By Austin Fernando –
These days media often speak of conflicts between the center and provincial administration, especially between the Northern Provincial Council’s (NPC’s) Chief Minister (CM) / Members and the Governor of the Province. The CM had been known to me for some time as a gentle neighbor, Judge and the Governor as my subordinate and an “officer and gentleman.” Irrespective of their gentleness, now we hear of ‘official conflicts’ between them, much to the detriment of the NPC administration.
I must confess that the conflicting status has evidently seeped down to the administration too. This we observed when in Jaffna recently. As a retired public officer I cannot recollect such distanced and broken-down official relationship between the Government Representative (the Governor), political hierarchies (Provincial Councilors headed by the CM) and some administrators (headed by the Chief Secretary- CS). This does not speak well of all parties.
I am bothered because of the domestic and international criticisms that will evoke with such conflicts. The Government of Sri Lanka (GOSL) has appreciably and rightly boasted its commitment for reconciliation by conducting the election and establishing the NPC. These conflicts negatively hide such rich achievement. Hence my attempt here is to explain some home truths to the NPC administration based on experiences. What I say may not be palatable to the Governor or CM or CS. They are entitled for their viewpoints. My concern is that Sri Lanka should not fall in to difficulties on one hand, and the NPC should not destroy the opportunity it has received to make reconciliation and democracy work.
Chief Justice (CJ) S. Sharvananda’s legal interpretation of devolution in the case that determined the constitutionality of the 13th Amendment recorded:
““The creation of elected and administrative institutions with respect to each province – that is what devolution means- gives shape to the devolutionary principle”
“The concept of devolution is used to mean the delegation of central government power without relinquishment of supremacy.” (Sri Lanka Law Reports (SLLR) 1987/2- page 327)
Let’s look at how power could be shared. It can be by decentralizing or devolving or engaging non – governmental organizations. However, in 1988 it was done in an unplanned manner. It was only Minister Gamini Dissanayake who had a focussed plan and strategy to share power. The GOSL should have planned overlapping the concept of “principle of subsidiarity” to devolution, meaning that a function ought to be handled by the smallest, lowest, or least authority capable of addressing that matter effectively. No GOSL after the 13th Amendment respected this, even though CJ Sharvananda expected “The activities of central government now, include substantive powers and functions that should be exercised at a level closer to the people” (Ibid-326)
Center – Periphery conflicts
This is one reason for the PC administrations to face conflicts, identified as “centre-periphery administration conflicts”. These issues are always heightened when the Center and periphery are controlled by opposing political forces. The consequences had been the imbalance between functions / responsibilities and resource availability, Center encroaching the periphery, national political requirements making PCs dependent on, and, over-influenced by the Center and administrators at the periphery being too accommodative to the overtures from the Centre subserviently- probably aiming at possible future promotional prospects. This is acute in the NPC because it was under the yoke of Governor’s rule for long, which had stunted the provincial officers to abide by the Governor, irrespective of the “peoples’ wish”, as complained by the CM now. This conflicting psyche should be understood by the CM, NPC Members, GOSL bureaucracy and Governor.
Elected CM is appointed by the Governor [154F (4)] but his removal is by a different process with the failure of administration. Even dissolution of a PC has legal means and cannot be done in an ad hoc manner. Legally bound official interaction limitations exist between Governor and CM. The Constitution gives guidelines in Article 154F (1), which states that the Governor should act on the “aid and advice” of the Board of Ministers (BOM). Concurrently, the CM is constitutionally bound to reciprocate the Governor, under Article 154B (11).
Some believe that with the Governor’s “discretion” centre-periphery conflicts could be overcome. While agreeing that there are issues for which the Governor has discretion, which will be certainly influenced by presidential interventions, functions like dissolution cannot be considered as such. CJ GPS De Silva et al has specifically mentioned this in Maithripala Senanayake vs: GD Mahindasoma determination:
“It does not mean that because the Governor holds office during the pleasure of the President, he is obliged to comply with the directions of the President, disobeying the provisions of the Constitution…”.
However, in the same judgement CJ De Silva has said:
“There is no disagreement that although generally the Governor must act on the advice of the BOMs, he is not required to do so where he is by or under the Constitution required to exercise his functions or any of them in his discretion. Where he so acts in the exercise of his discretion, he is subjected to the directions and orders of the President [(Article 154F (1) and (2)].”
Governors and CMs must know how to balance between these two stances. However, there is no gainsaying that presidential directives have to be complied or given effect by the PCs / Governors in case of public security (Article 154J).
The three functions for successful devolution
There are three crucial functions to empower the PCs, (1) statute making, (2) establishment administration, and, (3) financial administration
Statute making performance has been fluctuating due to lacking policy guidance, capacity/ expertise, government encroachment of PC functions, subtle withdrawal of devolved powers (e.g. experiences in Health, Education], vague interpretations by Attorney General [e.g. Land Statute (Western PC) and on Local Government], ability to perform by the PC without statutes (i.e. using Consequential Provisions) Act etc.)
The need for cooperation with the Governor arises due to the legal requirement to obtain the Governor’s assent [(Article 154H (2) + (3)]. Problems could arise when Governor’s assent is reviewed by President and Supreme Court determination is sought. The Governor and President can ‘connive’ to ‘unethically bungle’ PC Statute making by deliberate delaying under Art: 154H (4). Such delaying or even ‘deliberate forgetting tactics’ can originate from various points. If interested one may check this with the experiences of the Eastern PC. Hence, this status could be avoided only by the CM and Governor cooperating with each other than going for head on collision. It is necessary for both not to try tricking or steamrolling each other on political or personal biases.
Additionally, there are the provisions for Statute making by the Parliament on devolved powers-154G (2) + (3) read with 154H and voluntary withdrawal from Statute making by PCs (154S). The former stance had gone before courts and decided (e.g. Divineguma Bill, Local Authorities Bill and Land Ownership Bill etc.). In this regard I may quote CJ Sharvananda again where he says “Since the contemplated PCs in our view do not perform any sovereign legislative function but are only empowered to enact legislation, subordinate in character, Parliament in creating them is not establishing another legislative body rival to it in any respect.” (SLRR 1987/2- pages 325-326). I wish the NPC would bear this in mind and commence Statute making, which should have been given priority than passing provocative resolutions.
Experiences of opposition by PC Ministers and CMs to Parliament law making on PC subjects are sometimes hilarious. In the cases against the Land Ownership Bill there were CMs who demanded retaining their right for state land for the PCs. They recently made public statements refusing to have this power for the PCs to suit political contingencies.
Similar response is observed from central bureaucracies. We find land circulars issued by Secretary to the President, Land Commissioner General and gazette notifications by Secretary Lands insinuating them as based on ‘National Land Policy’, when the Constitution has created the mechanism for national policy making for land (i.e. National Land Commission (NLC) under Appendix 2 of the 13th Amendment). Even the Lessons Learnt and Reconciliation Commission promoting the setting up of NLC has not succeeded as yet. This reluctance and duality will create legal uncertainty.
The PC financing system initially dealt with by the Salgado Report gives the Centre vast control of financing over the PCs. PCs’ budgetary requirements (2012) are Block Grants (84%) / Criteria Based Grants (4%) / Province Specific Development Grants (PSDG) (12%). The Finance Commission (FC) (154R) reviews and recommends budgetary requirements and under [154R (3)] “allocate from the annual budget.” Though the development budget percentages are low (16%) for PCs, it is well known that huge chunks of provisions are made for line ministries, humorously to invest in PC areas in PC related functions.
Financial administration problems between the centre and PCs could arise due to other legal requirements. The Provincial Fund (PF) is regulated by rules made by the custodian Governor [Sec: 19(5) PCs Act]. Warrant of CM is required to withdraw funds from PF, but the Emergency Fund (EF) (Sec: 20) is held by the Governor- regulated by rules made by him [Sec: 20 (3)]. Advances are paid by Governor from EF. Paying out of the Consolidated Fund (CF) for guarantees are decided by the Minister of Finance (MOF) (Sec: 21). MOF determines the guarantee interest rate and guarantee period. Loans can be raised with the consent of the MOF [Sec: 21(5)]. No grants are permitted except with Governor’s recommendation. Governor’s powers for finances (Sec: 28 and 30) are vast. In addition operational delays at the Treasury in releasing resources to PCs can be a headache affecting provincial development- (e.g. PSDG 2012- 47%). Under Sec: 22 of the PCs Act foreign aid negotiated by the GOSL for projects/ programmes in a province shall be allocated to such project / scheme. Again central control is seen. These make the need to cooperate still demanding.
These checks may be because the framers of the 13th Amendment (like their Indian counterparts) were animated by over-riding determination to keep the provinces dependent upon the Centre, thereby warding off any threat on the national integrity and the control of national accounts. Making the best cooperation to outwit such behavior is important.
The hub of provincial administration is the Chief Secretary (CS) who is appointed by the President with CM’s concurrence (Sec: 31 PCs Act). It is said that the President has recently agreed to change the NPC’s CS. However, one may argue that if the NPC’s CS was in office before the NPC was established, whether this legal provision applies. It might have been an acceptable logic if it was made, rather than taking shield under the Administrative Service Association objection to such change. If the latter was the real reason, I may question why the Association does not or did not protest when other Secretaries are transferred, without any inquiry or reason given, and ‘influence’ presidential decision (like in CS Vijayaluxmy’s case from NPC) on any ‘wrong’ done. If it was done so, any ‘erring’ (though the king can do wrong!) President would have been saved from causing injustice.
If the Association wants any examples, please take mine, as I was transferred out (from Secretary) without any informed reason- not once, but twice- by President Kumaratunga! I am certain that the Association- which we call ‘SASA’ with deep attachment- was in existence in 1996 and 2003, and no protest was made! Now I think I deserved it more also as a ‘personal favor and recognition’ because I was a past President of the SASA too! Subject to correction, I believe once appointed as a Secretary, such officer’s direct relationship to the relevant Service he belonged to ceases and the Secretary comes under the Secretaries’ Service Minute.
However, giving in to the CM’s request having strongly emphasized that it is not a legal necessity but for sake of cooperation, GOSL could have earned a better status to reconcile, especially when in hindsight one considers the CM’s statement made this as a reason to pass the embarrassing resolutions. It would have saved special meetings for the President with the Tamil National Alliance (TNA) Leadership too.
However, the NPC resolutions passed recently may not easily go down the throats of southern political actors and may call for tightening screws on NPC administration. If it is the need for the TNA to create a rumpus in Geneva, it is a different matter. If it is otherwise, to administer the NPC efficiently and effectively, it has to be a different strategy than this.
To my knowledge there had been only one similar instance of disagreement of CS’s appointment. It was in the Central Province when President Kumaratunga wished to appoint an officer of her choice without first obtaining the CM’s concurrence. CM WPB Dissanayake, hailing from the Opposition did not concur. However, the President did not agree with the CM’s propositions made later either. Finally with a slight delay, a choice of the President (another officer) was appointed. I am aware that even though legal redress was to be sought President’s decision went unchallenged in courts (on legal opinion) due to other considerations and the new CS carried on his service until he left on transfer! Why cannot this “all went on well” be repeated in the NPC?
The difference in the NPC as observed from the media reports is that CS and some senior officers inclusive of the CS do not favorably interact with the CM and NPC administration. Though we as outsiders are not in a position to exactly judge so, the observed behavioral patterns of these officers in Jaffna during our short visit endorsed such, than not. I may only say that as much as the Governor these officers also should uphold the Constitution as they have subscribed to the Fourth Schedule of the Constitution. If not they could be challenged for violation.
Public officers –at the periphery / center- also should not fish in troubled waters and must be the conduits for political peace making through administrative actions. In case of very senior administrators in the NPC it is essential that they make issues and solutions clearly understood by the CM and Councilors (some of them who are extraordinarily vociferous want them to be heard in Geneva when addressing the Council!) or Governor or any line Minister. They must not become the ‘issue’ or the unfair or illegal or unconventional ‘solution’ for the CM or Governor or any other. Unfortunately, I do not think this is observed in the North.
Learning from Nuwara Eliya District
Though times have changed, I am remembered of a situation that was in existence in Nuwara Eliya District when I was the Government Agent (GA) in 1980. The political leaders Gamini Dissanayake, S Thondaman, Anura Banadaranaike and Renuka Herath came from different political backgrounds, had different attitudes, priorities, approaches, means to exhibit own powers, conflicting views and actions too, wherein as the GA I had to balance them in connection with district administration functions. As the GA I maintained a total balance and made it easy for all these political stalwarts to participate in administration. If anyone is interested in clarifying the manner we acted, present Deputy Minister Muthu Sivalingam is the best witness to speak out on the subject of how we –i.e. my subordinates Additional GA Dayananda Dishanayake –later Commissioner of Elections, PG Amarakoon and HM Herath- who later were CSs in Central and Eastern PCs, the latter sadly giving his life in the course of duty etc.- maintained ‘political peace’ among covertly conflicting leaders.
Refocusing administration/ rehabilitating administartion999
I may suggest that the two amiable Secretaries to the President and Home Affairs/ Public Administration (Lalith Weeratunga and PB Abeykoon) can initiate an “administrative refocusing and rehabilitating exercise” if ‘political peace and reconciliation’ are to be achieved in the North. Especially, Weeratunga’s efforts may give him an opportunity to show Geneva and Washington in September next (depending on the Geneva outcome next month) that reconciliation time stated in the Thomson Advisory Group 28.35 minute commercial could be reduced to half or two-thirds by cooperation created by the two parties. He need not ask from critics as he did in the commercial to show “any better example anywhere in the world” because it will be within our shores. These outcomes will reinforce the arguments by Central Bank Governor Nivard Cabral, based on billions of dollars of investments.
Governor and administration
However, in spite of these pinching and pricking, concurrently the CM and NPC should be mindful of the vast powers the Governor possesses in establishment functions. The appointment, transfer, disciplinary control, dismissal of provincial public service is vested in the Governor. [Sec 32 (1)]. Governor can delegate these powers to the Provincial Public Service Commission [Sec: 32 (2)], appointed by him [Sec: 33 (1)]. Delegation does not mean ceasing responsibility for delegated action. Governor provides and determines all matters related to given powers, as far as practicable following schemes of recruitment prescribed for corresponding officers in the public service. [Sec:32 (3)]. Lack of consideration of these powers of the Governor by the NPC Members has self-created problems in the NPC, I presume. The reaction from the Governor too had not been educating or having a dialogue, but to “hit back” quoting the above mentioned powers. What else does one expect from a soldier, though retired? The less embarrassing and constructive status may be discussion and reconciling, as everyone has to function under the existing laws. Unfortunately, some in the NPC and the Governor’s Office have not shed the warring mentality of the past!
However, in the appointment of Provincial Secretaries too NPC had problems. From the information shared it appears that the Governor’s Office believes that he can appoint or transfer a Provincial Ministry Secretary of his own whim and fancy. It is not so. I may bring to the notice of stakeholders that the Presidential Secretariat Circular (No: 30/27 of 22- 6-1988- paragraph 3) has guided these appointments. My inquiries show that this circular has not been amended, revised or cancelled. Many are unaware of this guideline. Elkaduwa vs: Governor Stanley Tilakaratne case (SC Application 657/98) ruling upheld that the PC BOMs decision has to be adhered in this regard.
Education pays! But, egoistically if there is no will to educate, how can it pay?
Failure of Administrative Machinery
Nevertheless, a PC must be mindful of the provisions related to administrative failure that can be made known to the President by the Governor or otherwise. If the President if satisfied he will follow with a presidential proclamation [154L (1)]. Then the President assumes all powers except that of the PC and of any court. [154L (1)]. He will declare PC powers exercisable under the authority of the Parliament [154L (1) (b)] and empowers incidental and consequential provisions [154l (1) (c)] followed by an inquiry within 14 days to review status. Parliament can sanction President to delegate authority for statute making and finances [154M (1) (a) + (b)]. Please mind the term “delegate”. Trickily the term is not “devolved”. In this background it is best that the NPC avoids motivating the President to act under Articles 154L/154M.
Of course, the best argument for GOSL’s unpreparedness to cooperate in reconciliation and in a political settlement is for the President to act under Article 154K and 154L, when pressed to the wall. Similarly, who knows what the TNA’s, Diaspora’s and internationals covert intentions are? Do they need this to happen?
Sarkaria and Punchchi Commissions of India
Like in the present NPC and GOSL status there was the weakening of the hold of the Congress Party by other parties gaining in a number of Indian states. These revived “Centre – periphery issues” in India. In search of solutions, in August 1983 India appointed the Sarkaria Commission. Selected Sarkaria Commission and other recommendations that may be considered appropriate for Sri Lanka are mentioned here to enlighten the GOSL and the NPC both.
- Convert the FC which is one-sided in approach to a powerful body regulating central- periphery financial relations (In the Sri Lanka context budgeting for the “legally acquired or centralized but provincially operated or originally devolved functions”).
- Make the ‘CMs Conference’ a strong body for discussion and harmonizing relationships. (It is presided over by the Indian PM, with agenda related senior ministers in attendance.)
- Inter-State Council was appointed in 1990 where PM, CMs, Governors, selected ministers etc. sit to discuss issues and find solutions.
- Governor – to be appointed from outside the state, eminent persons, not active politicians. I may quote this report: “Reform was called in the selection of the Governors of States. He should not be regarded as a political representative sent to a State for surveillance. He is as much committed to the oath of office as any other Constitutional functionary. A person known to his proven competence, objectivity and knowledge of the Constitution should be appointed.”
In 2007 Indian government constituted the Commission on Centre-State Relations (CCSR) chaired by former CJ Madan Mohan Punchchi, calling for a fresh look at the relative roles and responsibilities of each level and their inter-relations. A few proposals from the CCSR are quoted for consideration.
- Governor – to be appointed from among three eminent persons suggested by the CM.
- Residuary legislation should be placed in the states.
- An institutionalized consultation between the Centre and periphery needs to be established.
- Constitution should be amended to set time stipulations for assent by Governors or the President for Bills passed by States.
- States should be allowed to enhance tax coverage, central surcharges and cesses should be made a part of a divisible pool, give a fair share of the goods and services tax to States.
- The share of market borrowing of the States to be increased from about 15% currently to 50%.
- A target minimum level of local self- government expenditure to gross domestic product should be set.
These are less politicized openings available (except the Governor’s appointment, which I presume has been wrongly handled by the NPC and TNA) for PCs to negotiate with GOSL and especially with the President cum Finance Minister. Attending to these may be appropriate to bring reconciliation, democracy and good governance than to pass resolutions which will distance the GOSL from the NPC further and consequentially attract unpalatable criticisms against the country, thus provoking the GOSL more. It is hoped that the GOSL also will create the environment to cooperate with the NCP so that unpalatable actions are not provoked and the foundation for reconciliation, democracy and good governance are established.
Sri Lankan PCs have to administer in a political frame– negative for power sharing. When the Centre does not possess political power in a PC administration the acuteness of negativism enhances. It is not related to ethnicity, but to ‘political cruelty’. The manner in which the then government responded to CM Amarasiri Dodangoda’s Southern PC victory is a good example of attempted annulling of democracy and good governance at work. When political power matches, PC administrations are made slavish by the Centre. This was the political reality here- then and now; and even in India, which would refrain India from questioning GOSL, as if GOSL has sinned.
PC administration has to get the expected momentum on a strategic step by step approach. Politically biased haste from the NPC and GOSL may orchestrate worse negativism. Patient, legal, rational objectivity will be the best virtue.
The ‘central’ and ‘provincial’ administrations’ roles in this exercise are huge. My observation of some public officers at the Centre and especially at NPC reminds me of a negative quote from Justice CG Weeramantry from his book “A Call for National Reawakening”. I quote:
“By definition the public servants hold the balance equally between citizens with competing claims to some service. Every claim to a service from a public servant must be decided on its merits, free of political favor or influence. It is the very negative of this principle that has become the order of the day and it is little wonder that the administration of Sri Lanka is in a sorry state.”
I wish the public and political administrations in the NPC act to disprove Justice Weeramantry.
Concurrently and most importantly let me remind two positive quotes to the NPC stakeholders made by President Rajapaksa on the 66th Independence Day:
“When we defeated terrorism and won freedom for the people in the South, we said that it was our responsibility to make it a greater victory for the people in the North.”
“People in our country who belong to all religions and speak different languages are moving together in unity and strength towards reconciliation and development.”
I wish the public and political administrations in the NPC act to prove President Mahinda Rajapaksa is absolutely right and truthful to the core.
In this regard President Rajapaksa’s invitation to TNA Leader R Sampanthan could be made an opportunity to discuss some of the above mentioned issues in a proactive manner. I might add that it will be a successful exercise through cooperative action which may negate nasty resolutions and irresponsible reactions that come from any quarter, even in the South.
Best wishes to you- Excellency the President, Hon: R Sampanthan, Hon: Governor, Hon: Chief Minister and Madam Chief Secretary and staff!