Review

Significance of devolution and 13th Amendment

The Provincial Governor: Rights and Duties under the 13th Amendment.

Author Lakshman Marasinghe

Institute for Constitutional Studies, Colombo, 2009. xvi + 153 pp. Hb.

Reviewed by Dr. Shivaji Felix, Attorney-at-Law

Dr Lakshman Marasinghe's latest enterprise constitutes a significant contribution to the discourse on constitutional law, in the specific context of devolution of power, in this country. The author's work is, as usual, scholarly, thorough and well researched. The work comprises four chapters supplemented by a well presented index of cases and an index of relevant statutory provisions. There is also a very useful appendix setting out in full the 13 Amendment to the Constitution, the Provincial Councils Act, No 42 of 1987, the Provincial Councils (Consequential Provisions) Act, No 12 of 1989, and the Provincial Councils (Amendment) Act, No 28 of 1990.

The operation of Provincial Councils in our country is supposed to be an application of democracy in practice. Yet, the notion of democracy itself is something that gives rise to considerable confusion - it refers to both an ideal and an actuality (vide Robert A Dahl, 'On Democracy' (New Haven: Yale University Press, 1998], at p. 26). Devolution is commonly regarded as a process not an event - the phrase was first used by Ron Davies in his book 'Devolution: A process not an event' (Wales: Institute of Welsh Affairs, 1999]. In the context of the United Kingdom's experience devolution was only one of the possible variations considered in an attempt to modernise that country's constitution - federalism and confederalism were alternatives to the devolution settlement which were not seriously pursued by the UK government (vide Noreen Burrows, 'Devolution' (London: Sweet & Maxwell, 2000], at p.2).

Devolution of power in Sri Lanka was virtually thrust upon us: the 13 Amendment to the Constitution and the Provincial Councils Act were given legal effect consequent to external pressure. The resulting position has been that even after two decades we are still discussing ways and means of fully implementing the 13 Amendment to the Constitution. Ordinarily, legislation by a representative assembly is especially appropriate for a society whose members disagree about fundamental issues of principle - it demonstrates that our decisions are made and derive their validity in the midst of, not in spite of, our political and moral disagreements (vide Jeremy Waldron, 'Law and Disagreement' ( Oxford University Press, 1999]). However, the 13 Amendment to the Constitution did not constitute legislation enacted by a legislative assembly acting on its own volition.

It is in this context that Marasinghe's book is so timely and important. In this book the author examines the role and function of the Provincial Governor. It is common knowledge that the ideological basis for the Thirteenth Amendment to our Constitution can be found in the Indian Constitution. Article 356 of that country's constitution is a valuable tool for preventing secession and asserting the pivotal role of the central government. For instance, in 'SR Bommai v India, AIR 1994 SC 1918: (1994) 3 SCC 1', the Supreme Court of India held that the President's dismissal of three state governments of the Bharatiya Janata Party (BJP) was valid in view of the fact that the state governments were incapable of complying with the principle of secularism - which was part of the basic structure of India's Constitution.

Chapter one and two of the author's work examine the position of the Governor under the 13 Amendment. There is an assessment of how the Westminster model was transplanted and the position of the Governor in the light of that model. There is also a discussion of the law applicable to the appointment, rights, role and termination of office of the Governor.

Chapter three discusses the role of the Governor when choosing a Chief Minister whilst chapter four has a detailed analysis of the Governor's powers.

The latter chapter is very comprehensive and the author has taken much effort to examine the scope of a Governor's powers. This chapter includes a discussion of the extent to which the Governor's power to appoint a Chief Minister can be subject to judicial review. There is also a very useful discussion of a Governor's power to dissolve a Provincial Council and his role in the administration of a Provincial Council.

Chapter four also has a very interesting discussion of the President's power to amalgamate two or more provinces. The author has examined in detail the implications of the judgment of the Supreme Court in 'Wijesekara v Governor of the North - East Provincial Council, SC (FR) No 243 - 245/ 2006'. The chapter also includes a very thought provoking discussion of the Governor's role consequent to a declaration of an emergency. The book is very well written and generally well proof read although there are certain minor lapses. The overall literary presentation of the work is very satisfactory and the author can be justly proud of his endeavours. The author demonstrates the qualities of a critical, reflective lawyer who approaches his subject with a wholly appropriate fusion of history, politics, legal theory and philosophy thereby achieving the necessary equilibrium between theory and practice.

The book is difficult to put down because it is indeed so engaging: it is a careful and thought provoking study of an aspect of devolution of power in our country in a legal, political and historical setting.

It deserves the serious attention of judges, historians, constitutional lawyers, law teachers, students and anyone interested in devolution of power in Sri Lanka. It is certainly a book well worth possessing.