Fact or Fiction?
by MCM Iqbal, ‘Groundviews,’ Colombo, July 19, 2009
(The writer was one of the secretaries of the first Provincial Council of the Western Province)
In the aftermath of the defeat of the LTTE in Sri Lanka, many expected the government to put forward the promised political solution to the problems of the Tamils which led to the war. Those who expected this were disappointed when the President said at a recent interview with the ‘Hindu’ newspaper that the solution would be put forward only after the next Presidential elections. Almost soon after this statement, the Indian High Commissioner in Sri Lanka is reported to have said that the Indian government is putting pressure on the President to put forward the solution as soon as possible. Whether such pressure would bring the expected results is to be seen.
India and many others have been suggesting that only a full implementation of the provisions of the 13th Amendment to the Constitution with additional measures to make the devolution more effective, was the most feasible way of meeting the aspirations of the Tamils. While the Tamil National Alliance (TNA) which has a majority of representatives in the Parliament has turned down this suggestion as being no where near their expectations, the Jathika Hela Urumiya and the Janatha Vimukthi Peramuna on the other hand have strongly come out against the implementation of the 13th Amendment, as they fear that would pave the way for a separation of the country. If that be so, the TNA seems to be so foolish as to reject out right, accepting the 13th Amendment. Much has been written on this subject in various journals and discussed extensively at seminars and workshop both locally and internationally. In spite of that there are many more who have not yet understood the true implications of the various provisions of the 13th Amendment which have been so skillfully introduced into it and the Provincial Councils Act (PCA) by its creators to make it appear that power has in fact been devolved to the Provincial Councils.Â This situation is aptly described by Dayan Jayatilleke, the Representative of the Sri Lanka Government at the United Nations as follows:
“The Sinhalese oppose the 13th Amendment precisely because there is something of substance in it. That’s precisely why the Tamil democrats must support it. The Tamil ultras (Prabaharan) opposed and still oppose the 13th Amendment as it does not amount to nor is it a fast track to separation, and indeed undercuts the separatist goal. That’s is precisely why the Sinhala centrists, moderates and progressives, and indeed, enlightened Sinhala nationalists should support it.”
Does not this clearly show, that while both parties to the conflict have misgivings about the provisions of the 13th Amendment, Dayan is urging the ‘Sinhala centrists, moderates and progressives and indeed the enlightened Sinhala nationalists’ to support it not because it devolves power to the Provincial Councils but precisely because there is nothing in it that takes away any of the powers the President has over the Provincial Councils as provided for in the Constitution.
“..the Thirteenth Amendment per se which was drafted in bad faith, is no where near what is really needed to make all Sri Lankans to feel they are equal stakeholders. …sadly even after half a century playing with words and doing little by way of worthwhile deeds, has brought the country to the present tragic state. The thinking that complex problems could be wished away, still prevails.”
Let us therefore take a critical look at some of the provisions of the said Amendment and the PCA to see if the devolution of powers they appear to provide for, is a fact or a fiction.
2. Executive Power of the Provincial Council
Each Provincial Council has a Governor appointed at the sole discretion of the President to be the executive head of the provincial administration. But he exercises such power through the Chief Minister and the four Provincial Ministers who are appointed by him. Since the Governor holds office at the pleasure of the President he has to always do what pleases the President. If he does otherwise he can be dismissed. Thus one could see that the Governor is a mere figurehead who is subject to the control and directions of the President. Thereby the provincial councils to which power is said to be devolved do not have any control over the Governor who exercises the powers of the President over the province. Let us now see how the Governor exercises the executive power he is supposed to have.
The 13th Amendment goes on to say that the Governor shall exercise such executive power ‘either directly or through the Ministers of the Board of Ministers, or through officers subordinate to him’. The term ‘officers subordinate to him refers’ to the members of the Provincial Public Service which has been created under the provisions of the Provincial Councils Act. The relevant section provides that a Provincial Public Service shall be established and that the power of appointment, transfer, dismissal and disciplinary control of the officers of this service shall be vested in the Governor. Thus it can be seen the Provincial Council does not even have any power over its public officers who are expected to implement the decisions of the Council. They are obliged to comply with directives of the Governor and shall be loyal to him only.
Let us now look at the powers of the Provincial Ministers through whom the Governor is expected to exercise his executive power. The 13th Amendment provides that the function of the Chief Minister and the Board of Ministers is ‘to aid and advice’ the Provincial Governor in the exercise of his functions. So it is clear that the Ministers of the Province do not have any discretionary power in the administration of the province. It is further provided that the Chief Minister has a duty to communicate to the Governor all decisions taken at the meetings of the Board of Ministers. Therefore the Provincial Ministers cannot do anything behind the back of the Governor without risking having to face the consequences, such as dismissal from office. The Ministers are also obliged to provide whatever information the Governor requires pertaining to the relevant functions of the Ministry which again have been assigned to such Ministry by the Governor himself.
The only instance where the Governor is obliged to act on the advice provided by the Chief Minister in on matters relating to the ceremonial opening of the sessions of the council, the choice of Ministers from among the elected members, proroguing the sessions of the Council and such other formal matters.
3. Legislative Powers
As for legislative powers, the Ninth Schedule to the 13th Amendment sets out three lists of subjects and functions: the Reserved List (RL), the Provincial Council List (PCL) and the Concurrent List (CL). The Reserved List contains powers that are exclusively reserved to the Central Government. Similarly the Provincial Councils can pass statutes on matters specified in PCL and when a statute is so passed the pre 1987 law passed by the Parliament on that subject becomes inoperative in the province, if the statute states in its long title that the statute is inconsistent with such law. However the legislative power of the PC in regard to a subject that is in the PC list is not exclusive. In other words, while the RL contains exclusive powers of the Centre , the PCL contains powers of the PC but are not their exclusive powers. The Constitution only requires that a Parliamentary bill on a subject in the PCL must be referred to all the PCs for the expression of their views, if all agree the bill can be passed with a simple majority. If one or more of the PCs do not agree, it can be passed with a simple majority but is only applicable to those PCs that agreed. But if such bill is passed by a two third majority, it is applicable to all PCs, whether they agreed to it or not.
With regard to the subjects in the CL both the Parliament and the PCs can legislate on them but only in consultation with each other. Here the word used is in ‘consultation with’ and not with the ‘concurrence of’. In the event of inconsistency the Parliamentary law will prevail.
It needs to be noted that the RL makes provisions for the Parliament to set out the national policy on all subjects and functions. This is a provision that has been consistently abused by successive governments. It provides that the Parliament can lay down National Policy by a simple majority which means the PCs cannot pass any legislation that contravenes the national policy on the subject. It means that the National Policy on matters set out in the PCL and the CL would be the framework to which the laws of the PCs should conform to. For instance, provision of road transport services is in the PL. In terms of this Mr. Mahinda Samarasinghe, the current Minister of Disaster Management and Human Rights who was then the Minister of Transport in the first Western Provincial Council, brought in a statute to run a transport service in the Western Province and had even purchased three buses from China and inaugurated the transport service. Within weeks of the service being inaugurated, the Central Government declared that running such a service was in conflict with the National Policy on Transport and the statute was declared invalid and the Minister was removed from office by the then President. In other words, even though the 13th Amendment stipulates that National Policy could only be laid down by an act of Parliament, successive government have been laying down national policy through cabinet directives and Ministry circulars.
In 1995 a Committee called the Gunawardena Committee was appointed to study the operation of the Provincial Councils and its report speaks of Ministries of the Central Government interpreting National Policy in operational terms and had been extending their authority over the Provincial Ministries by administrative action on subjects that are in the PCL. A case in point is that the while the relevant provisions of the Provincial Councils Act confers various powers to the Governor over the members of the Provincial Public Service, the Ministry of Public Administration continues to issue directives and circulars on matters relating to the members of the Provincial Public Service.
As regards the statutes that the PCs can pass with regard to the subjects in the PCL, in 1988 when the PCs started functioning it was found that there were about 300 laws already in force pertaining to subjects in the PCL and the CL. All these referred to the functions and powers of the Ministers and officials in the Central Government. The PCs had to make the necessary changes in these laws to transfer such powers and functions to the Ministers and officials of the Provincial Councils. Because the PCs do not have a legal draftsman or the necessary capacity to draft its laws, many of the earlier laws still remain in force and the Centre still exercises its powers and functions of these subjects which should now be exercised by the PCs. To rectify this matter the Provincial Councils (Consequential Provisions) Act No. 12 of 1989 was passed providing that all reference to officials under the Central Government in subjects that are now in the PCL should be construed as reference to the corresponding provincial authority. Yet there are about 200 laws in respect of matters in the CL which are not covered by this Act. This is because the PCs still do not have the resources needed to go into these enactments and make the necessary changes. Consequently they are unable to still exercise executive power over these subjects. The Centre continues to exercise authority in such matters.
4. Financial Control
Besides executive and legislative power, a governing body needs finances to carry on its policies and administration. The 13th Amendment provides for a Finance Commission to be established with the sole function of recommending to the Central Government the amount of funds that should be allocated to meet the requirements of the Provincial Council. The members of this Commission are appointed by the President. They shall be the Governor of the Central Bank, the Secretary to the Treasury and three other members to represent each of the three major communities of Sri Lanka. However, the President is not obliged to comply with the recommendation of this Commission and can on his own determine how much should be provided for each Province. All monies allocated to each Province shall be deposited in a Provincial Fund into which all revenue collected from the Province by way of taxes etc and all loans provided to the province from the Consolidated Fund shall be deposited. The Provincial Council however cannot withdraw any monies from the Provincial Fund without the sanction of the Governor. Besides, the Provincial Council cannot pass any statute which would involve expenditure from the Provincial Fund without the recommendation of the Governor.. The Provincial Council cannot also pass any statute imposing or abolishing any taxes without the consent of the Governor. The Governor is obliged to make rules regulating the use of funds of the Provincial Council. Even the Chief Minister cannot authorize the withdrawal of funds unless a Provincial Statute has been passed authorizing the used of such sum during a given financial year. Every statute passed by a Provincial Council shall become operative only after the Governor has given his assent.
Thus it is patently clear that the Provincial Council has no discretionary power on matters relating to the finances of the Council. Here again the concept of devolution of power is nullified by the restrictions imposed on expenditure.
5. Other Powers of the President over the Provincial Councils
From time to time the President can give directions to any Provincial Council. If it fails to comply with any such a directive, the President can hold that the provincial administration is not being carried out according to the Constitution and make a declaration that the Parliament is taking over the functions of that Council and the President can assume the functions of the Provincial Ministers by issuing a proclamation as provided for.
So long as the Chief Minister is from the President’s political party and carries out the plans of the President and his party for the Province, there will be absolute co-operation between the Centre and the Province. In such a situation the Chief Minister and the Board of Ministers will not have any qualms over the devolved powers they enjoy without any interference from the Governor of the Province. Problems will arise only when the Chief Minister of the Province is not from the party of the President and he has his own plans for the development of the Province. This is exactly what is happening in the Eastern Provincial Council where the Chief Minister of the Province and the Minister of Health who is the spokesman of the PC, are reported to have publicly expressed displeasure at the Governor of the Province not allowing them â€œeven to appoint a labourer of the Minister’s choice ” to the provincial hospital. It is only in such a situation that the Provincial Council will realize that they do not exercise any discretionary power to either by-pass or ignore directions of the Governor who is, as said before, is the representative of the President in the Province.
6. Miscellaneous matters
What we have seen all this while are some of the main provisions that nullify the belief that the implementation of the 13th Amendment would devolve power to the Provincial Councils and pave the way for a separate state. They fall far short of the aspirations of the Tamils. The problems that led to the war will continue even after this amendment is implemented either in full or in part. Two other matters have often been highlighted in this connection, that is the question of the establishment of a Provincial Police Force and the devolution of powers over land. Even if these powers are granted in full, the other provisions relating to the Governor’s powers will nullify any devolution in these matters. Besides, the centre can always declare its national policy on any of these matters and take away with the left hand what it gives with the right.
In short, the executive and legislative powers of the Provincial Council continues to be with the President and exercised by the Governor whom he appoints while the Governor exercises such powers with the assistance and advice of the Chief Minister, the members of the Board of Ministers and through the members of the Provincial Public Service. The Chief Minister and the members of the Board of Ministers just cannot defy the Governors authority.
The 13th Amendment was adopted by the Parliament with an overwhelming majority â€“ above the constitutionally mandated majority after debate, and is very much part of our Constitution. The President is obliged under his oath of office to perform his functions in accordance with the Constitution. The defeat of the LTTE has provided President Rajapakse a golden opportunity to settle the problems of the Tamils once and for all. His current popularity among the Sinhalese could make them accept whatever solution he puts forward to the problem saying that it is the need of the hour to bring about lasting peace and prosperity to the country. He could achieve this expectation only by putting forward a solution that would ensure a devolution of powers to the Provinces which would in fact be a true devolution and not a fictitious one. One that leaves no room for any community to feel discriminated or treated as second class citizens. He now has a historic duty to rise to the occasion, act according to the need of the hour and become a statesman. If he misses this opportunity, the problems of the Tamil will remain a festering wound in the body politic of this country and would necessitate the maintenance of an oversized military force which the country can hardly afford, due to fears of the defeated forces rising from their graves, persisting.
This cost will eventually become unbearable and be a stumbling block to the forward march of the nation, as it had been all these years.