centralized structure (the 1978
constitution is a very centralized constitution in the sense that, it centralized a lot of power with the executive
president). So in such a centralised constitution, the majority opinion is struggling to justify that, without changing any
basic key provisions, without going for a referendum that this can also accommodate a devolution mechanism. But then,
there is also a very strong set of dissents coming from the dissenting Judges, raising a lot of concerns and setting out a
lot of warnings about what the 13th amendment mechanism can evolve into. So, therefore, it’s based on that kind of
reasoning that we look at how the provincial councils worked out. And of course if you look at it from a political
perspective there was basically no political view to devolve power with the provinces and in a devolution mechanism
within a unitary country, the political will and the political facilitation is quite critical. So therefore that is obviously one
reason of the reasons why provincial councils wasn’t working out. And second the reason would be that, if it is going to
be a devolution of power mechanism, there has to an administrative restructuring. Meaning that, if you’re going to have
a second tier of governance that means that the center has to shrink (institutional structurs, human resources,
personnel has to shrink) because there would be a second level also now dealing with certain matters. But this kind of
administrative restructuring did not happen. So what happened was that, the center basically continues pretty much as
it was before the devolution mechanism and also in addition to that we have a devolution mechanism to that.

That’s why there are discussions about how we have a bloated public sector. There are too many officials and also
because now there are 2 levels dealing with similar matters there is a lot of duplication of work and confusion as to who
does what and that leads to a lot of inefficiencies. Therefore, all these administrative issues also came up because there
was no political engage in power sharing, the administrative restructuring for power sharing did not happen. So
therefore, those political, administrative, institutional issues are also all working against the provincial council system.