Are Provincial Councils a White Elephant?

by Sunil Kusumsiri, Nation.lk, Colombo, February 20, 2011

The Provincial Councils were introduced as an instrument for devolution of power under the Indo-Lanka Peace Accord signed by Indian Prime Minister Rajiv Gandhi and Sri Lankan President J R Jayewardene in July 1987.
The PC system became a legal entity in the Sri Lankan polity following the passage of 13th Amendment to the Constitution on November 14, 1987. Although the new Amendment required that a Provincial Council be established for each province, the North and East were merged as one province when the PCs were established initially. The North and East were de-merged later following a ruling given by the Supreme Court and there is a separate PC for the Eastern Province functioning now.

To devolve power to N&E
The Provincial Councils, 22 years old now, have been described as a white elephant by opponents of the system from the very inception. The main purpose of the PC system was to devolve power to the North and East, but ironically, the system had been in operation only in the South. 

Many an academic has expressed the view that the PC system has not served the purpose for which it was established, for a number of reasons. The failure to carry out the devolved functions systematically and effectively, lack of adequate financial provisions, interference and taking over of certain devolved functions by the central government are among the reasons adduced by these critics.

ICS Study
A study on the working of Provincial Councils in Sri Lanka was conducted recently by the senior researchers of Institute for Constitutional Studies (ICS). Professor Ranjith Amarasinghe, Professor (Emeritus) of the Department of Political Science of the Peradeniya University, Asoka S Gunawardena, a former Chairman of the Financial Commission and a senior officer of the Sri Lanka Administrative Service, Dr Jayampathi Wickremaratne PC, Constitutional expert and Prof A M Navaratne Bandara, Head of the Department of Political Science of the Peradeniya University. They have in a collective effort brought out a book based on the results of ICS study titled An evaluation of the working of the Provincial Councils in Sri Lanka.

Symposium
A conference titled ‘National Symposium on Devolution’ inspired by this analytical work was held at the Hotel Amaya Lake in Kandalama last week. Justice Minister Rauff Hakeem, Uva Governor Nanda Mathew, Former North-East Chief Minister Vartharajah Perumal, TNA Parliamentarian M A Sumanthiran, PC Ministers, opposition leaders, members and Chief Secretaries from the eight Provincial Councils participated in this conference. The symposium proceedings followed the brief talks delivered by the four co-editors of the analytical work, An evaluation of the Provincial Councils in Sri Lanka. The keynote address was delivered by Director, India’s Institute of Public Administration Dr Rakesh Hooja.

Powers of Governor
The main topic that figured at the discussions was the powers of the Governor of a Provincial Council. Governors being appointees of the Executive President would naturally play the role of representatives of the President and the central government. A governor is in a position to execute his executive powers directly or through the Board of Ministers or the officials. He is empowered to exercise his discretion in the discharge of any function and the Governor’s decision is final. And his decision cannot be challenged in a court of law.
Despite being armed with such executive powers, most Governors in carrying out their duties fall in line with the views of the Board of Ministers headed by the Chief Minister. As a result, clashes between them are reported to be minimal. However, Education Minister of the Eastern Provincial Council Wimalaweera Dissanayake complained that their Governor has become a stumbling block to the smooth functioning of the Provincial Ministries including his. He charged that the Governor did not allow him to recruit teachers or even transfer a teacher despite his being the Minister of Education. If he had no power even to affect the transfer of a sanitary labourer, what is the purpose of his being a Minister, he asked. A former military officer, the Governor is trying to run the Provincial Council too in the military style, the Provincial Minister alleged.
Chief Secretary Western Provincial Council Lalith Kannangara, Opposition Leader Kithsiri Kahatapitiya and PC member Mahesh Almeida said that their Governor Alavi Mowlana, despite being a politician himself does not interfere in the administrative affairs of the Council. PC members and officials from the UVA PC also said that their Governor Nanda Mathew too was non-interfering.

Draft statutes
Another topic that took centre-stage at the deliberations was the drafting of statutes.
Laws are necessary for running of a PC. These laws are called ‘statutes.’ However, these statutes are a far cry from the laws enacted by the Parliament. The PCs are empowered to enact statutes in respect of the subjects delegated to them and those containing in the concurrent list. The PCs cannot enact statutes in respect of subjects on the Reserved List, which do not fall under their jurisdiction. A PC planning to enact a statute pertaining to a subject appearing on the Concurrent List has to obtain the prior approval of Parliament.
President’s Counsel Dr Jayampathi Wickremaratne said there is a sharp decline in the number of statutes being adopted by PCs. 
Prof Ranjith Amarasinghe pointed out that the main reason for this situation is the shortage of officials possessing the professional expertise to draft statutes. He said that many statutes drafted by incompetent officials with flaws like being incompatible with the Constitution, imperfect and replete with technical defects have been rejected. Many officials tasked with drafting statutes have made it a practice to submit them to the Attorney General to in a bid to ensure their legality. The President himself has issued a directive that all draft statutes be referred to the Attorney General for his sanction.

Lack of expertise
It transpired during the deliberations that a large number of draft statutes referred to the Attorney General had been gathering dust at his department for months. “Some draft statutes had lain unattended at the Attorney General’s department for over six months and some drafts had awaited disposal for more than three years. And there had been occasions where the Council had been dissolved by the time approval had come from the AG’s Department.
A former Legal Draftswoman now in retirement Ms Sriyangani Fernando said that the PCs should have their own legal Draftsmen.

DBs at PCs expense
The subject of allocation of funds to PCs too came under lengthy deliberations. The Financial Commission has to advise the President on allocation of funds to PCs. But there is none to represent the interests of the PCs on the Commission. The PCs are dependent on the central government in regard to financial provisions, said Asoka S. Gunawardena.

The PCs are not empowered to levy Customs duties and Income Taxes which are good sources of income. The PCs once were collecting the Turnover Tax. This power too was withdrawn through the last Budget. The PCs have now been directed to utilise all the taxes they collect to meet the commitment of paying salaries and pensions of PC employees. As a result, the PCs are compelled to depend on government funding for implementing development projects which they initiate. It is in this context, the participants pointed out, that the PCs have come to be seen as a white elephant.

The central government virtually takes back part of the budgetary apportionment made for the PCs in order to distribute it as the decentralised budget allocations to 225 MPs at the rate of Rs.5 million for one MP. Some participants pointed out that that it is unfair to make decentralised budget allocations to MPs from the monies voted for PCs when it is the responsibility of the PCs to carry out development in their respective provinces. They pointed out that if the PCs are given the Rs.1,125 million now being distributed among the MPs, they (PCs) could channel the monies into well-planned development projects in their respective areas.

Powers & Privileges Act
Yet another topic that figured prominently at the deliberations was the powers and privileges of PCs. Number of PC members pointed out the need to have an Act similar to the Parliamentary Powers and Privileges Act passed in Parliament.

A deplorable situation where it is difficult to for a PC to summon a high government official to a committee appointed by it has arisen due to PCs not having any powers and privileges vested in them. Though some officials from low ranks attend such committees high officials like District Secretaries very often ignore the invitations to attend them. A certain Divisional Secretary from the Central Province while refusing to attend a PC-convened committee had said that he was answerable only to the Auditor General. He had finally attended the committee in question following persuasion by the Chief Minister and the Governor. Therefore, it is quite clear there should be an Act vesting powers and privileges in PCs too, among other things, secure the participation of high government officials in PC committees.

The PC members also stressed the need of legal recognition of PC positions such as the Leader of the House, Opposition leader, Government Whip and Opposition Whip.
Taking over of certain powers and functions of PCs by the governments in power came in for flak from many participants. Taking over of hospitals and schools run by the PCs by the government has become a routine feature today, they said. A PC member who spoke on this matter recalled that former President Chandrika Kumaratunga as the Chief Minister of the Western Province was very vocal about securing Police and several other powers. But once becoming the President she lost interest in this cause she fiercely espoused.

Many participants said that most PC members look on their position as a stepping stone to enter Parliament and once they realise their aim, they conveniently forget the imperatives for making PCs a success. The PCs have fallen into the sorry state it is in today due to this attitude.

Conclusion
The Provincial Councils, which the people never asked for, have nevertheless become part and parcel of the country’s Constitution today. Therefore, the PCs should be geared to the country’s development by delegating to all powers specified in the Provincial Councils Act. This was the conclusion reached at this conference.