by Nirmala Chandrahasan
LL.B, LL.M, Ph.d, Attorney –at -Law
The on-going debate as to whether it should be 13th Amendment ,13 Amendment plus or no 13th Amendment, seems misplaced considering that it has been a part of the Constitution since 1987 and that under the 13th Amendment together with the Provincial Councils Act no 42 of 1987, Provincial Councils have been established since 1988 and are operating in all the provinces of Sri Lanka bar the northern province.
In terms of the constitutional provisions the northern PC, too, will have to be established shortly as the armed conflict in that region has been concluded two years ago and there is no reason to delay its establishment.
The only question which has not been debated is why there has been no genuine devolution of power during this period and how best to implement the constitutional provisions and make the Councils more effective as providers of the public services they are supposed to deliver and not mere white elephants.
It is generally accepted that devolution of powers is a concept which allows for the people to have a greater say in matters affecting their localities, rather than allow all power to be in the hands of a centralized bureaucracy. Furthermore it is designed not just for a particular segment of the population but for all the people of the country.
Thus, far the Councils have not functioned successfully because their law making capacity, has not been utilized, their administrative competence is not provided for, and they lack financial viability. Let us first look at the law making capacity. Schedule 9 of the Constitution sets out three lists, a Provincial List, a Reserved List, and a Concurrent List.
Under Article 154 G (1) of the Constitution, a Provincial Council has the power to make statutes applicable to the province for which it is constituted, on any matters set out in list 1. The list includes, planning and implementation of provincial economic plans, local government, co-operatives, health, rural development, land, regulation of road passenger transport services, agriculture etc.
Police and public order, land settlement and education are also devolved subjects and are more fully described in three appendices to the List. On the face of it this seems a very comprehensive list. Parliament can also legislate in respect of subjects in the state list either by a simple majority where, upon reference to it of such Bill, every provincial council agrees and by a two-third majority where one or more councils do not agree to the passing of the Bill.
The Reserved List of subjects which are reserved for the Centre includes defence, foreign affairs ,ports and harbours, national transport etc. The reserved list in the Sri Lankan Constitution begins with the rubric, “National policy on all subjects and functions”. A reasonable interpretation of this provision would be that Parliament can lay down national policy relating to a matter on the provincial list and the Provincial Council should adhere to this in making statutes.
However, it has been interpreted as permitting the Centre to intervene and take over matters lying within the Provincial List. To take an example under item 8 of the Provincial Council list, the regulation and provision of road transport services within the province is a provincial subject. Accordingly the first Western Province Provincial Council passed a statute to run a transport system and the minister of transport in the Council purchased three buses from China.
Within a week of the inauguration of the service the government declared that running such a service was in conflict with national policy and the statute was declared invalid. In many more instances the Centre has taken over hospitals and schools coming under the jurisdiction of the province by declaring them as national schools or hospitals. Furthermore without even following the procedure set out in the Constitution whereby Parliament can legislate in respect of provincial subjects, successive governments have been taking over subjects and declaring national policy by Cabinet decisions and Ministry Circulars.
The Constitution provides that where a provincial council makes a statute a previous law on the same subject which is inconsistent with it, becomes inoperative and is suspended. In 1988 when the provincial Councils started functioning, it was found that there were about 300 laws in force pertaining to subjects in the Provincial and Concurrent list. All these referred to the functions and powers of Ministers in the Central Government.
The provincial councils had to make the necessary changes to these laws to transfer such powers and functions to the ministers and officials of the provincial council. However, the practical difficulty in making such statutes arose from the fact that the Councils do not have legal draftsmen and the necessary capacity to draft statutes. For this reason many of the earlier laws remain in force and the Centre still exercises its powers and functions over matters which should now be transferred.
In 1989, the Provincial Councils (Consequential Provisions) Act was passed providing that all references to officials under the Central government in subjects that are now in the Provincial Council List should be construed as reference to corresponding provincial authorities. However, this Act has been interpreted to mean that unless a provincial statute is made, the Central authorities can also continue to exercise power if they so wish.
On this basis, for example the Centre took over the Ratnapura and Kegalle Base hospitals administered by the Sabaragamuva Provincial Council. Similarly, in respect of the power of supervision over local authorities the central minister can also continue to exercise powers. In this way, there is a continual diminishing of the powers conferred on the provincial councils.
Furthermore, the Provincial Councils (Consequential Provisions) Act does not cover matters falling within the Concurrent List, hence there are still about 200 laws still covering these areas and as stated earlier the Councils do not have the necessary capacity to draft statutes to replace these laws.
These problems can be solved to some extent by the Centre preparing model drafts for the Councils. But most importantly the Centre must exercise self restraint and Central ministers and officials must be willing to hand over powers. Where the Provincial Council belongs to the same political party as the Centre there is greater cooperation but where the council is under the control of a party in the opposition the Centre makes use of the rubric, “National Policy on all functions” as well as narrow interpretations of the Provincial Councils (Consequential Provisions) Act, to poach on subjects within the Provincial list.
For the Provincial Council system to work effectively distribution of powers must be made explicit and devoid of ambiguity. Where National Policy or National Standards need to be laid down it should be done through a participatory process with the involvement of the provinces culminating in framework legislation passed by Parliament. Provinces would be required to conform to such framework legislation when passing statutes. This was also the recommendation of the Majority Report of the Experts Committee in 2006.
The executive power of the Province extends to the matters with respect to which it has power to make statutes. Article 154C read with 154 F, states that this power shall be exercised by the Governor with the aid and advice of the Chief Minister and Board of ministers. It is mandatory that the Governor in the exercise of his functions acts in accordance with such advice, except in those instances where he is required to exercise his discretion.
Hence, we can see that the Governor’s role is that of a constitutional head in a Westminster style constitution and is similar to the position of the Governor in an Indian State. However, this has to be made clear and constitutional conventions have to be observed. The matters in which the Governor can use his discretion are very few and would arise in instances where there is no clear majority and he has to appoint the chief minister or in cases of dissolution of the Council.
He also exercises discretion in respect of a statute made by the Council and presented for his assent, as he can either give his assent as is the usual course, or send it back for reconsideration, with or without such amendments as he may suggest. If after reconsideration the Council still passes the statute without any amendment, the Governor has the discretion to give his assent or reserve it for reference by the President to the Supreme Court, for a determination as to whether it is inconsistent with the Constitution, within the stipulated time of one month. In some instances Governors have used this provision to delay the passing of financial statutes even beyond the time limit stipulated.
The Governor has also been given powers in respect of the finances which are set out in the Provincial Councils Act, Part 111. Under this Act the custody of the Provincial Fund of a province, the payment of monies into the Fund and all matters connected thereto shall be regulated by rules made by the Governor and similarly in the case of the Emergency Fund of the Province the Governor has custody and this includes withdrawals from this fund.
Furthermore any statute which involves expenditure from the Provincial Fund of a province shall not be passed unless the Governor recommends it. In the context that the financial provisions have caused unnecessary tensions and conflict in some provincial councils, I would suggest that the Provincial Council Act be amended so that custody of the funds lies with the Provincial Council. Amendment of this Act by Parliament could be by a simple majority as it is not a part of the Constitution.
As regards the Fiscal powers of the Province, provision is made for the Councils to collect revenue by way of taxation, including business turnover taxes, vehicle licensing fees, and fines imposed by the courts within the province. However, any statute which makes provision for the imposition, alteration, remission or regulation of any tax, and amendment of any law in respect of any financial obligation, as well as appropriation of monies out of the Provincial fund can only be moved on the recommendation of the Governor.
As we have seen in a context where the Governor and the Council do not see eye to eye, the Council is caught in a bind and hence amendment to this provision in the Provincial Councils Act is required. As income from taxation is not sufficient, funds are also allocated by the Central Government and a Finance Commission has been appointed to advise the Central government on the criteria for allocating funds to the province.
However, over the last twenty years it has been the case that these funds are not released in time and as a consequence funds have been under utilized. The Provincial Councils have to depend on the Treasury funds for their recurrent expenditure as well as for the salaries of the staff.
The fiscal and financial arrangements for devolution need to be redesigned. These should address the spirit of devolution to enable provinces to perform as efficient providers of public services assigned to them. The Councils should also have the competence to directly negotiate foreign investments and international borrowings within the limits laid down by the Ministry of Finance of the Central Government and subject to such criteria and limitations as may be specified by Parliament.
This competence was provided for in the Draft Constitution Bill of 2000. This will give those provincial authorities who display initiative to develop their areas without waiting for the centre to spoon feed them. The Finance Commission could have a bigger role to play and should also be required to report on the areas of Centre-Province overlap in expenditure in areas of provincial competence.
Turning to the Provincial administration the Chief Secretary of the province is appointed by the President with the concurrence of the Chief Minister. There is also a Provincial Public Service Commission, members of which are appointed by the Governor. The Governor has the power to alter, vary, or rescind any appointment made, order of transfer, or dismissal made by the Provincial PSC.
Here too the Governor should act with the advice of the Board of Ministers, and the Provincial Councils Act should be amended accordingly. At present the higher officials do not come under the purview of the Provincial PSC because they are members of the All Island Service, controlled by the Central Public Service Commission. These appointments are done by the Ministry of Public Administration, along with parallel ministries.
Secretaries of Ministries and Heads of Departments of the Provincial Council administration are appointed by the Central Public Service Commission. Furthermore the Centre has to approve provincial public service cadres. Even if vacancies exist in approved cadres, the Centre has to give permission for filling the cadres. The Chief Minister of the Eastern province and the Minister of health have gone on record publicly declaring that they are not allowed to appoint even a labourer to the provincial hospital. Devolution of powers has to be not only effective but devoid of duality.
Hence the district administration should be restructured so as to form part of the provincial administration. The Government Agent, District Secretary, and the Divisional Secretary while also belonging to the All Island Service should hold the rank of a head and deputy head of department respectively in the Provincial Administration. All Grama Niladaris in a Province should be absorbed into the provincial public service.
These changes have also been recommended in the majority report of the Experts Committee on the Constitution appointed in 2006. As a preliminary step the offices of the Divisional Secretary and Grama Niladaris could be transferred to the Provincial Public service by executive action.
The powers in respect of Law and Order and Police which are set out in Appendix 1 to the provincial list have still to be devolved. This is a matter which those provinces which favour the idea could press for. I would suggest that to address the security concerns of the different communities, it could be laid down administratively that in areas which are constituted predominantly of a particular community the police personnel stationed in those areas should be predominantly of that community, while still retaining a multi ethnic character.
Thus, for example in areas where the Indian origin up-country Tamils predominate there would be a certain ratio of police personnel drawn from this community and similarly in other areas where there are minorities, whether Sinhalese, Tamil or Muslim. This was one of the recommendations of the Subcommittee on minority concerns of the panel of Experts.
Land is also a subject under the provincial List. The provisions of Appendix 11 should be implemented without delay. In respect of land alienation in inter-provincial irrigation schemes, the criteria set out in Appendix 11, according to which priority should be given to persons displaced by the projects, landless of the district, and thereafter landless of the province should be followed as also the provision that the demographic pattern of the province should not be significantly disturbed.
Furthermore in the matter of allocation or disposition of state land in the province by the Centre, Appendix 11 requires that this should be done on the advice of the Provincial Council. Hence in respect of allocations of land in the province for tourism or urban development which fall within the Concurrent list, the Centre cannot arbitrarily allocate land without the concurrence of the provincial authorities, and the Provincial authorities have to be given a voice in these matters.
This is necessary as development of an area does not necessarily follow by giving state lands to construct hotels and to big corporates for business ventures as it may impact on the livelihood of local fishing and farming communities. Furthermore lands may be alienated in situations where the owners who have been internally displayed due to the war are unable to substantiate their claim as they have lost their title deeds and other documents.
Thus, the provincial authority which could better voice the concerns and aspirations of the people should not be excluded by the centre in the matter of alienation of land within the province. The provision in the 13th Amendment for the establishment of a National Land Commission in which all the communities are represented should be speedily implemented.
To my mind the most important issues which need attention are the issues relating to the administrative and financial powers of the Province, and providing a clear delineation of what matters come within national policy, to be determined by Parliament setting up framework legislation in collaboration with the Provinces. I have outlined the measures that could be taken in respect of the above matters, to ensure smooth working of the Councils.
The priority now is the rehabilitation, reconstruction and development of the war devastated areas of the country. In the implementation of plans to this end the participation of the peoples’ representatives at the district and provincial level is essential to make this process effective. For the Councils to effectively participate the administration in these districts must function not as a separate arm of the Centre but as an integral part of the Provincial administration.
Most of the changes proposed could be administratively implemented under article 154 T of the Constitution, which provides that the President may by order published in the gazette take such action or give such directions for the purpose of giving effect to the provisions of the Constitution or for the administrative changes needed therefore, or for the purpose of removing any difficulties. Any amendments as suggested above to the Provincial Councils Act could be done by a simple majority of Parliament as this is not a part of the Constitution.
It will be seen that the powers which the Councils currently have are in no way as threatening as is being represented. Furthermore, even those powers that are there have not been adequately used, or are stymied by governmental and bureaucratic interference. The working of the provincial Councils over more than two decades shows that it requires some amendments to the Provincial Councils Act.
But equally important is a change of heart by the Centre and the bureaucracy as well as the Provincial authorities to make it work not for any political benefit or power that they hope to accrue for themselves, but for the good of all the people of the country whether they be Sinhalese Tamil, Muslim or Burgher.