Implementing the 13th Amendment

These problems can be solved to some extent by the Centre preparing model drafts for the Councils. But most importantly the Centre must exercise self restraint and Central ministers and officials must be willing to hand over powers.

by Nirmala Chandrahasan

(July 01, Colombo, Sri Lanka Guardian) The on-going debate as to whether it should be 13th Amendment ,13 Amendment plus or no 13th Amendment, seems misplaced considering that it has been a part of the Constitution since 1987 and that under the 13th Amendment together with the Provincial Councils Act no 42 of 1987, Provincial Councils have been established since 1988 and are operating in all the provinces of Sri Lanka bar the northern province. In terms of the constitutional provisions the northern PC, too, will have to be established shortly as the armed conflict in that region has been concluded two years ago and there is no reason to delay its establishment.

The only question which has not been debated is why there has been no genuine devolution of power during this period and how best to implement the constitutional provisions and make the Councils more effective as providers of the public services they are supposed to deliver and not mere white elephants. It is generally accepted that devolution of powers is a concept which allows for the people to have a greater say in matters affecting their localities, rather than allow all power to be in the hands of a centralized bureaucracy. Furthermore it is designed not just for a particular segment of the population but for all the people of the country.

Thus, far the Councils have not functioned successfully because their law making capacity, has not been utilized, their administrative competence is not provided for, and they lack financial viability. Let us first look at the law making capacity. Schedule 9 of the Constitution sets out three lists, a Provincial List, a Reserved List, and a Concurrent List. Under Article 154 G (1) of the Constitution, a Provincial Council has the power to make statutes applicable to the province for which it is constituted, on any matters set out in list 1. The list includes, planning and implementation of provincial economic plans, local government, co-operatives, health, rural development, land, regulation of road passenger transport services, agriculture etc. Police and public order, land settlement and education are also devolved subjects and are more fully described in three appendices to the List. On the face of it this seems a very comprehensive list. Parliament can also legislate in respect of subjects in the state list either by a simple majority where, upon reference to it of such Bill, every provincial council agrees and by a two-third majority where one or more councils do not agree to the passing of the Bill.

The Reserved List of subjects which are reserved for the Centre includes defence, foreign affairs ,ports and harbours, national transport etc. The reserved list in the Sri Lankan Constitution begins with the rubric, "National policy on all subjects and functions". A reasonable interpretation of this provision would be that Parliament can lay down national policy relating to a matter on the provincial list and the Provincial Council should adhere to this in making statutes. However, it has been interpreted as permitting the Centre to intervene and take over matters lying within the Provincial List. To take an example under item 8 of the Provincial Council list, the regulation and provision of road transport services within the province is a provincial subject. Accordingly the first Western Province Provincial Council passed a statute to run a transport system and the minister of transport in the Council purchased three buses from China. Within a week of the inauguration of the service the government declared that running such a service was in conflict with national policy and the statute was declared invalid. In many more instances the Centre has taken over hospitals and schools coming under the jurisdiction of the province by declaring them as national schools or hospitals. Furthermore without even following the procedure set out in the Constitution whereby Parliament can legislate in respect of provincial subjects, successive governments have been taking over subjects and declaring national policy by Cabinet decisions and Ministry Circulars.

The Constitution provides that where a provincial council makes a statute a previous law on the same subject which is inconsistent with it, becomes inoperative and is suspended. In 1988 when the provincial Councils started functioning, it was found that there were about 300 laws in force pertaining to subjects in the Provincial and Concurrent list. All these referred to the functions and powers of Ministers in the Central Government. The provincial councils had to make the necessary changes to these laws to transfer such powers and functions to the ministers and officials of the provincial council. However, the practical difficulty in making such statutes arose from the fact that the Councils do not have legal draftsmen and the necessary capacity to draft statutes. For this reason many of the earlier laws remain in force and the Centre still exercises its powers and functions over matters which should now be transferred. In 1989, the Provincial Councils (Consequential Provisions) Act was passed providing that all references to officials under the Central government in subjects that are now in the Provincial Council List should be construed as reference to corresponding provincial authorities. However, this Act has been interpreted to mean that unless a provincial statute is made, the Central authorities can also continue to exercise power if they so wish. On this basis, for example the Centre took over the Ratnapura and Kegalle Base hospitals administered by the Sabaragamuva Provincial Council. Similarly, in respect of the power of supervision over local authorities the central minister can also continue to exercise powers. In this way, there is a continual diminishing of the powers conferred on the provincial councils. Furthermore, the Provincial Councils (Consequential Provisions) Act does not cover matters falling within the Concurrent List, hence there are still about 200 laws still covering these areas and as stated earlier the Councils do not have the necessary capacity to draft statutes to replace these laws.

These problems can be solved to some extent by the Centre preparing model drafts for the Councils. But most importantly the Centre must exercise self restraint and Central ministers and officials must be willing to hand over powers. Where the Provincial Council belongs to the same political party as the Centre there is greater cooperation but where the council is under the control of a party in the opposition the Centre makes use of the rubric, "National Policy on all functions" as well as narrow interpretations of the Provincial Councils (Consequential Provisions) Act, to poach on subjects within the Provincial list. For the Provincial Council system to work effectively distribution of powers must be made explicit and devoid of ambiguity. Where National Policy or National Standards need to be laid down it should be done through a participatory process with the involvement of the provinces culminating in framework legislation passed by Parliament. Provinces would be required to conform to such framework legislation when passing statutes. This was also the recommendation of the Majority Report of the Experts Committee in 2006.

The executive power of the Province extends to the matters with respect to which it has power to make statutes. Article 154C read with 154 F, states that this power shall be exercised by the Governor with the aid and advice of the Chief Minister and Board of ministers. It is mandatory that the Governor in the exercise of his functions acts in accordance with such advice, except in those instances where he is required to exercise his discretion. Hence, we can see that the Governor’s role is that of a constitutional head in a Westminster style constitution and is similar to the position of the Governor in an Indian State. However, this has to be made clear and constitutional conventions have to be observed. The matters in which the Governor can use his discretion are very few and would arise in instances where there is no clear majority and he has to appoint the chief minister or in cases of dissolution of the Council. He also exercises discretion in respect of a statute made by the Council and presented for his assent, as he can either give his assent as is the usual course, or send it back for reconsideration, with or without such amendments as he may suggest. If after reconsideration the Council still passes the statute without any amendment, the Governor has the discretion to give his assent or reserve it for reference by the President to the Supreme Court, for a determination as to whether it is inconsistent with the Constitution, within the stipulated time of one month. In some instances Governors have used this provision to delay the passing of financial statutes even beyond the time limit stipulated.