By R.M.B Senanayake –
I refer to the article by Dr Dayan Jayatilleka under the caption “Pre-Independence Day Thoughts 2015: The Future State Of The Nation” where he discusses the sentiments expressed by TNA politician Mr. Sumanthiran that the “full implementation of the 13th Amendment is no lasting solution.” He extrapolates from such sentiments to surmise that the removal of the roadblocks to the full implementation of the 13th Amendment is not enough for the TNA MP and that “they would not try their very best to make the 13th Amendment work. Because if it did they would not be able to prove their dogmatic politically fundamentalist position that “the full implementation of the 13th Amendment is no lasting solution. This of course is DJ’s surmise and it cannot be ascribed to Mr. Sumanthiran.
DJ asks what would be the final solution of Mr. Sumanthiran and the TNA. He is hung up on the issue of the unitary versus federal status- a distinction used by political scientists to describe widely varying arrangements for the devolution of power. India is supposed to be a quasi-federal State for example. The crux of the issue is that in general political parlance the division of powers between the Center and the periphery cannot be altered unilaterally in a federal state but can be so altered in a unitary state where the Center is superior and it is the Center that devolves the power and a future government is not bound by the division of powers that prevails and could unilaterally change it. Where does this leave the Tamil people? Naturally the Tamil MPs and the Tamil people do not want such a situation for a Sinhala nationalist party coming to power in the future could unilaterally alter the division of powers to undermine the devolution fully or partially. So the Tamil people keep on asking for a federal state in order to safeguard the existing division of powers. My understanding is that the Tamils want this essential feature because they fear the election of nationalist political parties gaining power and changing the allocation of powers between the Center and the Provincial Council. Call it federal or quasi federal but these are mere academic classifications. Constitutions are the work of negotiations between parties and they do not go on rigid academic classifications. Academics describe them after they are established.
Whether it is federal or quasi federal is a matter of terminology. But the word “ federal” is looked upon as akin to separation by the Sinhalese masses and their rabble rousing politicians while to the Tamils the word “unitary” is anathema owing to the implication that it could be abrogated any time through the center using the Concurrent Powers to effectively change the scheme of devolution indirectly. It could also do so directly by changing the scheme of devolution without the consent of the Provincial Council. Neither the Sinhalese masses not the Tamil masses have studied the finer points of constitution making. But need we be hung up on words. Can the Sinhalese concede the principle that the division of powers should not be unilaterally changed by the Center? If so will they agree to such a provision being included as an Amendment to the 13th Amendment? DJ says that MR was willing to have a second look at the Concurrent List. Yes, it needs to be examined to prevent any trespassing by the Center on the devolved functions of the Provincial Council. It is not only a matter of the law but also of the spirit where the President or his representative the Governor must respect the law both in words as well as in spirit.
Let us examine the 13th Amendment. There are several clauses in the 13th Amendment which could be interpreted in more than one way. For example the 13th 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 with the article 154F of the Constitution. So he has a choice to make.
Article 154F (Board of Ministers) says
1. There shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advice the Governor of a Province in the exercise of his functions. The Governor shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his function or any of them in his discretion.
2. If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question in any Court on the ground that he ought or ‘ought not have acted on his discretion. The exercise of the Governor’s discretion shall be on the President’s directions.
3. The question whether any, and if so what, advice was tendered by the Ministers to the Governor shall not be inquired into in any Court.
4. The Governor shall appoint as Chief Minister, the member of the Provincial Council constituted for that Province who, m his opinion. is best able to command the support of a majority of the members of that Council:
5. The Government shall, on the advice of the Chief Minister, appoint from among the members of the Provincial Council constituted for that Province, the other Ministers.
6. The Board of Ministers shall be collectively responsible and answerable to the Provincial Council.
7. A person appointed to the office of Chief Minister or member of the Board of Ministers shall not ,enter upon the duties of his office until he takes and subscribes the oath, or makes and subscribes the affirmation, set out in the Fourth Schedule.
But if the Governor chooses to exercise the executive power himself where is the devolution of power to the Provincial Council? Are these clauses consistent with an effective devolution of power? I think the option to the Governor provided only for the occasion where the Provincial Council was dissolved by the Governor.
I believe the problem arose also in the context of the Provincial Councils Act No 42 of 1987, which gave more power to the Governor. But the 13th Amendment must prevail over the Provincial Councils Act of 1987 because it is part of the Constitution while the latter is not.
If the Governor wishes to exercise power on his own initiative there could arise differences of opinion and even conflict with the Provincial Council even in the Sinhalese majority provinces. 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. But generally the Governors in the Southern PCs have steered clear of such situations.
Another provision in the 13th Amendment is with respect to the allocation of moneys to the Provincial Councils. The 13th Amendment provides for a Finance Commission which includes the representatives of the Provincial Councils. The relevant article of the Constitution states is as follows:
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
(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 next Budget which will be tabled in Parliament will include the allocation of funds to the Provincial Councils along with the Recommendations of the Finance Commission as provided for in the 13th Amendment.
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 bureaucracy centralized or decentralized. The provincial council bureaucracy must be under the Chief Minister and the Provincial Council not the Governor if devolution is to be effective. This option is available under the 13th Amendment but the former Governor of the Northern Province brought the provincial council bureaucracy under his control since this option seems to be available to him under the Provincial Councils Act no 42 of 1987. But there cannot be effective devolution if the provincial bureaucracy reports to the Governor. It need not be so for there is no such provision in the 13th Amendment for it must prevail over the Provincial Councils Act 42 of 1987 which is ordinary law and it cannot over-ride the 13th Amendment to the Constitution.
If the Tamils are willing 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 13th Amendment and the provincial staff should report to the Provincial Council and take orders from the Chief Minister if there is to be effective devolution of power. The 13th Amendment can be made to work only if the Governor behaves like a non-Executive President to maintain the integrity of the whole nation.