By Laksiri Fernando –

Dr. Laksiri Fernando

If I were to highlight a major defect of the Sub-Committee Report on Centre-Periphery Relations submitted recently to the Constitutional Assembly, and to the public, it is mainly the lack of an appropriate conceptual framework. It must be understood that the task of that Sub-Committee was the most difficult and controversial. The central theme that the Sub-Committee appeared to have pursued was: ‘what were the impediments for the effective functioning of the provincial councils?’ The following was their diagnosis.

“The nature of the constitution, the concurrent list, the national policy in the reserved list, the power of the Governor and the fiscal control by the centre have been cited as some of the main causes for the lack of proper functioning and healthy relations between the centre and the provinces. The Chairman, few Committee members and invites have referred to the unitary character of the constitution also as an impediment for the effective functioning of the Provincial Councils.” (p. 3).

By the ‘nature of the constitution’ they fundamentally meant the existing presidential system. This is agreed by many of the political parties and the people. The identification of the ‘concurrent list’ as an impediment goes back to late 1990s, and G. L. Peiris was the main advocate of this impediment. It is however not so much of having a concurrent list which is the impediment, but its operational provisions in Article 154G. If the tasks under the list are too many and confusing, it could be reduced, but doing away with such ‘joint tasks’ naturally goes against the necessity for having “healthy relations between the centre and provinces” as the Sub-Committee itself has identified.

Further Impediments

On the same premise, ‘the national policy’ should be a joint task and placing it solely in the reserved list could be an impediment. There is no question that the present powers of the Governor are an impediment, but complete nominal/ceremonial Governor or a President might not be conducive under the present circumstances. National security and national reconciliation could remain with the President, and thus his/her representative, the Governor. All other functions could be nominal/ceremonial. Fiscal devolution undoubtedly is a matter to be worked out very carefully and total control from the centre is not conducive for proper devolution.

It must be appreciated that only the Chairman and few other members who have identified the ‘unitary character of the constitution’ as an impediment. The Sub-Committee also has not recommended merger of the North and the East or any other provinces. Therefore, there is no need to be alarmist and create discord by distorting facts and misinterpretation of the recommendations.

This does not however mean that the public or the Constitutional Assembly (Parliament) should agree completely with the Sub-Committee recommendations. There are many technical matters to be sorted out after expert opinion. Before that, having an open debate in Parliament on 9 and 10 December is a useful move to sort out policy guidelines and what is possible and what is not. Constitution making after all, like politics, is an art of the possible. Sri Lanka at present is placed in a better position to achieve the ‘greatest good of the greatest number’ irrespective of ethnicity or religion.

If I were to summarize the essence of the diagnosis of the Sub-Committee, the failure of the devolution so far is located within the ‘coercive character of devolution’ from the centre. This is not necessarily an outcome of the unitary character of the state or the constitution. Devolution is devised to democratize a unitary state giving emphasis on communities, provinces, regions and villages. Devolution is not about federalism although devolution also could play a role in federalism. There are other mediatory factors that have intervened in impeding devolution in Sri Lanka. The bitter experiences of the war, the authoritarian political tendencies after the end of the war, and imprecise formulations in the 13th Amendment governing the relations between the centre and the provinces are some of them. In many respects the 13th Amendment is bad law.

At the same time, some of the impediments could have been overcome through political negotiations and compromise. For example, after the appointment of civilian governors to the North and the East, ‘coercive’ handling of the powers of the Governor has become largely reduced, if not eliminated. The fiscal control from the centre also has eased in recent times. There are no perfect constitutions anywhere in the world. A constitution also means what you make out of what is available. Therefore, the opportunity to draft a better constitution also should not be taken to the opposite extreme, making it difficult for the people’s approval at a referendum.

Mistaken Premises

With all the weaknesses, the main defect of the Sub-Committee report is not about its diagnosis, but about its prescription. To counter ‘coercive devolution,’ it has proposed what I would call ‘surgical devolution.’ It is based on the following premise.

“The principle that each tier of Government is distinct should guide centre-periphery relations.” (p. 23).

It is not that the principle is completely-false. But it is a half-truth. If one places, the three tiers in a hierarchical order in the vertical axis, the result undoubtedly is ‘coercive devolution.’ On the other hand, if you perceive devolution in only the horizontal axis, you may achieve ‘surgical devolution’ or surgical division of powers, but this is unusual even in a full-federal system or a ‘confederation.’ In contrast, the following figure places the three tiers of national, provincial and local governance both on the vertical and the horizontal axis. This could be the basis for what I have called ‘cooperative devolution’ (‘Going Beyond the 13A and Towards Cooperative Devolution,’ 8 May 2016).

Cooperative Devolution

There is no question that, there are or can be distinct spheres for the national, the provincial and the local as represented by the letters N, P, and L in the above figure. Therefore, those can be clearly defined. But at the same time, there are obvious other spheres where the three tiers should cooperate. The concept of ‘cooperative devolution’ derives from this analysis apart from other theoretical and historical sources. These cooperative spheres could be identified as (1) N/P and P/N in the case of the national and the provincial governance; (2) as N/L and L/N in the case of the national and the local governance; and (3) as P/L and L/P in the case of the provincial and the local.

Neglect of Local Government

However much the Sub-Committee report talks about ‘distinct spheres’ for the three tiers, no autonomy is accorded in the recommendations for local governments! The first recommendation says “Recognize Local Authorities as the third tier of Government functioning under the provincial councils” (p. 6). This is like saying ‘recognize provincial councils as the second tier of government functioning under the national government! The ‘distinct’ theory is applied to the provincial councils, but not to the local government. This shows that ‘partial theories are more dangerous than no theory.’

Take Over of Administration!

Under the prevailing system of devolution, it is true that there is an ambiguity about the administrative structures for the provincial councils. This should be rectified. As many studies have revealed, the public servants have been the most reluctant section of society who were not ready to accept devolution at the beginning. Since 1833, the administrative service has been a highly centralized one in the country. In addition, the governors were undoubtedly controlling the provincial public service in the past. However, without making recommendations to rectify the situation, the Sub-Committee has recommended to take over even the national administration within provinces. The recommendations under Administration says the following.

“Devolution of powers has not only to be effective but also avoid duality. (See also the submission of the Northern Provincial Council). For this purpose, we propose that the district and divisional administration to be restructured so as to form part of the provincial administration. District and Divisional secretaries should be re-designated as Additional Chief Secretaries and Deputy Chief Secretaries respectively. All Grama Niladharis in provinces should also be absorbed into the Public Service of the Province.” (p. 20).

The identified ‘dualism’ might be harmful for devolution. The solution however is not ‘monism’ but cooperation. Those who oppose centralization at the national level should not advocate centralization at the provincial level. There is no question that proper administrative structures should be in place for the provincial administration at the district and the divisional level. But this should not be at the expense of subjugating the national administration to the provincial administration at those levels. If this proposal comes from the Northern Provincial Council as indicated, it appears ‘mischievous.’ It cannot be serious.

The sub-committee has proposed the ‘district and divisional secretaries’ to be absorbed into the provincial administration! It further proposes “all Grama Niladharis in the provinces should also be absorbed into the Public Service of the Province.” Under the circumstances, if someone criticizes this proposal as an attempt to ‘liquidate the Sri Lankan state,’ I would not blame that person.

Encroachment of Other Premises

‘Provincial administration’ was within the purview of the Sub-Committee. However, the ‘concurrent list/reserved list, law and order and police powers, land or the constitutional court’ were not. However, they have encroached into them giving the following explanation.

“In view of the fact that there has to be a clear demarcation of power between the centre and the peripheral units, which would lead to healthy centre-periphery relationship, the committee decided to give recommendations on the following also, although these subject matters may be dealt with by the Steering Committee.” (p. 25. My emphasis).

It is common knowledge even in the ‘theory of separation of powers,’ that clear demarcations cannot be made in respect of legislative and executive functions. There are overlaps and grey areas. That is why we have parliaments combining both legislative and executive functions, with relative demarcations, and leaving the judiciary for its independence. Here we are not even talking about ‘separation of powers,’ but ‘division of powers.’ It may be possible for an obstinate legalist to imagine such a surgical division. But common sense politics, let alone Political Science, could not imagine that.

Major Defects

It would have been admissible if the Sub-Committee made their ‘observations,’ as the above matters pertain to the centre-periphery relations. However, they have gone beyond and made direct recommendations, and quite deterministic or ultimatist ones for that matter. This is as if there were no ‘demarcations’ between the Steering Committee functions and the Sub-Committee functions! There has been a clear ‘extremism’ in that respect and in the recommendations. Without dwelling on all ‘extremist’ recommendations, it is sufficient here to quote what they have recommended about the Concurrent List.

“Hence, the Committee recommends that the Concurrent List to be done away with and the subjects added to relevant lists.”
“Also the Committee recommends the repeal of the rubric ‘National Policy on All Subjects and Functions’ from the Reserved List.”
“All subjects and Functions not specified in any of the lists (provincial and reserved lists) should be the subject matter of the province.” (p. 26).

It is difficult to imagine from where this obnoxious notion of ‘doing away with the concurrent list’ has come. Although the 13th Amendment was adopted from the ‘federal’ India, the devolution notion basically comes from ‘unitary’ Britain. If I may quote from an authority on the subject (Michael O’ Neill, ‘Devolution and British Politics,’ 2004), this is what he says.

“Overlap or concurrence between the respective levels of government, rather than their outright separation, sometimes occurs, or is even formally designated, in federal systems of the concurrent variety. Westminster both retains an interest in those policy areas devolved to the territorial governments, and continues to hold de jure power to act (subject to political constraints and an appropriate legal norm) in every area of public policy.”

The overlap or concurrence in devolution is natural and there is nothing wrong in formally designating it as such. In the case of Sri Lanka, it could be reduced. It can be better renamed as ‘Cooperative List’ as I have previously proposed. O’ Neill has not used the phrase ‘cooperative devolution’ that I have used, but he has used ‘cooperative intergovernmentalism.’

The Sub-Committee’s proposal to repeal what they have called the rubric of ‘national policy on all subjects and functions’ from the Reserved List is also not acceptable. One may say it could be a ‘cooperative function.’ Proposal to do away with ‘national policy’ would have major repercussions. Sri Lanka might become the only country without a ‘national policy’! It would have major consequences on progressive transformation of society, and if necessary, future implementation of socialist or socialistic policies in the country.

The third proposal to place all subjects and functions not specified in any of the lists (provincial and reserved) in the provinces, is not only to effectively propose a federal principle but also to go beyond. The result in principle is to subordinate the ‘national’ to the ‘provincial.’