By Rajiva Wijesinha –
After many months of thinking Prof G L Pieris was leading the President down the garden path, I was pleased recently to find that he had lived up to his intellectual reputation and given some reasonably sound advice. This was with regard to the effort to amend the 13th Amendment, as to which initially there were four areas of apparent concern.
When the Cabinet was finally given some amendments to consider however, there was only one proposal for change. This was after G L had been asked for advice, and it looks like he had very sensibly said there was no point in worrying about land and police issues. Given that National Policy on all issues remains with the central government, and given the practices that have been instituted since the days in which the 13th Amendment was passed, there is no doubt that government will continue to be in charge of these areas. Implementing national policy through regional agencies, whether elected or appointed, will of course continue, and I can only hope that government moves swiftly towards making sure this happens through small units which can actually relate readily to the people.
With regard to another issue, though the advice G L gave was ambiguous, he had made it clear that the immediate worries about merger could be assuaged, not necessarily by amending the 13th Amendment, but also by changing the Provincial Council law, under which the President had been mandated to merge two Provinces. Though the Liberal Party has always opposed merger, and indeed saw it as a seminal flaw in what would otherwise have been a reasonable mechanism to bring government closer to the people, it would certainly be a mistake now to tamper with the 13th Amendment unless there were a comprehensive overhaul that gave at least as much as it took away, in the interests of clarification as well as efficacy.
GL’s simple answer then provides the most acceptable solution. I realize that this might not satisfy all, and in particular Muslims who are fearful of the traditional homelands argument being resurrected (for they remember how the original idea of a homeland for the Tamil speaking turned into a homeland for Tamils, from which the Muslims were chased out). But while I can see why they would like any possibility of merger eliminated, the possibility that remains in the Constitution can be dismissed since there is no further need for Parliament to legislate as to how the merger of any Provinces that wish it would be implemented. That element should be removed in an overhaul, but such an overhaul should also fulfil the President’s commitment to add something, which can be done through a Second Chamber as well as streamlining of the concurrent list.
If this last were done – and it should be, given how so much more could be done in so many areas covered by the concurrent list if provinces were given clear powers, and a coherent policy according to which they could exercise these – that would also help to get over the area in which I feel G L has been too indulgent to those opposed to the 13th amendment. I refer to the proposal that did come before Cabinet, to change the provision that prevents legislation being passed affecting subjects on the Provincial List without the concurrence of the affected Provinces.
A little thought however should have made it clear that the current provision need not be changed. Now governments can pass such legislation with a two thirds majority to have it apply to all provinces, while with a simple majority it will apply only to those provinces that have concurred.
However, government should in fact not be passing legislation on matter that lie within the purview of the Provinces – as opposed to matters on the concurrent list, as to which a simple majority suffices for it to affect all Provinces. If indeed it deems it essential to work on matters on the Provincial List, it must be in terms of National Policy, which is a reserved subject – which means that the central government can introduce legislation without even consulting the Provinces.
Unfortunately government, or some elements in government, got carried away by the judgment the Supreme Court delivered with regard to the Divineguma Bill. As I pointed out at the time, the judgment indicated that we should be more careful in introducing legislation, and in time I believe everyone in government agreed, given that the changes the Supreme Court had asked for re-established the parliamentary controls on expenditure that would otherwise have been delegated.
In any case, given the provisions of the Constitution, government should work out how to develop national policies on all issues and ensuring these are followed, which means institutionalizing the power to monitor and remedy any shortfalls. Once this is clearly established, the question of provinces acting contrary to national policy should not arise. In turn, government should allow provinces the freedom to develop their own systems with regard to improving the lot of the citizenry in terms of national policy.
This should be accompanied by ensuring greater participation of the provinces in the central government and in the formulation of national policy. While it would be good to ensure that the Cabinet has active representation from all over, we should also move swiftly on a common mechanism to achieve this, which is a Second Chamber based on provinces. When the concurrence of that Chamber is also required for legislation, the fears of the provinces, that majoritarian tendencies will govern legislation at the Centre, can be assuaged.
We must after all remember that, while the fears of the majority cannot be dismissed out of hand, and must be addressed positively = , which is why the position GL has advanced is generally beneficial – it is even more important to lay to rest the fears of minorities too.