Barriers in Executing the 13th Amendment to the Constitution

by M.I.M Mohideen, Daily Mirror, Colombo, December 18, 2008

Devolution of power was first introduced into the Sri Lankan Constitution with the passage of the 13th Amendment, certified on November 14, 1987, following the Indo-Lanka Accord of July 29, 1987. Although the scheme of devolution was meant to cover the nine provinces, it is indisputable that the catalyst was the ethnic conflict and the need for a politically negotiated settlement by addressing the legitimate grievances and aspirations of the minorities of Sri Lanka--the Tamils and the Muslims.

Owning to the [current] President intervening and proposing that the 13th Amendment be first implemented until the final report of the APRC is made available, the full implementation of the 13th Amendment has become a prerequisite for a possible negotiated solution to the national question in Sri Lanka. When the 13th Amendment was first introduced in 1987, the minorities expressed strong reservations about many aspects, including the provisions on land, law and order, role of the Governor and on the limited financial powers granted to Provincial Councils. Most of our Chief Ministers from both the UNP and the UPFA are now expressing the same frustrations that were expressed initially by the minorities.

The 13th Amendment in practice

The three lists are the Provincial List, Concurrent List and the Reserve List. The list dealing with Central Parliament powers is drafted in a very expansive and inclusive way, whereas the list dealing with Provincial powers is drafted in a very narrow and restricted way. If you look at the provisions which deals with Local Government, something that can be devolved without any problems with respect to national security or sovereignty, you will see that it is drafted in such a way that there are lot of conditions attached. This means that  the Central Parliament retains powers over a number of aspects of Local Government. Land is even more interesting. It talks about alienation and use of land to be a provincial subject. Provinces are given responsibility over land is through the establishment of an institution called the National Land Commission. The Commission is to consist of Central Government representatives and Provincial Council representatives, so that the provinces also have some sort of say over the use of land. But for twenty years, the National Land Commission has not been established.

There is no criteria spelt out as to what is a ‘national school’ and what is an ‘ordinary school.’ The Central Minister of Education can wave his ministerial wand and convert a school from an ordinary school into a national school, thereby taking it under the control of the Centre. While the Provincial Council elections were on, the Minister of Education declared a number of schools in Ampara District to be national schools.

The 13th Amendment says national highways are matters for the Centre. Who decides what a national highway is? Under the Thoroughfares Ordinance, there is an amendment, Section 5A introduced in 1988 which empowers the Minister, either to declare a road or a class of roads. So he has declared all ‘A Class Roads and B Class Roads as national highways. The roads connecting Trincomalee, Batticaloa and Pottuvil all along the eastern coast are either A or B - that is for the Centre.

For over twenty years, the provisions on police matters have not been implemented. The 13th Amendment to the Constitution devolved police powers to a certain extent on the provinces and also provided for the establishment of Provincial Police Commissions. Yet, none of the provinces other than the North-East showed any interest in establishing its police force. When she was the Chief Minister of the Western Provincial Council in 1993/94, former President Chandrika Kumaratunga insisted that the police powers be vested in the Provincial Councils, but she did not sign the relevant gazette notification when she became the Executive President.

In last year’s meeting of Chief Ministers, a resolution was adopted to push for land and police powers to the provinces. SLFP General Secretary and Minister Maithripala Sirisena said in May 2008, that the Government would devolve all powers including police powers to the East in accordance with the 13th Amendment to the Constitution. Eastern Province Minister M.L.A.M. Hisbulla has also told recently that a three member committee would be appointed soon to grant land and police powers to the Eastern Province.

Article 1 54G about the power relating to executive matters

The Provincial Councils have the power to make statutes. Unless and until statutes are made in respect of Provincial Council subjects and Concurrent subjects, the Provincial administration will not be able to exercise executive powers. The average delay in the Attorney General’s Department after a draft has been sent is 2-3 years and this is what has affected the legislative capacity of Provincial Councils. In 2003, the Supreme Court unanimously held that paddy cultivation is a matter for the provinces. However, even after that judgment was delivered, Provincial Councils still do not implement it. The Centre is not giving up and the Provincial Councils do not want to take over. This is the unfortunate situation.

The Cabinet Ministerial Sub-Committee appointed on the full implementation of the 13th Amendment has not met yet. The Minister of Constitutional Affairs is not a member of that Committee. Neither is Prof. Vitharana who is the Chairman of the APRC. When the 13th Amendment is the law of this country, what the Eastern Provincial Council could do is to pressurize the Government. First tell them “Stop declaring national policy on Provincial and Concurrent list subjects without consulting us.”

Specific problems encountered by the North-East Provincial Council

The problems that the elected North-East Provincial Council (INEPC) faced from December 1988 to March 1990 are with regard to the implementation of the powers devolved by the l3th Amendment. The 16 month administration of the first Provincial Council for the merged North-East was mired in controversy and a fight for political survival. It was reported that the Muslims in the North-East were harassed by province’s ruling Eelam People’s Revolutionary Liberation Front (EPRLF), the Eelam National Democratic Liberation Front (ENDLF) and their guardian - the Indian Peace Keeping Force (IPKF). On March 1, 1990, Varadharaja Perumal, the then Chief Minister of the merged N and E, convened a special meeting of the North Eastern Provincial Council and announced an ultimatum to the Premadasa Government for the fulfilment of 19 demands of his party, the EPRLF. The reason was that the Provisions of the 13th Amendment were not fully implemented —powers on police and land were not granted to the periphery.

Problems in respect of the administrative structure

The implementation of the devolution of powers down to the grassroots level cannot take place without the NEPC exercising control over the District Kachcheri System, the Divisional Assistant Government Agents and the Grama Sevaka Officers. A request was therefore made to the President to transfer the District Kachcheris in the provinces and the offices subordinate to it, to the NEPC. The President was not agreeable to that request but decided on an alternate solution, which was for both the NEPC and the Central Government to have control over the District Government Agents, while only the NEPC was to exercise control over the Divisional Assistant Government Agents and Grama Sevaka Officers. Subsequently, the President even made the appointment of the Government Agent Trincomalee without consulting the Chief Minister, and reversed the earlier directions regarding NEPG control over the Divisional Assistant Government Agents and Grama Sevaka Officers. The President also proceeded to elevate the Government Agents as District Secretaries on par with Provincial Secretaries. He also elevated Divisional Assistant Government Agents as Divisional Secretaries on par with Provincial Heads of Department. These executive actions frustrated devolution of powers Thus, the institutional structure to implement devolution at the district level and below became a major problem, reducing the NEPC to a glorified Municipal Council in Trincomalee.

Sinhalisation of the Eastern Province

After de-merging of the East in October 2006, the Eastern Province administration was ethnically transformed. There are many Sinhalese ex-servicemen now in key positions. The Eastern Province Governor, the Government Agents of Ampara and Trincomalee Districts, the Rehabilitation Coordinator, the Governor’s Secretary, the Provincial Chief Secretary and the Secretary to the Eastern Province Public Service Commission are all Sinhalese. The Land Minister in the Eastern Provincial Council and the Secretary to this Ministry are also Sinhalese. Although 80% of schools in the Eastern Province are Tamil medium schools, the Education Minister is a Sinhalese. The combination of Sinhala administrative and security officials are well equipped for the rapid implementation of the Sinhalization programme of the Eastern Province.

Shortage of management services personnel

There is an acute shortage of engineers, accountants and administrators to work in the Provincial Councils. The Centre was not at all helpful in meeting the requirements of the PCs. The NEPC took the next logical step of calling for applications and recruiting engineers and accountants. This was strongly resisted by the Central Ministry in charge--Public Administration. That Ministry even wrote to say that the recruitment of engineers and accountants was the prerogative of the Centre. When the NEPC was earlier pleading for engineers and accountants, that Ministry turned a deaf ear. It was at that stage that the Chief Minister A. Varatharaja Perumal remarked that even if the Sinhala political leadership of Sri Lanka wished to keep the country united, the bureaucrats in the Centre would ensure the division of the country.

Conclusion

1. Most of the Sinhala Politicians have an anti-devolution mindset.

2.  The all-island management services is not devolution friendly.

3. The existing institutional structures in the provinces and the districts are not conducive for devolution.

4. Even after all the Provincial Councils came into existence, only the NEPC was clamouring for institutionalizing devolution of powers. The other provinces waited for the benefits of devolution to accrue to them through the efforts of the NEPC.

5. All the three Lists of devolution given in the 9th Schedule to the Constitution are weighted in favour of the Centre, due to the unitary character of the Sri Lankan Constitution.

6. The unitary character of the Sri Lankan Constitution helps the Sinhala majority central authorities, most of whom have an anti-devolution mindset to infringe upon the powers devolved to the minorities.

7. The experience of the last twenty years shows that even the minimum devolution to the minorities will not be possible until the anti-devolution mindset of the Sinhala politicians and bureaucrats is first got rid of.

Today there is no democracy in the Eastern Province. Election monitors have said that the Eastern Provincial Council Election was the most corrupt election ever held in Sri Lanka. The Tamil community cannot go about freely, the Muslim community cannot go about freely and even the Sinhalese community cannot go about freely in the Eastern Province. If the para-military groups are not disarmed and the 13th Amendment is not fully implemented immediately, the minorities in the North-East would soon join hands to mobilize local and international support to protect their legitimate constitutional rights in Sri Lanka.