By R.M.B Senanayake –

R.M.B. Senanayake

The Government and the Northern Provincial Council have got off to a good start displaying much goodwill to each other. It is now necessary to make the Northern Provincial Council work. All persons who wish peace and good governance will be happy indeed. But there are several obstacles and challenges that have to be ironed out if the Northern Provincial Council is to function in a manner that will fulfill the expectation of the people of the North and make them willingly give up the demand for a separate state put forward by the Tamil Expatriates.

There are several clauses in the 13^th Amendment which could be interpreted in more than one way. For example the 13^th Amendment says that the Executive power of the Provincial Council shall be exercised by the Governor either directly or through the Ministers of the Board of Ministers or through officers subordinate to him in accordance wi8th the article 154F of the Constitution. If the Governor wishes to exercise power on his own initiative there could well be differences of opinion and even conflict. Such a situation arose in the Amparai District with regard to teacher transfers where the Governor on the advice of the Member of Parliament for the District allegedly reversed the orders of the Provincial Council Minster in charge of the subject.  One hopes that such conflicts will not arise in the functioning of the Northern Provincial Council.

Another provision in the 13^th Amendment is with respect to the allocation of moneys to the Provincial Councils. The 13^th Amendment provides for a Finance Commission which includes the representatives of the Provincial Councils. The relevant article of the Constitution states is as follows:

Finance Commission

154R. (1) There shall be a Finance Commission consisting of –

(a) the Governor of the Central Bank of Sri Lanka;

(b) the Secretary to the Treasury; and

(3) The Government shall, on the recommendation of and in consultation with, the

Commission, allocate from the Annual Budget, such funds as are adequate for the

purpose of meeting the needs of the Provinces.

(4) It shall be the duty of the Commission to make recommendations to the President as

to –

(a) the principles on which such funds are granted annually by the Government for the

use of Provinces, should be apportioned between various Provinces; and,

(b) any other matter referred to the Commission by the President relating to Provincial

finance.

One hopes the Budget for 2014 which will be tabled in Parliament next month will include the allocation of funds to the Provincial Councils along with the Recommendations of the Finance Commission as provided for in the 13^th Amendment.

National Land Commission

Appendix ii of the 13^th Amendment refers to Land and Land Settlement. It states that state lands will be vested in the Republic but there are constitutional provisions regarding land use and land alienation where the President and the Provincial Council are to be guided by the Land policy established by the National Land Commission. So it is essential to establish the National Land Commission and the Technical Secretariat to service the Commission as provided in the 13^th Amendment. Land laws in our country are complex and require experts to deal with the subject. There is also the vexed question of the needs of the Army to establish camps in the North. While the Army has a right to establish camps anywhere in the Island yet the local population needs reassurance that the Army will not interfere in the day to day life of the citizens and that they can enjoy the same degree of freedom as those in the South. The Army must follow the same pattern of conduct as in the South.

The recent decision of the Supreme Court that all land belongs to the state which is treated as equivalent to the Central Government makes it urgently necessary to appoint the National Land Commission. These institutions are the channel through which consultation and co-operation is to be ensured in the functioning of the Provincial Councils and they cannot be deferred any further.

If the Tamils are to willingly give up the demand for a separate state permanently they must feel that their freedom and rights are safeguarded. So there should be amendments to the 13^th Amendment.

Asymmetric devolution

There is however no appetite for devolution of power to the Provincial Councils in the South. The cost of our political Establishment is very high and the economy cannot afford it. We have really duplicated a bunch of politicians at the provincial level who are just copies of those at the National Parliament. These Provincial Council members in the South have no power for all the funds are disbursed directly by the Central Government through the Minister for Economic Development. These Provincial Council members of the South are lotus eaters doing nothing to earn their keep. They are also a lawless bunch.

The present regime does not want to delve power to them for there would be little for them by way of power and resources if the Provincial Councils in the South were to effectively exercise power. The case of the late Berty Premalal Dissanayake would have shown the ruling regime that if the Southern Provincial Councils exercise real power they would constitute a threat to the Ministers of the Central Government  as they seek to assert themselves and emerge as regional political leaders. They could thereafter pose a threat to the ruling party and its exercise of power. Our political parties are held together purely by the self interest of the politicians and if substantial power is given to the Provincial Councils then many politicians would prefer to be members of such Provincial Council rather than be members of the National Executive. Mr. Dayasiri Jayasekera has shown that the post of Chief Minister in a Provincial Council matters.

Ranil Wickremasighe proposed asymmetric devolution. There is a strong case for it at least on grounds of economy for it will reduce the cost of the political Establishment. Any devolution of power in the South should be to the levels below the Provincial Council such as the Pradesiya Sabhas although the way they are presently constituted may be worth reviewing as proposed by the Wanasinghe Commission on Local Government in the 1990s.

The case for Devolution of Power really arises in the North and East where there is a demand for it from the Tami minority who feel they have been discriminated against. But the devolution to the North and East could have been linked to the giving up of the Tamil demand for separation. An agreement should be formed between the Tamil parties and the majority parties in the South to give up the right to secession in return for making the 13^th Amendment an entrenched clause in the Constitution. The inadequacy of the present form of centralized government to win the willing co-operation of the Tamil minority cannot be ignored in the present international context when several allegations are made regarding the violation of human rights and even genocide and war crimes during the las stage of the war. The Tamil parties may be persuaded to dissociate themselves from any demand for investigation of the allegations of violations during the last stage of the war.

The Division of Powers should be entrenched in the Constitution

Federal government refers to a separation of powers between a central, national government and inferior political entities. In the US, power and responsibility is shared between state governments and the national government. So is it in India. Under devolution of power under the 13^th Amendment there is a similar division of power but the division of power is not made irrevocable. This can be done by making the 13^th Amendment irrevocable. Call it federalism if necessary but the principle involved is the irrevocable nature of the allocation of powers and the removal of overlap of powers.  The U.S Constitution was passed by a Convention of the States, which are a constituent part of the Republic and then placed before the Congress. “Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled.

What did the Constituent Assembly that adopted the 1972 Constitution? They ignored the Federal Party and did not take into account their consent. Thereafter the Federal Party passed the Vaddukoddai Resolution.

How we do so should be discussed further. The best course of action is to make the 13^th Amendment an entrenched provision at least as far as the Allocation of Functions is concerned. It may also be necessary to remove the overlapping of functions between the Central Government and the Provincial Council. Whether the new constitutional arrangement is federal or not is irrelevant. The word doesn’t even have to be mentioned. What is necessary is the Center will not have the power to unilaterally change the 13^th Amendment particularly Allocation of functions.  In short there should be a permanently binding agreement called sometimes a covenant.