{"id":119732,"date":"2014-02-07T15:21:24","date_gmt":"2014-02-07T09:51:24","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=119732"},"modified":"2014-02-16T00:05:25","modified_gmt":"2014-02-15T18:35:25","slug":"making-provincial-administration-work-in-the-north","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/making-provincial-administration-work-in-the-north\/","title":{"rendered":"Making Provincial Administration Work In The North"},"content":{"rendered":"

By Austin Fernando<\/span><\/a> –<\/b><\/p>\n

\"Austin<\/a>

Austin Fernando<\/p><\/div>\n

These days media often speak of conflicts between the center and provincial administration, especially between the Northern Provincial Council<\/span><\/a>\u2019s (NPC’s) Chief Minister<\/span><\/a> (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 \u201cofficer and gentleman.\u201d Irrespective of their gentleness, now we hear of \u2018official conflicts\u2019 between them, much to the detriment of the NPC administration.<\/p>\n

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.<\/p>\n

Why bother?<\/b><\/p>\n

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.<\/p>\n

Devolution<\/b><\/p>\n

Chief Justice (CJ) S. Sharvananda\u2019s legal interpretation of devolution in the case that determined the constitutionality of the 13th Amendment recorded:<\/p>\n

\u201c<\/b>\u201cThe creation of elected and administrative institutions with respect to each province \u2013 that is what devolution means- gives shape to the devolutionary principle\u201d <\/b><\/p>\n

And added <\/b><\/p>\n

\u201cThe concept of devolution is used to mean the delegation of central government power without relinquishment of supremacy.\u201d (Sri Lanka Law Reports (SLLR) 1987\/2- page 327)<\/b><\/p>\n

Let\u2019s look at how power could be shared. It can be by decentralizing or devolving or engaging non \u2013 governmental organizations. \u00a0However, 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 \u201cprinciple of subsidiarity\u201d 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 \u201cThe activities of central government now, include substantive powers and functions that should be exercised at a level closer to the people\u201d (Ibid-326)<\/p>\n

Center \u2013 Periphery conflicts<\/b><\/p>\n

This is one reason for the PC administrations to face conflicts, identified as \u201ccentre-periphery administration conflicts\u201d.\u00a0 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\u2019s rule for long, which had stunted the provincial officers to abide by the Governor, irrespective of the \u201cpeoples\u2019 wish\u201d, as complained by the CM now. This conflicting psyche should be understood by the CM, NPC Members, GOSL bureaucracy and Governor.<\/p>\n

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 \u201caid and advice\u201d of the Board of Ministers (BOM). Concurrently, the CM is constitutionally bound to reciprocate the Governor, under Article 154B (11).<\/p>\n

Some believe that with the Governor\u2019s \u201cdiscretion\u201d 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:<\/p>\n

\u201cIt 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\u2026\u201d. <\/b><\/p>\n

However, in the same judgement CJ De Silva has said:<\/p>\n

\u201cThere 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)].\u201d <\/b><\/p>\n

Governors and CMs must know how to balance between these two stances. \u00a0However, 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).<\/p>\n

The three functions for successful devolution<\/b><\/p>\n

There are three crucial functions to empower the PCs, (1) statute making, (2) establishment administration, and, (3) financial administration<\/p>\n

Statute making <\/b><\/p>\n

Statute making performance has been fluctuating due to lacking policy guidance,\u00a0 capacity\/ expertise, government encroachment of PC functions, subtle withdrawal of devolved powers (e.g. experiences in Health, Education], vague interpretations by Attorney General\u00a0 [e.g. Land Statute (Western PC) and on Local Government], ability to perform by the PC without statutes \u00a0(i.e. using Consequential Provisions) Act etc.)<\/p>\n

The need for cooperation with the Governor arises due to the legal requirement to obtain the Governor\u2019s assent [(Article 154H (2) + (3)]. Problems could arise when Governor\u2019s assent is reviewed by President and Supreme Court determination is sought. The Governor and President can \u2018connive\u2019 to \u2018unethically bungle\u2019 PC Statute making by deliberate delaying under Art: 154H (4). Such delaying or even \u2018deliberate forgetting tactics\u2019 can originate from various points. If interested one may check this with the experiences of the Eastern PC.\u00a0 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.<\/p>\n

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 \u00a0Sharvananda again where he says \u201cSince 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.\u201d (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.<\/p>\n

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.<\/p>\n

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 \u2018National Land Policy\u2019, 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 <\/sup>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.<\/p>\n

Financial Administration<\/b><\/p>\n

The PC financing system initially dealt with by the Salgado Report gives the Centre vast control of financing over the PCs. PCs\u2019 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)] \u201callocate from the annual budget.\u201d 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.<\/p>\n

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\u2019s recommendation. Governor\u2019s 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. \u00a0Again central control is seen. These make the need to cooperate still demanding.<\/p>\n

These checks may be because the framers of the 13th Amendment\u00a0 (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.<\/p>\n

Provincial Administration<\/b><\/p>\n

The hub of provincial administration is the Chief Secretary (CS) who is appointed by the President with CM\u2019s concurrence (Sec: 31 PCs Act). It is said that the President has recently agreed to change the NPC\u2019s CS. However, one may argue that if the NPC\u2019s 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 \u2018influence\u2019 presidential decision (like in CS Vijayaluxmy\u2019s case from NPC) on any \u2018wrong\u2019 \u00a0done. If it was done so, any \u2018erring\u2019 (though the king can do wrong!) President would have been saved from causing injustice.<\/p>\n

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 \u2018SASA\u2019 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 \u2018personal favor and recognition\u2019 because I was a past President of the SASA too! \u00a0Subject to correction, I believe once appointed as a Secretary, such officer\u2019s direct relationship to the relevant Service he belonged to ceases and the Secretary comes under the Secretaries\u2019 Service Minute.<\/p>\n

However, giving in to the CM\u2019s 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\u2019s 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.<\/p>\n

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.<\/p>\n

To my knowledge there had been only one similar instance of disagreement of CS\u2019s appointment. It was in the Central Province when President Kumaratunga wished to appoint an officer of her choice without first obtaining the CM\u2019s concurrence. CM WPB Dissanayake, hailing from the Opposition did not concur. However, the President did not agree with the CM\u2019s 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\u2019s 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 \u201call went on well\u201d be repeated in the NPC?<\/p>\n

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.<\/p>\n

Public officers \u2013at 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 \u2018issue\u2019 or the unfair or illegal or unconventional \u2018solution\u2019 for the CM or Governor or any other. Unfortunately, I do not think this is observed in the North.<\/p>\n

Learning from Nuwara Eliya District<\/b><\/p>\n

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 \u2013i.e. my subordinates Additional GA Dayananda Dishanayake \u2013later 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 \u2018political peace\u2019 among covertly conflicting leaders.<\/p>\n

Refocusing administration\/ rehabilitating administartion999<\/b><\/p>\n

I may suggest that the two amiable Secretaries to the President and Home Affairs\/ Public Administration (Lalith Weeratunga<\/span><\/a> and PB Abeykoon) can initiate an \u201cadministrative refocusing and rehabilitating exercise\u201d if \u2018political peace and reconciliation\u2019 are to be achieved in the North. Especially, Weeratunga\u2019s 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 \u201cany better example anywhere in the world\u201d 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.<\/p>\n

Governor and administration<\/b><\/p>\n

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 \u201chit back\u201d 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\u2019s Office have not shed the warring mentality of the past!<\/p>\n

However, in the appointment of Provincial Secretaries too NPC had problems. From the information shared it appears that the Governor\u2019s Office believes that he can appoint or transfer a Provincial Ministry Secretary of his own whim and fancy. It is not so.\u00a0 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.\u00a0 Elkaduwa vs: Governor Stanley Tilakaratne case (SC Application 657\/98) ruling upheld that the PC BOMs decision has to be adhered in this regard.<\/p>\n

Education pays! But, egoistically if there is no will to educate, how can it pay?<\/p>\n

Failure of Administrative Machinery<\/b><\/p>\n

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.\u00a0 Parliament can sanction President to delegate authority for statute making and finances [154M (1) (a) + (b)]. Please mind the term \u201cdelegate\u201d. Trickily the term is not \u201cdevolved\u201d. In this background it is best that the NPC avoids motivating the President to act under Articles 154L\/154M.<\/p>\n

Of course, the best argument for GOSL\u2019s 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\u2019s, Diaspora\u2019s and internationals covert intentions are? Do they need this to happen?<\/p>\n

Sarkaria and Punchchi Commissions of India<\/b><\/p>\n

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 \u201cCentre \u2013 periphery issues\u201d 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.<\/p>\n