21) LEGISLATIVE POWER OF THE PROVINCIAL COUNCILS

If you look at the 13th amendment which starts with art. 154 a), you will see there’s reference to the establishment of
the provincial councils. And then if you look at art. 154 b) onwards as is usually for our constitutional pattern, we are
starting with the executive but in terms of this lesson we will start with the legislature, the legislative powers of the
provincial councils.

WHAT ARE THE RELEVANT CONSTITUTIONAL PROVISIONS?

ARTICLE 154G (1) & SCHEDULE NINE
The constitutional provisions relevant for legislative powers of the provincial council you will find in art. 154 G. And
specifically I’ve mentioned art. 154 G (1), because that’s the specific provision that recognizes the legislative capacity of
the provincial councils and then it is supplemented of course by schedule 9 specifically the provincial council list.

And art. 154 G, the entirety of the provision basically deals with the legislative powers of the provincial councils and also
how it works out as against the parliament. Because what happened upto 1987, there was one institution making
legislation and that was the parliament. so therefore it is sufficient to have art. 75 of the constitution and 76 to mention
that parliament is exercising all legislative powers. Therefore there was no need to specify what are the thematic areas
of legislative power that the parliament is dealing with.

But now, with the provincial councils being established, there is now a need to share the legislative capacity that was
entirely with the parliament upto now as between the two institutions and while maintaining the superiority of the
parliament. So that difficulty and complex task is what is being done by art. 154 G).

If we go to 154 G) (1), you will see the statute making capacity of the provincial councils.

What are the requirements based on which the provincial councils can make statutes?

1) Obviously, they have to make legislation subject to the provisions of the constitution.
2) Provincial councils can also make statutes regarding subject areas that are in the first list of the 9 th schedule
(Thematic limitation)
3) Geographic limitation – Can only make statutes only for the province which it is established

Therefore, subject to the constitution, thematically matters in the provincial council list, geographically focusing on the
province for which it is established they can make statutes.

The next question immediately on the flipside is, then what happens to the parliament in relation to the matters that are
given to the provincial councils? Because we know that our country is unitary and therefore the parliament has to
remain supreme. So, therefore, that means that not even the provincial council list can completely exclude the
parliamentary capacity.
So what happens to the parliament in relation to the matters that are in the provincial council list? Those are laid out in
art. 154 G (2), (3), (4) & S.

Firstly looking at art. 154 G (2), that refers to the fact that any bill that is going to repeal or amend the provisions of the
chapter or the 9th schedule. So any constitutional amendment to the 13th amendment that will affect or completely
remove the 13th amendment or the 9th amendment will not become law unless it has been referred by the President at
the beginning of the legislative process of the parliament. After the publication in the gazette and before it is placed in
the order paper of the parliament to every provincial council for the expression of their views. So if there is going to be a
constitutional amendment to the 13th amendment or the 9th schedule it has to be sent by the President to every
provincial council to seek their views. And if every provincial council agrees with the amendment the bill can be passed
with the majority of members of the parliament present at the voting (simple majority).But if one or more provincial
councils do not agree then, that has to be passed with a special majority required by art. 82 (2/3 rds majority).

Therefore in terms of amending the 19th amendment or the 9th schedule, meaning that if the parliament wants to change
in the provincial council lists or other lists, in a way that undermines the powers of the provincial council, they have to
follow this procedure first. Because otherwise what will happen is that the parliament will change the 13 th amendment
itself and thereby take away the powers of the provincial councils.

Art. 154 G (3) says that, any parliamentary bill is going to legislate on a matter that is in the provincial council list, that
will also not become law unless the president sends or refers that bill for every provincial council for expression of their
views. So if the parliament is now going to legislate on a matter that is in the provincial council list, then they have to
first send it for the expression of views of every provincial council and if all the provincial councils agrees that can be
passed with a simple majority. If one or more provincial councils does not agree then there is a requirement to pass that
bill with a 2/3rds majority. So its not that the parliament cannot legislate on the provincial council list its just that the
procedure is now more complicated.

Then there’s the second element in relation to art. 154 G (3), that is to say that if one or more provincial councils do not
agree with the passing of the bill but the parliament if they nevertheless pass the bill with a simple majority, then that
parliamentary act will only be applicable to the provinces that agreed to that particular bill. But if the parliament passes
the bill with a 2/3rds majority then it’ll be applicable through out Sri Lanka.

Therefore it is in that way that the parliament can still access matters that are now in the provincial council list. The
process is more difficult, but they can still do it. And that is why the majority in the 13 th amendment judgement held that
is not a violation of the superiority of the parliament because they are not excluded completely. Because it is just a
procedural restrain.

And then 154 G (4), refers to an instance where one or more provincial councils have requested the parliament by
resolution to make law on any matter that is set out in the Provincial councils list. Therefore, when the provincial
councils request the parliament, also they can legislate on the matters in the provincial councils list with a simple
majority in the normal way.

The other instance is in 154 S where a provincial may by resolution decide not to exercise it’s powers under art. 154 G
with matters laid out in the provincial council list or the concurrent list. Then what would happen is that, once again the
parliament gets the capacity/ the parliament accepts the resolution made by the provincial council, then parliament can
make laws in relation to those matters in the normal way that the parliament would make law. So 154 G (4) is an
instance where the provincial council requests the parliament to by resolution to make law and according to one of the
interpretations given by prof selvakumaran, he says that this is the more temporary mechanism. Whereas, if it’s a
decision not to exercise powers in the provincial council list under 154 S, that would be a more permanent decision at
least for the duration of the term of the provincial council. Because it’s a procedure where the provincial council by
resolution decides to not exercise legislative powers and the parliament accepts it. So therefore in those circumstances
its considered to be more permanent by the Scholars but we haven’t seen this in practice but those are two instances
again where the provincial council can in a wau hand over the powers back to the parliament.

So therefore now the primary powers to make statutes in relation to the areas mentioned in the provincial council list
are with the provincial council but nevertheless, the parliament can also legislate on these areas following one of these
provisions as mentioned above.

Golden Sunrise (pvt) Ltd v Waste Management Authority of the Western Province
Where the petitioner, Golden Sunrise Ltd, was seeking a writ of certiorari among other things to invalidate the western
province waste management statute No. 7 of 2007 and seeking a writ of prohibition to restrain the chairman and the
directors of the waste management authority of the western province from interfering with the rights of the local
authorities to enter into a contractual relationship with the particular petitioner company with regard to disposing of
municipal solid waste generated within the administrative areas.

So here the question that is of interest to us, is whether The Western Province Waste Management Statute No.1 of
2007, whether that statute was valid based on the question of whether Waste Management was an item now devolved
to the provincial council.

And in this instance, the petitioners were arguing that waste management was not included in the provincial council list
so therefore its outside the capacity of the provincial council. However the court of appeal in this instance did not agree
with it cause they were of the view that waste management is one of the elements of environmental protection which is
within the list according to item 37.

Therefore this is an example where the courts recognize the fact that, the provincial council of the western province, in
this instance, was making statutes within the capacity of the provincial council. So therefore, that statute as being valid.

An Act to Amend the Greater Colombo Economic Commission Law No 4 of 1978

Where the petitioners challenged that this was violating matters that were in the 9 th schedule, the provincial council list.

Here, this particular Greater Colombo Economic Commission, through the amendment they were getting further powers
to exercise, perform or discharge in relation to any licensed enterprise, all the powers that were assigned to any person
or an authority by law and relating to or relating to the approval of plans for buildings required for businesses… so
basically this particular proposed amendment was giving for the greater Colombo Economic Commission to engage in
licensing business enterprises and broader powers with regard to business enterprises within its administrative limits.

And here the question was that, the broader power that is being given to the GCEC, whether they were violating the
matters in the provincial council list including the items on local government and provincial housing. However, the SC in
this instance held that, the bill has to be approached by looking at the mischief that the amendment is trying to deal
with. Basically, what is the problem that the amendment is trying to solve?. And here the court finds that the
amendment is trying to eliminate delays and difficulties in relation to approvals and licensing for business enterprises.
And the court sees this as a valid purpose that the parliament can legislate for and that aspect as not violating the
provincial council list, the concerned items.

Here the court goes on to say that, when we are interpreting the 3 lists in the 9 th schedule, the 3 lists will have different
kinds of headings. And the same heading you will see appears in all 3 lists sometimes. So, therefore, the court says that
whenever there is only a heading the court is not going to assume that the entirety of the subject is devolved to the
provinces but they will take a narrower approach. In the sense that they will read through the 9 th schedule to see to
what extent the subject matter is actually evolved to the provincial council.

And in this instance, was not considered to be falling within the purview of local governments and provincial housings
with the matters that were devolved to the provincial council list.
So this is an example therefore where the court held that this particular aspect that was being dealt with by the
parliament was not violating the powers devolved to the provincial council.

So now we’ve dealt with the constitutional framework relating to the provincial council list and what are the powers
given to the provincial council and what are the restrictions the parliament faces now when they want to legislate on the
provincial council list matters.

Next, we deal with the reserve list,

LAW-MAKING POWER UNDER LIST II – RESERVED LIST

The reserved list deals with the powers that are reserved for the centre. And the provision for that is in art. 154 G (7) & it
says that the provincial councils do not have any power to make statutes on any matter set out in the second list which
is the reserved list.

And if you look at the reserved list, the final item that also mentions all matters that are not mentioned in lists 1 & 3 is
also within the reserved list. Basically, the legislative powers of the provincial councils are limited to what is expressly
mentioned in lists 1 & 3.

And in relation to the reserved list, it’s a monopoly of the centre, exclusively the parliament has the capacity to make
legislature on those areas and the provincial councils cannot.

LAW-MAKING POWER UNDER LIST III – CONCURRENT LIST

That is dealt with in art. 154 G (5), here what happens is that in relation to the concurrent list, basically, the parliament
can make law and the provincial council can make statutes. But when the parliament is making laws with respect to any
matters in the concurrent list they have to do so after consulting with all the provincial councils as the parliament may
consider appropriate in the circumstances. And the way in which the consultation is to happen is laid out in the standing
order 46 a) of the parliament and its states that, the idea is that the speaker has to direct the secretary general to
forward the copies of the bill to each of the provincial councils and to ask the provincial councils to report their views to
the parliament within one month. And then, if the provincial councils respond their views will be taken into account
otherwise the parliament will proceed. Because as you can see, art. 154 G (5) says that as parliament may consider
appropriate. So, therefore, the parliament doesn’t have a mandatory duty to seek views.

And when the provincial councils want to make statutes on the area, once again subject to the provisions of the
constitution when they want to make statutes on a matter related to the concurrent list, they have to do so after
consulting with the parliament as they may consider appropriate in the circumstances in each case.

Therefore that is how the law making happens as between the parliament and the provincial councils in relation to the 3
lists.

Then if you look at art. 154 G (6) it says that, ‘If any provision of any statute made by a Provincial Council is inconsistent
with the provisions of any law made in accordance with the preceding provisions of this Article, the provisions of such
law shall prevail and the provisions of such statute shall, to the extent of such inconsistency, be void.’ Meaning that,
when the parliament makes law following the procedures, say, their making a law in a matter relating to the provincial
council list and they do so following the procedure laid down in art. 154 G (3). Then, once the parliament has complied
with those provisions and has made legislation that legislation will take supremacy. If the Provincial council has made a
law that is inconsistent with the parliamentary legislation at that point those will be void because parliamentary
legislation takes supremacy. So that is how the parliament’s superiority in relation to the provincial councils is protected.
Then the immediate question is, then what happens to the existing legislation? Made before 1987?

EXISTING PARLIAMENTARY LEGISLATION

154G (8) & (9)
154G (8) deals with situations where there is an existing parliamentary legislation on a matter that is now in the
provincial council list. Then what has to happen is that when the provincial council now wants to make a statute on the
same matter, they have to describe that they are making statute on that matter and that it is inconsistent with the
existing parliamentary law and that has to be described in the long title of the statute. That’s the procedural
requirement.

Then when it is stated so, the effect is that once that statute receives assent of the Governor for the duration of the
statute being in operation the parliamentary law will remain suspended and inoperative within that province. Basically,
for the period that the statute will be valid, the parliamentary law will be suspended and inoperative for the period that
the statute will function. The moment that the statute is repealed or removed by the provincial council then the
parliamentary law will come back into operation. So that’s what happened to existing legislation that is dealing with the
provincial council list items.

ALAWWA V KATUGAMPOLA
There was a parliamentary legislation on cooperative employees’ commission was set out. What happened was that,
using that parliamentary legislation the relevant minister in the provincial administration made appointments to the
particular commission and then the commission was giving relief to a particular victimized officer against the
respondent. And the respondent, in this case, was challenging the order of the cooperativemployees’es commission on
the basis that there was no statute providing for this particular cooperative employees’ commission so therefore the
provincial minister did not have the capacity to make appointments for the members to this non existing commission. So
then the issue was that the cooperative employees’ commission was made by the parliament. But the provincial minister
was making appointments. So the question was whether, in the event that there is no provincial statute, is this valid?
Can the provincial council minister make appointments when there is no provincial council statute making provisions for
this?

And in this instance the court held that according to art. 154G (8) the existing parliamentary legislation, the effect of
art.154G (8) is to keep the existing parliamentary legislation operative until there was a replacement coming from the
statute. So therefore, 154G (8) says that in one way this is the way for a new inconsistent statute to come about in
relation to a matter in the provincial council list. But what it does on the other side, is to keep alive the existing
parliamentary legislation until there is a statute made following the procedure to replace or suspend that particular
parliamentary legislation.

Therefore courts in this instance recognize the fact that, this art keeps all the laws in force in relation to matters in the
provincial council list, until the provincial council makes a particular statute that is inconsistent with the existing
parliamentary legislation.

And then the court went on to recognize, so then the parliamentary legislation is valid, then the question is whether the
provincial minister can make this appointment. And the courts said that was valid because there came into effect the
provincial councils’ consequential act in the aftermath. Provincial councils consequential provisions act no.12 of 1987
came into effect to ensure that whenever there is an existing parliamentary legislation dealing with a matter that is now
within the perview of the provincial council, then the provincial minister and the provincial administrators can
implement that legislation.

So what the Provincial Council consequential provisions act no. 12 of 1989 does is to say that, is to say that, there would
existing parliamentary legislation and as I said there’s not a lot of statutes so that means that a lot of the existing
parliamentary legislation will continue. So then the question is according to the 13 th amendment if you look at the
executive powers in 154C, “Executive power extending to the matters with respect to which a Provincial Council has
power to make statutes shall be exercised by the Governor of the Province for which that Provincial Council is
established, either directly or through Ministers of the Board of Ministers, or through officers subordinate to him, in
accordance with Article 154F”

Therefore the question here is more about implementing the legislation that is made by the central government. The
default position is that the central government legislation will be implemented by the central executive and the
administration. But then what would happen in this instance is that, if there are no provincial statutes and the existing
parliamentary legislation are going to continue that means that the central executive and the administrative will have a
lot of powers in relation to implementing matters that are now within the purview of the provincial council. And in order
to prevent that the provincial councils consequential act said that, whenever an existing parliamentary act is dealing
with a matter that is now within the purview of the provincial council list, implementing those acts with the provincial
administration. So whenever a parliamentary act is referring now to a minister or a public official, if it is a matter within
the provincial council list, the provincial ministers and administrators can take actions in relation to that central
parliamentary act.

So in Alawaa V Katugampola, cooperative employees’ commission was provided for by a central parliament act. But
because it was considered to be a matter coming within the provincial council list the provincial minister could be the
minister making appointments despite it being a central parliamentary act. And the validity of that was recognized in
this particular case.

154G (9)

Which is talking about what happens to existing parliamentary legislation when it is dealing with a concurrent list
matter. So there the question is, when the provincial councils wants to make a statute on the same matter inconsistent
with the parliamentary legislation unless the parliament by resolution decides to the contrary, that law can also be
suspended and inoperative within the province for the duration of the statute.

However, because this is the concurrent list, the parliament can also then intervene and decide to the contrary and that
would stand. And in that case once again the parliaments’ position can be restored.

In Re Local Authorities Housing Statute No. 2 of 1995 of the Provincial Council, North Central Province
Here the court held in this instance that the long title of the statute and the two of its provisions were inconsistent with
the provision because the long title of the statute fail to comply with the requirements in art. 154G (8), therefore
because these affected provisions derogate from the powers that are already given to the local authorities (basically this
statute takes power away from the local authorities) and it is expressly prohibited if you look at the provincial council list
(item 4 (3)). So in that sense, this local authorities housing statute was inconsistent with the constitution because it was
trying to take away powers from the local authorities and also its inconsistent with the existing law but has no mention
of that in the long title. So for those reasons this statute was considered to be invalid in this instance. So that’s an
example relating to how the procedural requirement in art. 154G (9) has to be followed quite strictly.

The final two provisions in art. 154G (10), is a provision that reiterates what has been said so far to ensure that the
parliament remains supreme but also of course subject to what has been said in the 13 th amendment. So that is basically
the drafters of the 13th amendment to reassure the 2 sides.

Then in 154G (11) says that, despite what is specifically said in para 3, the parliament can make laws in matters relating
to the provincial council also, to implement treaties, agreement, conventions to ensure that sri lanka is following its
international obligations.

NATIONAL POLICY
Broadly what we are doing here is to look at how the courts have interpreted some of the provisions found in Schedule
9. And there the first example we are looking at is this question of National Policy and then I’ll also refer to how the
courts have interpreted the land powers that are found in the provincial council lists alongside the concurrent and the
reserved list.

In relation to National Policy, what does this mean and how is it relevant under the 9 th Schedule?

If you refer to the reserved list List II, you will see that there is a first heading saying national policy on all subjects and
functions and there is nothing by way of description afterwards.

So, therefore, national policy on all subjects and functions according to how the list is written seems to be a heading but
there is no description as to what is included in this national policy, what amounts to national policy. So there is no guide
whatsoever. So that’s why interpreting this provision has given rise to questions for the judiciary.

FIRST ITEM IN THE RESERVED LIST

AGRARIAN SERVICES

The first example where this came into question was in relation to agrarian services. And the issue was when the
Agrarian Services act no. 58 of 1979 was sought to be amended by the,

The Agrarian Services (Amendment) Bill of 1991

And this particular amendment bill dealt with issues relating to landlords and tenant cultivators and this particular
amendment was trying to add new inquiry officers and a board of reviews but there was no reference to national policy
in this amendment bill. And the petitioners were challenging this bill on the basis that this was violating certain
provisions in the provincial council list and the concurrent list. And basically, the specific provisions that the petitioners
were referring to were item 9 of the provincial council list and item 8 of the concurrent list.

The petitioners were claiming that items 8 & 9 is violated while the deputy solicitor general appearing for the state also
arguing that this bill comes within the purview of item 9 and also item 18 on land in the provincial council list. Therefore
it seems as if both the petitioner and the state seems to be on agreement that this bill deals with matters relating to the
provincial council list. However, when the court was going to interpret this act, firstly the courts said that its not possible
to determine whether a matter is within the list I or list III just by looking at the headings of the list. Because, the
headings are very general and similar headings appear in all 3 lists. And the courts also said that it cant be assumed that
a title of an enactment, meaning the title of the legislation of the bill suggested, just because it coincides with the
subject matter of an item in the 2 lists doesn’t mean that the act will automatically be dealing with the subject matter
mentioned in one of the items. Basically the courts were saying that we have to read the ninth schedule and not just the
headings and also the fact the bills concerned has to be read completely to ascertain the subject matter the legislation is
trying to deal with.

So therefore, based on the courts next goes on to say that none of these items or none of the subject matters that are
dealt within this bill falls within the items that are referred. Because the court was of the view that this was dealing with
the rights of the tenant cultivators, determination of disputes, devolution of the rights between the cultivators and the
tenants. Therefore the courts was of the view that these are not dealing with matters of agriculture but rather dealing
with rights and dispute resolution as between the parties concerned. Then therefore the courts did not see this as an
agricultural matter nor did the courts see this as a matter concerning land and land tenure.

The courts next went on to say that, in a blanket way, for the purpose of the present bill they are deciding that all the
matters dealt with, with regards to rights and liabilities of owners and tenant cultivators are matters of national policy so
therefore all the matters are dealt with by this amendment bill falls within the purview of List II, reserved list.

Therefore because this bill is formulating national policy relating to rights and liabilities of tenant cultivators and land
owners, the central parliament has the capacity to legislate on this particular matter.
And Dr Jayampathi critiquing the conclusion of this judgement on the basis that this was a very far-reaching conclusion
given the fact that both the petitioners as well as the respondents did not seek to argue that this was national policy. So,
therefore, from the starting point itself, of this use of national policy, we see the courts also seeing open towards
recognizing certain items falling within the purview of national policy, and thereby going to decide that those are
matters that the center can deal with.

And then ofcourse its afterwards only we see the state picking up this argument and making the argument to defend the
legislation made by the center. So then as a result of this, decision by the supreme court immediately in the aftermath of
the decision an additional solicitor general from the Ag’s department also went on to advice the secretary of the
ministry of agriculture cultural development and research, to say that, based on this decision the matters that are dealt
within the bill are all matters of national policy on the rights and liabilities of the owners, so therefore since this falls
within the reserved list, the central ministry on agricultural development can now proceed on the basis that agrarian
services as a whole is not a devolved subject. So therefore we see the Ag dep interpreting this decision even more
broadly in a way that facilitates centre claiming the powers of the provincial council list.

And then, even if this was national policy, just because the centre has laid out national policy on a certain matter on its
own doesn’t make the entirety of the particular subject to fall within the reserved list. And then of course as a result the
ministry went ahead to take over the provincial departments of agrarian services and then later there is an attempt on
the part of the AG to rectify this mistake by informing the ministry that, just because the matters in the bill are
considered to be of national policy doesn’t mean that agrarian services have now been shifted to the reserved list as a
whole. That is not the result emanating from this Judgement. Despite the rectification coming from the AG, thereafter
the Agrarian services departments of the provinces has continued with the center.
So therefore, this is one instance where we see the interpretation of the courts leading to, the courts using the
argument of national policy to expand the powers given to the parliament to legislate on certain matters using the
argument of national policy. Thereby the officials of the center, AG dep, the ministries also going on the basis of that
judgement to engage in further centralization of powers.

However the court revisited this question on Agrarian Services in,

Madduma Banda v Assistant Commissioner of Agrarian Services

Where an assistant commissioner of Agrarian services as the respondent, has made an order under sec. 18 of the
Agrarian services act, that a tenant cultivator had defaulted paying agricultural rent. Therefore the tenant cultivator is
liable to be evicted.

The tenant cultivator in this instance was challenging the order of the services assistant commissioner. And the question
was whether this matter of Agrarian services was within the purview of the provincial council list so that the provincial
high court can hear this matter. And in this instance, the courts say that the provincial high court had jurisdiction in this
instance because the court goes on to take a broader interpretation of the item 9 in this instance, saying that, the
dispute relating to tenant cultivators and land owners came under the provincial council list on the basis that the
agrarian reference in the provincial council list, refers to land and property so therefore it involves obviously paddy land
and the tenant cultivators.

Therefore the courts in this instance goes to change the position or in a way overrule the decision that was taken in 1991
through the agrarian services amendment bill. But nevertheless, the initial impact of the determination continues to an
extent.

This case is now the latest case agrarian services, that particular item 9 should not be interpreted so limitedly. Because
their interpretation of item 9 was that, its not just about agricultural and agrarian services, it needs to be interpreted
more broadly to also include the person who are engaging in agriculture within those lands.
PASSENGER TRANSPORT

Where the transport The National Transport Commission Bill was challenged. What the bill was trying to introduce was
to privatize the national transport and thereby basically to state that ownership and operation of all services related to
passenger transport by omni busses shall be vested wholly in the private sector, and it states that, no state institutions,
provincial council or local authority or any corporate body within the state can engage, can acquire, ownership or
control of any private institution that is providing passenger services.

Therefore the purpose of this bill was to privatize passenger transport and exclude provincial councils, local authorities,
entirety of the state apparatus from providing passenger services.

But according to item 8 of the provincial council list however, vests the regulation of road passenger carriage services
and carriage of goods by motor vehicle within the province and the provisions for inter provincial road transport services
with the provincial councils. So therefore there is a question involved whether this bill also affects the provincial council
because this bill affects item 8 and the capacities given to the provincial councils. But in this determination there is no
question on the basis that this is affecting the provincial council list so therefore, needing to follow art. 154 G (3)
procedure. That argument is not made in the case because the case was going on as Fr case because the petitioners
were challenging that this particular bill as it was originally formulated was violating the right to equality on the ground
that, it excludes the state, the provincial councils, the local authorities from being involved in omnibus passenger
transport. So therefore the argument was made on the basis of equality, violation of art. 12 (1) and the reference that
this affecting the provincial council list was not brought.

However, in the preamble in the particular act, it was stated that this was the policy of the government of sri lanka. The
arguments that led to the determination does not question whether this is indeed national policy or not, because the
idea is that according to the preamble there’s reference here to the fact that this is the policy of the government.
Whether that amounts to national policy that question has not come up. And the courts in this instance, unlike in the
previous instance do not go into that argument on their own so therefore this is an example of an instant where the
courts as well the petitioners and the respondents seem to by implication accept the fact that this is indeed a part of the
national policy so therefore that the parliament is equipped to legislate on these matters.

So that’s the second example where the preamble of the parliamentary legislation it self recognize or referred to
national policy and that was accepted as coming within coming within the capacity of the parliament to legislate on.

And then the third example is how our courts have recognized that National policy can be made through executive
action.

NATIONAL POLICY BY EXECUTIVE ACTION

When we look at Schedule 9 it lays out the legislative capacities of the provincial councils and the parliament. So
therefore this argument or this critique is made by Dr Jayampathi Wickremaratne stating that, therefore the capacity to
make national policy that would then be recognized as being within the capacity of the center has to emanate from the
parliament. Meaning that it has to be national policy that is laid out by the parliament that is protected under the
reserved list or that has exclusivity under the reserved list.

But our courts have gone to recognize that, national policies that are made by executive action can also be protected or
can also be recognized as falling within the capacity of the center and thereby giving superiority to the national policy
made by the central executive over the actions that are taken by the provincial council. And the example of that is this
case of,

Kamalawathi v Provincial Public Service Commission of the Northwestern Province

Where the petitioners were trying to challenge that the particular circular issued by the Ministry of Education and higher
education following the approval that was given to the National Teacher transfer policy by the cabinet of ministers as a
national policy has not been challenged by the provincial public service commission of the north western province.

So basically what happened was that there was a national teacher transfer policy that the cabinet of minsters approved
and then there was a circular issued by the particular central ministry following that national teachers transfer policy.
And the argument of the petitioners was that, that circular following the national policy needs to be followed by the
particular provincial public service commission. And In this instance, the court held that the particular circular set out
national policy in an important aspect of education so therefore the courts said that, while the powers on education has
been devolved to the provincial councils those powers must be exercised in conformity with national policy and once
national policy has been duly formulated in respect of any subject there cannot be conflicting provincial policy on the
same subject.

So therefore, the courts in this instance recognize that its not only the parliament that can duly formulate national policy
on all subjects and matters devolved to the provincial councils, and also to the fact that the cabinet of ministers’
approval also amounts to duly formulating national policy that would then have to be followed strictly by the provincial
level.

So therefore that is another way in which this national policy subheading in the reserved list was expanded to make sure
that the central level decision making takes precedence over the decisions made at the provincial council level.

Therefore in all these 3 examples that I gave, the national policy point is in one way or the other expanded. So in the first
instance, court referred to national policy and stated that this is an instance of the parliament making national policy,
therefore that is within the capacity of the parliament – agrarian services. And in the passenger transport example, the
legislations’ preamble referred to the policy of the government and it was accepted even without argument that, that
would amount to national policy and thereby giving the parliament the capacity to legislate on these matters. And in the
third instance, it was recognized by the courts that, it was not only the parliament but also the executive at the central
government level can duly formulate national policy and then in those instances those national policies will take
precedence over the provincial decisions and therefore even the decisions taken by the central executive in this
instance can limit the capacities in the provincial level.

So therefore all these 3 examples go to expand the powers of the central parliament/ government using the argument of
national policy and the impact of that is to restrict the power of the provincial councils.

We have the Madduma Banda case which gave a more broader interpretation to item 9 and this is another example
where the national policy argument was interpreted narrowly by the courts to facilitate devolution. And interestingly
both Madduma Banda case as well as the Divi Naguma case are decisions where J.Shirani Bandaranayake was part of the
bench.

Divinaguma Bill (2012)

This bill was trying to establish a set of authorities, the department for divinaguma development, divinaguma
community based organizations at the district and the national level, divinaguma community based banks, so it was
trying to introduce a whole framework aiming to promote rural development etc. and this was to supersede samurdi
authority, southern development authority and udarata development authority, those particular acts. So therefore this
was trying to set up an entire mechanism with the title divi naguma. And the argument of the petitioners was that this is
going to violate a whole host of items in the provincial council list.

So basically the argument is that the particular clauses of the bill affects the items mentioned on the other side of the
table. (in the judgement)

So the question then was whether all these clauses were instances where the central parliament was laying out national
policy so therefore within the purview of the central parliament to make legislations on. Here, in the preamble of the
divi naguma bill there’s once again reference to the fact that this is a bill that is laying out national policy. But the courts
do not accept it just because that’s stated in the preamble of the divi naguma bill. Instead the court says that, the court
will engage in an assessment to see whether the provisions in the divi naguma bill are actually matters of national policy
or whether their operational, functional items that would then go to violate or affect the items that are within the
provincial council lists. So in order to make this assessment the court firstly recognizes that, if it’s a provincial council list
item they cannot come into effect without following the procedure in 154 G (3) and broadly that interpretation of the
constitution and the particular legislation in this instance has to happen in taking into account the purpose of the 13 th
amendment. And according to the courts in this instance, the purpose of the 13 th amendment is to devolve powers to
the provinces. And the courts say that this is recognized in cases like the town and country planning amendment bill, the
13th amendment determination and the madduma banda case. Therefore the courts say that we have to engage in this
assessment of answering whether its national policy or not in this instance, in a way that facilitates devolution of power.
And the courts in order to decide whether they are matter of national policy or not they use the functional test.

And by the functional test, they are stating that, they will look at the nature of the provisions and the purpose and
object of the legislation in light of the 13th amendment and the three lists. And in a context where the 13th amendment
and the 3 lists are trying to devolve power to the provinces, how are we going to look at the nature, object and the
purpose of the legislature. On that basis, the courts says that it is clear in this instance in relation to the divi naguma bill,
apart from referring to the national policy in the preamble all the rest of the provisions are functional matters that are
dealing with matters that are referred to in the provincial council list as well. So therefore there affecting the powers
that are given to the provincial council so therefore there is a need in terms of the 13 th amendment to follow art. 154G
(3) procedure. And the courts in this instance also says that, we shouldn’t interpret the constitution as giving powers in
one hand and taking away those powers in another. Which is exactly what has been happening in relation to the
provincial councils.

Therefore the Divinaguma determination is one example where the courts tried to engage or tried to facilitate legislative
devolution as the purpose of the 13th amendment and thereby took a narrow interpretation of national policy and tried
to distinguish between what is a national policy and what is functional items. And made sure that functional matters left
for the provincial councils to engage in statute-making and thereby devolution of legislative powers are facilitated. So
therefore that’s a different approach from the approaches that we saw before.

Basucally if we look at the jurisprudence of our courts, we have decisions which are not focused on upholding the
devolution of powers and we also have judgements like this which are expressly stating that the purpose of the 13 th
amendment is to devolve legislative power therefore needs to be upheld.

INTERPRETATION OF LAND POWERS

Solaimutu Rasu v the Superintendent, Stafford Estate

This case is one of the recent cases of interpretation of land powers and I’m specifically referring to this case firstly
because of the importance of land powers (because devolving land powers has been one of the key demands of the
minority communities who were seeking devolution of powers) and police powers has been a demand that was coming
from the minorities communities in laying down a devolution mechanism. And we already referred to the fact that even
though there is a devolution of police powers that has not been implemented in practice.

Land powers are important because even at the moment around 80% of Sri Lanka’s land are state lands so therefore the
question is in this instance is about who has the authority to in regard to dealing with this majority of land within the
state.

So the question in this case was that the petitioner in this instance was issued a quick notice to recover a land from
illegal occupation and the quick notice was basically issued under the state land recovery of possessions act no. 7 of
1979. And the petitioners in this instance tried to plead for a writ of certiorari before the provincial high court of kandy.
And the provincial high court however upheld the preliminary objection that land was not a matter within the provincial
council list therefore they did not have the jurisdiction to issue writs in this particular in this instance.

And then this came before the court of appeal and the court of appeal reversed the decision of the provincial high court
and said that this was a subject of the provincial council list therefore the provincial council can issue writs. And then,
the matter came before the SC. And there are 3 concurrent judgements for this case, by CJ Mohan Pieris, J Sreepan and J
Eva wanasundara.

Going first to the Chief Justices decision,

He firstly highlights the fact that, the sri lankan state remains unitary and he goes on to say that, the implication of being
a unitary state is that there is no cessation of dominion in land except in limited circumstances. So therefore his
argument is that we are a unitary and the implication of that is that the ownership of the land also remains with the
center.

And if we look at the constitution without looking at the case, item 18 of the provincial council list it says that….and then
appendix two talks about….there’s reference to land once again in the reserved list…. (state land and foreshore)

Therefore its on the basis of reference to land in the provincial council list that it was initially assumed that now land
powers has been devolved to the provincial councils. But however in this judgment J. Peiris says that, because we are a
unitary state the ownership remains with the center except in limited circumstances and he goes onto say that that the
courts cant impose restrictions taking a liberal approach. And then the court goes onto interpreting the 3 lists stating
that, that there is reference to the bruding or overraching presence of the republic or the center in both list 2 & 1 and
then in appendix 2 of list 1. So therefore his argument is that when interpreting land powers we need to read what is list
2 first and then we have to go to list 1. Because we are a unitary country, therefore land remains with the center,
therefore we start are reading of the constitution from list 2 and then we go to list 1. And based on that the judgement
goes on to say that the intention of the framers does not intent to give a special position to land and the role that is
given to the provinces are subsidiary.

And then the court goes onto the read the specific provisions thereby appendix 2 on land and land settlement, the court
says that its very clear that following from lists 2, that the state land is to vests with the republic.

And then reading appendix 2 the sub item 1 state land, ……… so therefore the initial understanding of this word ‘shall’ is
a mandatory requirement but the courts in this instance says that ‘shall’ does not mean the government has to consult,
its just a requirement to seek concurrence, its not a mandatory requirement.

So therefore, the courts say that this means that the provincial council can only access state land within the province
when the government makes it available to them. And then the provincial council only has the powers of administration,
control, and power to utilize such land according to the law. The ownership remains with the center.

Justice wanasundara agrees with this and her argument is also that the intention of the parliament needs to be upheld
and she says referring to Welagama v Eksath lank kamkaru samithiya, that the intention of the 13 th amendment in this
instance, has been to devolve share very specific powers and not to provide for a general devolution of powers to the
provinces. So therefore you will see that there is a difference to how the intention of the parliament read by judges in
Sulai muthu rasu vs how the judges read it in madduma banda or divinaguma cases.

And Justice Shreepan also agrees with the same reasoning on the basis that provincial councils are only exercising
subsidiary legislative powers and that according to the reserved list the state land and the foreshore remains with the
center.