014-SLLR-SLLR-1996-1-ATUKORALE-V.-ATTORNEY-GENERAL.pdf
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Sri Lanka Law Reports
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ATUKORALE
V.
ATTORNEY-GENERAL
SUPREME COURT.
G.P.S de SILVA, C.J.
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. (S.D) NO. 2 of 1995.
28 DECEMBER, 1995.
Constitutional Law-Bill to amend Pradeshiya Sabhas Act – Power to varylimits of and number of members of and dissolve a Pradeshiya Sabha -Constitution – Articles 3, 4 (e) and 12 (1) – Citizen's Petition.
Article 3 of the Constitution vests sovereignty in the people and proceeds toenlarge the concept of sovereignty by adding to it fundamental rights andthe franchise. But by Article 4(e) of the Constitution, the Parliament in pre-scribing the manner of exercising the franchise has limited the franchise toits exercise at the election of the President of the Republic, members ofParliament and at every Referendum by every citizen who has attained theage of 18 years and being qualified to be an elector has his name enteredin the register of electors. It does not cover exercise of the franchise atelections to Pradeshiya Sabhawas. If Parliament desires expansion of Arti-cle 4(e) by including the franchise exercisable at elections not specifiedtherein, it can be appropriately amended but it is significant that no suchamendment has been effected. Hence the proposed amendment is not in-consistent with Article 3 of the Constitution. Accordingly the Bill will notrequire approval by the People at a Referendum.
(2) In enacting legislation Parliament is bound to ensure equality before thelaw and equal protection of the law for persons or classes of persons whoare similarly circumstanced. The proposed legislation did not carry appro-priate guidelines for the exercise of the powers of the Minister and theabsence of appropriate guidelines would result in discrimination and therebydeprive the persons affected, equaly before the law and equal protection ofthe law. Hence the impugned clause is inconsistent with Article 12(1) and itcan only be passed with the special majority required under paragraph 2 ofArticle 84. If the impugned clause (2) of the Bill is amended as specified atparagraphs A, B and C (of the determination) it will cease to be inconsistentwith Article 12(1) of the Constitution.
Cases referred to :
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Atukorale v. Attorney General
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Minister of Home Affairs v. Fisher (1979) 3 All ER 21 (PC).
Re The Thirteenth Amendment to the Constitution (1987) 2 Sri L.R. 324.
PETITION under Article 121(1) of the Constitution against Bill to amend thePradeshiya Sabhas Act.
K.N. Choksy PC with Daya Pelpola, D.H.N. Jayamaha, Luxman Perera,A.L.B. Brito Mutunayagam and Anii Rajapakse for Petitioner.
Shibley Aziz PC Attorney-General with S.Sri Skandarajah S.S.C. and UdithaEgalahewa S.C. for State.
Cur.adv.vult.
28 December, 1995.
The Court delivered its unanimous determination as follows :
A Bill titled "A Bill to amend the Pradeshiya Sabhas Act" was pre-sented to this Court along with citizen's petition SC (SD) No. 2 of 1995.
Clause 2 of the Bill seeks to add two new sections to the principalenactment. Of them, the proposed section reads:
"9A. The Minister may at any time by Order published in the Ga-zette:-
vary the limits of any Pradeshiya Sabha area:
vary the number of members determined under section 4 forany Pradeshiya Sabha:
dissolve any existing Pradeshiya Sabha and direct that itshall be replaced by a new Pradeshiya Sabha to be constituted inlieu of such existing Sabha, whenever it appears to him to beexpedient so to do upon any variation of the limits of thePradeshiya Sabha area for which the existing Sabha was consti-tuted:
dissolve any Pradeshiya Sabha for the purpose of constitut-ing any other local authority in its place. *
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The proposed Section 9B makes the new Sabha the successor ofthe dissolved Sabha; transfers the property, rights, powers, duties,debts, liabilities and obligations of such dissolved Sabha to the newSabha so far as such property is situated within the administrativelimits of the new Sabha or rights etc. So far as the same relate to anyarea within administrative limits of the new Sabha; and requires refer-ences in any enactment, order, rule, regulation or law etc. to suchdissolved Sabha for the purpose of any area within the administrativelimits of such dissolved Sabha, which shall be included within the ad-ministrative limits of the new Sabha.
The petitioner avers that the power vested in the Minister to varythe limits of Pradeshiya Sabhas declared under Section 2 of the Actand to vary the number of members determined under section 4 of theAct affects the franchise and hence Clause 2 of the Bill is inconsistentwith Article 3, that there are no guidelines for the exercise of suchpowers or to regulate the power to dissolve a Pradeshiya Sabha henceClause 2 is inconsistent with Article 12(1). The Petitioner further com-plains that the provisions of Article 154 G (3) which requires the Presi-dent to obtain the views in respect of this Bill before placing it on theOrder Paper has not been complied with.
The Petitioner avers that for the foregoing reasons, the Bill is in-consistent with the Constitution and cannot be passed except with thespecial majority required by Article 84 (2) and approved by the peopleat a referendum in terms of Article 83.
Pradeshiya Sabhas were constituted in terms of section 2(1) ofthe Act which requires that the limits of every Pradeshiya Sabha areacorrespond, as far as possible, to the limits of an Assistant Govern-ment Agent’s division excluding any area comprised in a MunicipalCouncil or a town (within the meaning of the Urban Councils Ordinance).It would seem, therefore, that Pradeshiya Sabhas were substituted inthe place of Village Councils andTown Councils. In terms of section 4,the Minister determines the number of elected members of a PradeshiyaSabha, having regard to the extent, population and the level of eco-nomic development of the Pradeshiya Sabha area.
Under section 5, the term of office of each member of a PradeshiyaSabha shall, unless such member vacates office earlier by resignation
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or removal be for a period of 48 months. Section 5(2) empowers theMinister to curtail or to extend the term of office of members so how-ever, that such curtailment or extension shall not exceed one year.
The term of office of each member of a Pradeshiya Sabha shall, inthe case of a first General Election, commence from the date speci-fied by the Minister under section 6, which section empowers the Min-ister to appoint the date of commencement of the term of office ofeach Pradeshiya Sabha by Order published in the Gazette which dateshall also be deemed to be the date of the Constitution of suchPradeshiya Sabha.
At the hearing before us, Mr.Choksy P.C. for the petitioner informedus that he would limit the objections to the Bill by confining himself tothe submissions based on Articles 3 and 12(1) of the Constitution.
Mr. Choksy's principal submission was that Clause 2 of the Bill,which seeks to enact a new section 9A is inconsistent with Article 3 ofthe Constitution in that the exercise of the powers thereby conferredon the Minister would adversely affect the franchise of the voters whoelected the existing Pradeshiya Sabhas or who will be voting at futureelections. He argued that the expression "franchise" should not belimited to voting at the election of the President and of Members ofParliament and at a Referendum (which are the occasions when fran-chise is exercisable in terms of Article 4(e) of the Constitution). Mr.Choksy submitted that the Constitution should be liberally interpretedin the context of contemporary circumstances. Vide Jain "Indian Con-stitution" 4th Ed. p. 834; Minister of Home Affairs v. Fisherand thatthis Court should give the expression 'franchise' in Article 3 a widerconstruction in view of the preamble to the Constitution which interalia ratifies "the immutable republican principles of REPRESENTA-TIVE DEMOCRACY" and specially in view of the directive principlesof State policy, Article 27(4) which reads :
‘The State shall strengthen and broaden the democratic struc-ture of government and the democratic rights of the People bydecentralising the administration and by affording all possibleopportunities to the people to participate at every level in nationallife and in government".
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Article 3 contains provisions relating to the sovereignty of the peo-ple. It reads:
"In the Republic of Sri Lanka sovereignty is in the People and isinalienable. Sovereignty includes the powers of government, fun-damental rights and the franchise”.
This Article vests sovereignty in the People and proceeds to en-large the concept of sovereignty by adding to it fundamental rights andthe franchise. Article 4 provides for the manner of exercising sover-eignty. Article 4(e) states :
"The franchise shall be exercisable at the election of the Presi-dent of the Republic and of the Members of Parliament, and atevery Referendum by every citizen who has attained the age ofeighteen years, and who, being qualified to be an elector as here-inafter provided, has his name entered in the register of elec-tors”.
It would appear from the above provisions that having extendedthe concept of sovereignty by adding fundamental rights and the fran-chise, Parliament in prescribing the manner of exercising the fran-chise, limited it to voting at the occasions referred to in Article 4(e).The wider meaning of franchise which would include voting at otherelections such as election of local bodies or Provincial Councils hasnot been adopted.
It was held in Re The Thirteenth Amendment to the Constitution^that Article 4 is not entrenched and is open to amendment providedthat such amendment has no prejudicial impact on the sovereignty ofthe People. Therefore, if Parliament desires an expansion of Article4(e) by including the franchise exercisable at elections not specifiedtherein, it can be appropriately amended. It is significant that no suchamendment has been effected.
Mr. Choksy strongly urged that Article 4(e) is not exhaustive of themanner in which the franchise is exercisable and that the franchise ismentioned in Article 3 without any limitation. In support, he relied onthe dicta of Wanasundera, J. in the Thirteenth Amedment case (p.
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Atukorale v. Attorney General
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339) where he said *it should be noted that funda-
mental rights and the franchise are specifically mentioned in Article 3without any limitation". It should be noted that Wanasundera, J. wasthere considering the extent to which Article 4 is linked to Article 3 andthe possible situations in which any amendments to Article 4 may im-pinge on Article 3. He has not attempted to extend the manner of exer-cising the franchise.
For the foregoing reasons, we hold that Clause 2 of the Bill is notinconsistent with Article 3 of the Constitution. Accordingly, the Bill willnot require the approval by the People at a Referendum.
Mr. Choksy next submitted that Clause 2 of the Bill is inconsistentwith Article 12(1) in that the exercise of the powers vested in theMinister by the proposed new section 9A would, in the absence ofappropriate guidelines, result in discrimination and thereby deprive thepersons affected equally before the law and equal protection of thelaw. It is settled law that in enacting legislation Parliament is bound toensure equality before the law and equal protection of the law for per-sons or classes of persons who are similarly circumstanced.
The Attorney General submitted that the amending Bill has be-come necessary in consequence of a revision of the administrativelimits of the Assistant Government Agent's divisions and that fromabout 1989 the Cabinet of Ministers had been considering the questionof redefining the boundaries of existing Pradeshiya Sabhas to makethem co- terminus with the revised administrative limits of the AGAdivisions. This as well as the other changes indicated in the Bill havenot been possible due to the absence of appropriate provision in thePradadeshiya Sabhas Act.
The Attorney-General does not deny the need for adequate guide-lines for the exercise of the powers vested in the Minister. He informedus that the intention is to exercise the powers under the proposedsection 9A(a) and (b) subject to the guidelines contained in sections 2and 4 respectively and to exercise the powers under section 9A (d)subject to the relevant guidelines found in the Urban Councils Ordi-nance and the Municipal Councils Ordinance, as the case may be. Healso informed us that it is intended that any orders that may be made