The 13th Amendment also provides for the procedure for the amendment or repeal of Chapter XVII A or the Ninth Schedule. Provincial Councils have a limited role in regard to constitutional amendments for the amendment or repeal of the provisions of the Chapter on Provincial Councils or the Ninth Schedule (that gives the three lists, the Provincial List, Reserved List and Concurrent List).
The 17th Amendment
The 17th Amendment to the Constitution Bill sought to amend Article 154R to say that the Finance Commission shall be appointed by the President on the recommendation of the Constitutional Council. Appendix I (Law and Order) to the Provincial Council List was also to be amended.
The Bill was referred to the Supreme Court as an urgent Bill. It had not been referred to the Provincial Councils. Whether the Bill should have been so referred was not raised before the Court.
The Court did not refer to the procedural requirement but stated that the two clauses were consequential amendments.
The 18th Amendment
The matter that arose before the Supreme Court in the determination regarding the validity of the 18th Amendment, was whether the repeal and amending of Articles 31(2) and of the associated Article 31(3A) (a) (i) fell within the ambit of Article 83, requiring to seek an approval of the people at a Referendum, in addition to obtaining the approval of a two-thirds of the whole number of Members of Parliament. According to the Court, neither Article 31 nor any of its paragraphs are listed under Article 83.
Unless there was such a listing under Article 83, it was suggested that there was no need to satisfy the additional requirement to seek approval of the people at a Referendum.
Seizing the absences of such a listing under Article 83, the Supreme Court unanimously held that the proposed Bill to repeal Article 31(2) and amend 31(3A) (a) (i) would fall under Article 82(5). Under that Article, the repeal contained in the 18th Amendment could be enacted only with the approval of a two-thirds of the Members of Parliament.
The 19th Amendment
The 19th Amendment has made an important change to Chapter XIII of the Constitution, which deals with Referenda. That change has been brought about by repealing the whole of paragraph (2) of Article 85.
That paragraph recognized the President’s power at his sole discretion to submit to a referendum a Bill which had been rejected by Parliament. That power has now been taken away from the President by repealing that second paragraph of Article 85.
(The writer is a Retired Professor of Law of the University of Sri Jayewardenepura. He is an Attorney-at-Law with PhD in Law as well).
Concluded
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