Implementation of the 13th Amendment

by Wimalasiri De Mel

(October 15, Colombo, Sri Lanka Guardian) The All Party Representative Committee (APRC) recommended to the President in January 2008 that the 13th Amendment to the Constitution be fully implemented pending agreement in the All Party Conference (APC) on the contours of a political solution to Sri Lanka’s ethnic crisis.

A cabinet committee was subsequently appointed to oversee the full implementation of the 13th Amendment. Significantly, Chairman of the APRC, Comrade Tissa Vitharana, and Minister of Constitutional Affairs, Comrade D.E.W. Gunasekera, were not members of that committee.

The committee does not function anymore and no meaningful steps have been taken to implement the13th Amendment much to the disappointment of those who believe in a political solution.

In the circumstances, the Lanka Sama Samaja Party demands that meaningful steps be taken to fully implement the 13th Amendment and that the following steps be taken immediately:

1. Extend the Provincial Councils (Consequential Provisions) Act No. 12 of 1989 to the Concurrent List.

Under Article 154C of the Constitution, the executive power of a Provincial Council extends to the matters in respect of which they have the power to make statutes, namely matters set out in the Provincial List as well as the Concurrent List.

When the provincial councils were set up, it was found that provincial authorities could not exercise executive powers under existing law as they referred to ministers and public officers of the centre. For provincial authorities to exercise such powers, statutes corresponding to more than 300 existing laws had to be made.

The councils were not geared to do so, and on a proposal initiated by Comrade Bernard Soysa who was a member of the Western Provincial Council, the councils requested the centre to pass a law which would provide that any such reference would be deemed to be references to the relevant provincial authorities.

The Provincial Councils (Consequential Provisions) Act No. 12 of 1989 was accordingly enacted but the Act applies only to matters set out in the Provincial List. Provincial Councils are thus unable to exercise powers in relation to matters set out in the Concurrent List without enacting statutes.

The LSSP proposes that the scope of the Provincial Councils (Consequential Provisions) be extended to matters set out in the Concurrent List. Such an amendment requires only a simple majority in parliament.

2. Government should stop exercising executive power in relation to devolved subjects.

Even in respect of subjects and functions under the Provincial Council List, the central government has also been exercising executive powers. The takeover of provincial hospitals is an example.

Under the 13th Amendment, the central government would be totally excluded from exercising executive powers in respect of a provincial subject, only if a provincial statute is enacted.

The LSSP proposes that the central government take a policy decision not to exercise executive power in relation to any devolved subjects.

3. The central government should hand over subjects such as agrarian services which were illegally taken over, back to provincial councils.

The LSSP demands that such subjects and functions be immediately handed back to provincial councils.

4. Appropriate action should be taken to ensure that police powers are devolved to provinces in terms of the 13th Amendment to the Constitution, the Police Commissions Act No. 1 of 1990 and the 17th Amendment to the Constitution.

5. Powers relating to land should be devolved in terms of the 13th Amendment and a national land policy should be formulated through a participatory process involving provincial councils.

6. The exercise of powers by the provinces has been seriously limited due to the inadequacy of funds. This situation must be remedied. The Provincial Councils Act empowers a province to raise loans on guarantees granted by the central minister of finance. The centre should facilitate action in this regard. Section 22 of the Act also stipulates that foreign aid negotiated for a project or scheme in a province shall be allocated by the Sri Lanka Government for such project or scheme. The centre should hereinafter route all finances in respect of special projects undertaken by the centre in the provinces, if they are or, subjects under the purview of the provinces, through the respective provincial administrations.

7. The provincial public service which supports the activities of the provincial administration is weak and needs to be immediately strengthened. There should also be a clear demarcation of duties between those serving the province and the centre, but with effective coordination. This should also be done without increase in available staff, but through proper redistribution of human resources. - Sri Lanka Guardian