By Austin Fernando –

Austin Fernando

Recently our former colleague President’s Secretary Lalith Weeratunga has twittered that (a) administratively the 13^th Amendment is a white elephant; (b) it must be viewed from the citizens’ angle (c) devolution should be to the lowest possible level; and, (d)  at sub-national level Provincial Councils (PCs) have not served the purpose. He is not alone in saying so.

A President’s Secretary may declare so to initiate a dialogue; or to ‘drop’ the PCs, and motivate people to meet midway to devolve power to the districts which are bureaucratically centre-aligned or to the Local Authority level. Whatever the preference is, it is clear the intention is to reduce the size of the “devolved unit”. What the Tamil National Alliance (TNA) demands is to increase the size of this unit by merging two provinces. It proves that there is a magic in the size!

Secretary Weeratunga is an experienced public officer. Therefore, I do not ignore his analysis as isolated personal impression, because of his intimate proximity to political powers. Unfortunately, he cannot as a bureaucrat satisfy the genuine and needy political requirements due to government’s uncertainty on the 13^th Amendment.

‘White-Elephantness’ of PCs

Let me case study. Minister Keheliya Rambukwella speaks of amending the 13^th Amendment and states that PCs are white elephants. I first met him when he was on a white elephant some years back! Premier DM Jayaratne indirectly proposes slashing powers. Minister Siripala de Silva who heads the Parliament Select Committee (PSC) on the 13^th Amendment to recommend propositions to amend the 13^th Amendment wants the 13^th Amendment scrapped even before the Committee’s first sitting, exposing the intentions of the 19/31 member pro-government PSC. Is it his personal impression or government’s? No wonder the Opposition avoids participation, only to say Aye to the government. Two other ministers in the PSC want the 13^th Amendment erased.  A group led by Marxists extremely support devolution. The President has told the Editors that PCs are not total failures and had certain positives, softening Secretary Weeratunga’s and Minister Rambukwella’s thinking. Perhaps this type of baffling comments may be planned strategy of the government. These conflicting views astound us; provoke suspicion whether the government is in an elephantine policy mess.

The ‘white-elephantness’ (apologies for coining invention!) is discussed widely at present caused by the logical suspicion that the TNA will win the Northern PC. Therefore, we observe pro-government spokespersons highlighting the PCs’ white-elephantness, though the active pro-government PC political personalities were dumb until the recent effort to pass resolutions demanding reduction of the powers demanded by the TNA was launched.  It may be to facilitate a future court proceeding in weeks to prove that majority of PCs wish that the controversial powers be erased form the Constitution. Majoritarianism will win the day and this is the grievance of the minorities and hence will delay reconciliation too. Countering majoritarianism can take different shapes at different environments and phases. Keep fingers crossed.

The apathy is that the critics of PCs from Colombo calling PCs in the periphery ‘white elephants’ suffer from serious cataract, not seeing 60+ Cabinet Ministers, expending billions on showpieces, bungling duties with hundreds of advisors around, non-functional Senior Ministers; and, alleged corruption, waste, mismanagement, inefficiency, ineffectiveness, uneconomic performance, rights violations by central Saddantha (Mammoth) white elephants (SMWs).

I have listened to Secretary Weeratunga’s management lectures on You-Tube. I sometimes feel from their contents that he would have been shocked by SMW’s weaknesses. It is unclear why he or other political authorities did not criticize the monopolistic concentration of economic, social, political power in a few hands.  Was it due to invisibility or them overlooking reality to please the government leadership or the greed for centralized administration?

One cannot claim the PCs are devoid of inefficiency, ineffectiveness, uneconomical behavior, waste, corruption etc.  I do not for a moment subscribe that just because these weaknesses are more prominently displayed at the centre, it is correct to stand for PCs. Wherever it is weakness is weakness.    

Devolution and Decentralization

Devolution and decentralization are two systems. PCs devolve central powers to the periphery. With devolution service delivery takes place at the most appropriate levels. (Principle of Subsidiarity) Decentralized decisions are made on central directives.

If power could be devolved to the grassroots as expected by Secretary Weeratunga, it is excellent. But, will not the existing legal structure create problems? When the limited development potential at village level is considered to devolve power to 25,000 villages, issues such as the expected development inputs and outputs; applicable constitutional approach; integration methodology for Village Groups, Village-District, Village-Provinces, Village- Centre relationships; administrative structures; supervision mechanisms; cost-benefit ratios; means to balance the imbalances (i.e. political, caste, religious, racial); public participation and accountability etc will arise. His thinking will attract more criticism when village level power sharing is tabled to solve the complex national crisis. His simplifying the national crisis must be an infection caught from the present day pro-government political authorities.

Professionals believe that successful devolution revolves mainly on the provision of space, power and authority to the devolved unit in statute making, financial and personnel management. I am reminded of Minister GL Peiris saying at an Indo- Sri Lanka Working Group twenty years back that clarity of constitutionally devolved powers causes successful devolution. Thus, centralization of devolved power blunts devolution resulting in PCs ending as white elephants.

Courts and Devolution

Courts have ruled on constitutional clarity. During President Chandrika Kumaratunga’s tenure the interpretation of Governor’s powers by Chief Justice GPS de Silva in the Supreme Court Appeal 41 and 42/96 case highlighted how the centre violated the Constitution. However, does not the recent statement by the Sinhalese pro-government Eastern PC Minister that the Eastern Governor does not listen even to the President show that irrespective of judicial decisions the centre has devastated PC performance?

The judgment in combined cases on the Land Ownership Bill  to amend the Land Development Ordinance and Land Grants (Special Provisions) Act tabled by Minister Rajitha Senaratne (irrespective of hard-nosed views he holds on devolution at present) numbered S.D 26/2003, S.D. 27/2003 etc given by Justices Shirani Bandaranayaka, Asoka de Silva (now an Advisor to the President) and Nihal Jayasinghe (later a High Commissioner appointed by President Mahinda Rajapaksa) showed how the UNP attempted to negate devolution by bringing forth a Bill “inconsistent with the 13^th Amendment.”

The determinations on Divi Neguma and Town and Country Planning (Amendment) draft Bills are clear examples of the incumbent government’s attempts to blunt devolution. The importance of receiving approvals from PCs in terms of Article 154G (3) was the matter of concern for the Supreme Court. No wonder the incumbent government wants to introduce the consent of majority of the PCs to replace this Article. By doing so what could not have been achieved unconstitutionally can be achieved constitutionally!

A recent case (4/2011) decided by Chief Justice Shirani Bandaranayaka, Justices PA Ratnayake and Sathya Hettige declared “Constitutional provisions pertaining to the subject of land are quite clear and had been considered and interpreted earlier by the Supreme Court. When these decisions are examined it is clearly seen that there cannot be any ambiguity with regard to the provisions in question.” Again, if it is accepted it is no wonder there is pressure to scrap devolution of state land powers from the 13^th Amendment to blunt it. It is not only blunting but paving way for further action against devolution. Who should be the accused- PCs or Centre?

Therefore, it is clear that the trend to make PCs white elephants is not inherently limited to a political party or leadership or time frame.

There are humorous episodes also in these instances. Finding some who now yell that PCs need not have land powers were the very persons who challenged Minister Rajitha Senaratne, demanding retention of land powers with the PCs, creates humor. When Ministers Susil Premjayanth and Felix Perera who supported Chief Minister Chandrika Kumaratunga demanding police powers oppose devolution of police powers now; is not it humorous?

These days we find PCs resolving rejection of powers constitutionally devolved to them. For the first time I hear of politicians anywhere in the world wishing to shed powers! The southern PCs waited all this time to realize the wrong of the powers vested in them. It reminds me of the Sinhalese Baila song “ලංකාවේ රජකම මට ගන්න කියනවා; මම එපා කියනවා” (I am being offered the Lankan throne, and I refuse!). In that context current political behavior is truly a Baila!

When I was the Secretary Ministry of PCs, I remember how Minister Mahinda Samarasinghe as the Western Province Transport Minister complained of the injustices caused by the centre against the PC Transport Authority. If he remembers this, he could give evidence upon his conscience on who make white elephants off PCs. The tragedy is that politician’s conscience dies to suit times!

Usurpation of devolved powers by the centre

Let us look at other issues. Reversion of Grama Niladharis attached to PCs to the Ministry of Home Affairs during President DB Wijetunga’s tenure highlighted the centralizing attitudes. Minister Dallas Alahapperuma (then a PC Member) may remember how the then Presidential Secretariat slashed the first PC Policy Statement of Chief Minister Amarasiri Dodangoda. The centre was unprepared to share even such simple power. Further, the two major southern political parties have converted PC hospitals to Teaching hospitals. Conversion of Ratnapura, Polonnaruwa and Badulla Hospitals from PC hospitals to Teaching Hospitals was to please the Ministers of Health at the centre. Similarly, PC schools have been converted to National Schools. Close upon General Elections, conversion of PC schools to National Schools intensified attracting votes. Who has negated devolution?

Similarly, the Treasury delayed releasing funds to PCs while prioritizing the central political and administrative requirements. It is done even now. The Finance Commission is sympathetic to central requirements. PCs have to toil hard to collect court fines. Everyone knows what happened to the turnover tax that enhanced PC revenue. Is it fair to weaken the PCs financially and call them white elephants? Who is responsible if PCs became white elephants under these circumstances?

However, the PCs and Chief Ministers who dance to the tune of the centre should share some responsibility for self-weakening.  The voluntary contribution by the North Central and Western PCs in ceasing the implementation of the PC Land Statutes is a good example. Among them there was the rare Chief Minister who sacrificed his position for standing for devolved land powers. I suspect that even the Attorney General’s Department would have indirectly supported slashing PC land powers since they too are emotionally attached to central needs.

Like the politicians even public officials have organized their responses to devolution. The best example is observed in governmental stances and public officer responses on devolving land powers. The comprehensive circular by Lands Secretary AA Wijetunga on the guidance of Minister Gamini Dissanayake showed the positive commitment of politicians and administrators.

No other subject is blessed with a constitutional mechanism to formulate national policy.  By Annexure 2 of the 13^th Amendment land national policy formulation is entrusted to the centre through the National Land Commission.  The draft Bill to legalize this Commission lapsed in the Parliament with the dissolution due to low commitment of the UNP.  Thereafter, public officials of all governments alternatively filled in gaps. The preparation of the National Policy on State Lands was undertaken by the Secretary to the President, Secretary Lands, Secretary Home Affairs, Land Commissioner etc with little respect to the Constitution.

Though political authorities from the President downwards and public service led by his Secretary have taken oath under the Fourth Schedule swearing that they would safeguard the Constitution and adhere they have clearly violated this oath. Following the footsteps of a predecessor Secretary Weeratunga, by issuing Circular SP/RD/02/10 of 3/2/2010 in the manner his predecessor issued the Circular PPA/2/30/35(1) of 19/10/1990, weakened the PCs. What is wrong if one says that they had directly or indirectly committed the sin of converting the PCs to white elephants?

Even in financial decision making the independence and space exhibited a similar status. The attitude of the Finance Commission on PC financial requirements has been to satisfy them by providing for administrative needs of the PCs. When PC political leadership was pro-government, political abuse went judicially unchallenged. The silence maintained by the PCs when the turnover tax facility was “robbed” by the centre is an example. If anyone objected, certainly the neck would have been slashed.

I do not submit at length on personnel. The Eastern PC Chief Minister Chandrakanthan once said that he had no power even to recruit a sweeper. It speaks volumes. We are currently shaken to death in fear of such weakling Chief Ministers, thinking country’s sovereignty will be destroyed by them! All engineering, accounting, administrative, medical grades in the PCs are under central control. For personnel management PCs should obtain approvals from the Treasury, Governor, Cadre Commission, Finance Commission etc. These crown inaction.

The SMWs gang with the Treasury, Ministries and political authorities. They thumb down PCs. These mammoths ridicule PCs calling them white elephants.  They use the legal, financial, personnel, heavy political blocking as ‘weapons’ to ridicule and harass. The final aim is to make the PCs kneel at the political feet as preferred by the centre. Then where is devolution? For instance, is the exercise to amend the Constitution, to permit the Parliament to formulate laws for List I subjects to be accepted as the universal PC consent when the majority of PCs agreed, a step for strengthening devolution or weakening?  Is it surprising when such attempt is given a racial twist? I think that the Colombo based SMWs are the leaders forcing PCs to be white elephants.

Finding solutions

If the PCs are not to be white elephants the centre has to identify the weaknesses that prevent power sharing and implement recommended solutions. As the President wished, then the maximum could be given to the people. It may be possible to achieve political requirements in addition to development administration requirements. Without being blind to own faults, echoing that others are at fault and PCs are white elephants, it will augur happiness if Secretary Weeratunga could convert Colombo’s SMWs to be Change Agents for strengthening power sharing. Such process will help the country to absolve from the political challenges. If the PCs are white elephants deeply stuck in mud, Secretary Weeratunga could learn from Subhashithaya and pull them like a “King elephant.” I believe he can do it. If he succeeds he could look at the 13^th Amendment without a squint. Best wishes to him!