Implementing the 13th Amendment in full

by S. Thavarajah

(August 21, London, Sri Lanka Guardian) Recently concluded SARRC summit has brought to an end the speculation and the much awaited outcome of the one to one meeting between President Mahinda Rajapaksa and Indian Prime Minister Dr. Manmohan Singh, particularly with regard to the Government’s commitment to finding a solution to the ethnic crisis. It was reported that President Mahinda Rajapaksa has assured the Indian PM that the 13th amendment to the constitution would be implemented in full.

Although it was reported that the Indian PM has requested the Government to go further, devolving more powers to the Provinces as a final solution to the issue, a firm commitment and confirmation of this request from the Government side is awaited.

However, in view of the Presidents pledge to implement the 13th amendment in full, it is imperative to take note of the impediments that stood in the way of its full implementation and the actions necessary to ensure that the Provinces enjoy the full powers as envisaged in the 13th amendment meaningfully.

There is a school of thought that no meaningful devolution is possible under a restrictive unitary constitution, powerful executive presidency and a supreme parliament with overriding powers. Contrary to that opinion is the argument that devolution would have been more meaningful within the ambit of the 13th Amendment, had the Provincial Councils been permitted to function with a clear separation of powers and functions between the centre and the provinces. Proponents of this view have emerged stronger after the APRC’s recommendation to the President to implement the 13th amendment in full as an interim measure.

Since then, much has been said about implementing the 13th amendment in full from political columnists, but hardly any expression as to what those impediments are and what should be done to implement it comprehensively. Some say give police and land powers to provinces. Does that mean if police and land powers are given to the provinces that is suffice to conclude that the 13th amendment is implemented in full? In fact, land is a provincial subject, but the hurdle is in its utilization and disposition.

We intend, in this article, to identify the flaws, lapses and obstacles that made the 13th amendment a debacle and its creation the provincial council system, an ineffective entity and to recommend the ways and means to eliminate those constraints through administrative, executive and legislative actions.

Tamil as an official Language

The first amendment in the 13th amendment is to article 18 of the constitution, asserting Tamil also as an official language subject to that parliament shall by law provide for the implementation of this provision. Up to date parliament has not enacted the necessary laws. Even in places like Jaffna and Batticaloa, where a very large concentration of Tamil speaking population lives, still the complaints at police stations are recorded in Sinhala.

Most of the staff of the provincial administration of the Northern and Eastern provinces undergoes difficulties in discharging their duties as all the briefings, meetings, workshops and important correspondences are carried out in Sinhala.

Misuse of Constitutional Inadequacies

In-built flaws and lack of constitutional clarity in the amendment has always been interpreted to the best advantage of the centre. Number of entries in the provincial list could be cited to demonstrate this disparity between what is provided in the text and how it is interpreted.
Roads and bridges and ferries thereon within the province, other than national highways and bridges and ferries on national highways, are subject matters of the provincial list. In the reserved list it is stated that highways declared by or under law made by Parliament to be national highways.

A close scrutiny of these two clauses would reveal that the authority to decide what a national highways rests with the centre. In practice the centre has used it to its advantage; all the A and B class roads have been declared as national highways. Thus, chunk of the tarred roads are today the subject matter of the centre.

Here what is lacking in the 13th amendment is its failure to define what a national highway is, instead of leaving it to the centre to decide it. Had it been defined that national high ways are roads linking the provincial capitals, the equation would have been different. Chief Minister Sivanesan Chandrakanthan needs not to go to Minister Rajitha Seniveratna with a list of roads to be repaired in the East.

Another example is education and education facilities. Provision of facilities for all state schools other than specified schools is the subject matter of the provincial list. Specified schools are defined as national schools, special schools for service personnel and schools for specified development schemes. Here the amendment lacks in defining what a national school is. Making use of this loop-hole many schools were designated as national schools at the whim of the centre.
It is the same dilemma for hospitals. The establishment and maintenance of public hospitals, rural hospitals, maternity homes and dispensaries other than teaching hospitals and hospitals established for special purposes are the subject matter of the provinces. However, the centre has taken over the base hospitals which were under provinces, through Cabinet decisions categorizing them as national hospitals. There is no mention about national hospitals other than teaching hospitals in the 13th amendment.

The provision of facility to all the hospitals referred to above except procurement of drugs is with the provinces. This implies that appointing authority for all categories of medical and paramedical staff is the provincial administration. But, the present system is that the posting of officers to these institutions are done by the Health Ministry, which undermines the authority of provincial administration.

Ports declared by or under law made by parliament or existing law to be major ports including their delimitation, are the subject matter of the reserved list. Although it was evident that only major ports were envisaged to come under the purview of the centre, as the subject of minor ports has not been listed in the other lists, the provinces were barred from exercising powers in respect of even jetties.

Agriculture, including, agricultural extension, promotion and education for provincial purposes and agricultural services is a provincial subject, but the centre still retains the Agriculture Education for provincial purpose and Agriculture Services.

Water Supply and Drainage has not been listed in any of the lists. Using the cover that any subject not listed in list I & III would be a subject of the centre, the centre retains it as a reserved subject.

Centralisation of Provincial Subject

Land (rights in or over land, land tenure transfer and alienation of land, land use, land settlement and land improvement) is a provincial subject. The modalities of its usage are detailed in Appendix III. Its disposition is subject to President’s assent (Article 33(d)) and written law governing this. Making use of the central superiority, former lands Minister Paul Perera has centralised the subject and it remains to be same to date.

Concurrent List

Excise of exclusive power by the central Government with regard to most subjects listed in the concurrence list is another major impediment to the spirit of devolution embodied in the amendment. The two decades of experience is that the centre has always used it as its own preserve.

According to the 13th amendment the legislative and executive powers in respect of subject matters enumerated in the concurrent list are to be shared between the centre and the provinces, after such consultation with the other one. The centre needs to consult with all the provinces and vice versa, but in practice, the centre has never consulted the provinces in dealing with the concurrent subjects.

The devolution experience since the induction of 13th amendment is that majority of the provincial councils in the south were controlled by the political party in power at the centre and the North and East were run by the Governor, an appointee of the president. Hence the provincial authorities were gutless to question the diktats of the centre.

For example “Schools for training of Auxiliary Medical Personnel” is a subject matter of the concurrence list. All the Nurses Training Schools are under the centre, not a single one under the provinces.

Subject matters such as Higher Education, Electricity, Tourism, Environment and Trade and Commerce (except foreign Trade) are itemised in the concurrence list, but the provinces are precluded from enjoying these powers and functions.

National Policy

National policy on all subjects is a subject matter of the Reserved List. Under the guise of national policy the centre has wide ranging power to intrude into the powers and functions of the provincial subjects. One such example is the Supreme Court ruling on the Agrarian Services Act No.4 of 1991, in which case the Supreme Court has permitted the law to be passed in Parliament as the clauses in the act falls within the purview of the national policy. Another example is the National Transport Commission act No. 37 of 1991, which clearly infringe into the provincial powers.

The existence of centre ministries such as Nation Building (formerly ministry of Rehabilitation and Reconstruction), Social Services and Social Welfare, Women and Children, Indigenous Medicine, Disaster Relief and Agriculture has no justification, except under the wrap of Concurrent List and National Policy. Most of these Centre Ministries have infringed into the powers and functions of the provincial administration.

Cadre Control and the Role of Management Service Department (MSD)

The Provincial Councils are unable to design their own development programs as a result of the rigid control by the centre on resource allocation criteria, particularly in respect of cadre creation. The MSD of the General Treasury has been very slow in responding to the needs of Provincial Councils. Many examples can be cited in this respect too.

Most of the peripheral institutions in the North are still functioning with the minimum cadre. The revisions are not made for more than two decades and the call for revision has not been met with positive response. The worst affected are the Health sector and Local Authorities.

In some instances, although the subject and functions have been transferred to provinces, the centre retains the cadre, thus the province can do hardly any activities with regard to that subject. Example is the Adoptive Research function of Agriculture.

The provincial councils are not permitted to induct the services of experts, although the Central Government Agencies are permitted to do so with Cabinet approval.

Financial Devolution

With limited tax raising power, most of the provinces are dependant of central grant. The devolution would be meaningless, if adequate finance is not made available to the provinces. For example the allocation of funds for capital expenditure in the budget for the year 2008, is rupees 369 billion. Out of which, the allocation for capital expenditure for all nine provinces adds up to 21 billion. In other words, the total capital expenditure allocated to all the provinces is about 5.7% of the total capital expenditure. Never the capital expenditure of provinces exceeded more than 7.5% of the total annual capital expenditure. How can the devolution be meaningful, if the centre retains larger share of the development activities.

The Finance Commission is a mere appendage of the Centre. They have no authority to go beyond recommendation, which is often not taken seriously by the Finance Secretary, although he himself is a member of the commission.

Foreign funded Projects

Foreign funded mega development projects are carried out by the centre, even if the subject matter falls within the ambit of the provincial list.

Borrowing

Borrowing of money to the extent permitted by or under any law made by Parliament is a subject of the Provincial list, but Provincial Councils are precluded from domestic / international borrowings.

Administrative Circulars

Administrative circulars of Ministry of Public Administration and Ministry of Finance often undermine devolution spirit and indirectly enforce centre authority into the provincial functions.

Split Administration

Most of the local level activities of the Divisional Secretaries are the legitimate functions of the local authorities. The Divisional Secretaries Act no. 58 of 1992 has transferred these functions to the Divisional Secretaries. This act has made the devolution a mockery. Similarly, most subjects that are connected to day-to-day affairs of the people coming under the purview of the provincial councils are dealt by Government Agent or Kachcheri.

Police Powers

Public order and the police powers are clearly defined as subject matter of the provinces in the 13th amendment. Since there is a war going on in the country, the time may not be apt to speak about the police powers to the provinces. However, one day this subject matter needs to be handed over to the provinces to the extent provided in the amendment.

Action to be taken

To cap it up, the centre has not only used its muscle to infringe and intrude into the powers and functions of the provincial subjects but has also taken virtual control of the concurrence list. To implement the 13th amendment in full, all the hurdles that are spelt out above need to be removed. Most of these constrains were caused by the actions and inactions of the centre.

The unwillingness at the centre, particularly the bureaucracy and politicians, to part with the powers to the periphery is the main obstacle that has to be dealt with, in the first instance.

Unfolding this hurdle is not an easy task, but it needs to be dealt with. The commitment and support of these personal is essential to make the 13th amendment fully functional. Changing the devolution hostile centre is a pre-requisite in this endeavour.

An expert committee need to be appointed to study the infringements of centre Ministries in the ambit and functions of the Provincial subjects and the centralisation of concurrent subjects; and to find out the measures necessary to remedy it, including the necessary legislative enactments. The recommendation of the committee needs to be enforced without delay.

The parliament should pave the way, by making the necessary laws, for the implementation of the Tamil as the official language.

Adequate funds need to be provided to provinces for the effective function of the provincial councils.

If actions are taken to rejuvenate the provincial councils by removing the impediments detailed above, then we can be satisfied that we are in the right direction to implement the 13th amendment in full.

Since the 13th amendment were not attempted to be implemented comprehensively, in the process of its full implementation, unanticipated constrains, conflicts and operational difficulties may emerge. Hence, addressing the question of removing the impediments in the implementation of the 13th amendment should be seen as a process, rather than a onetime event.
- Sri Lanka Guardian