by Neville Ladduwahetty Courtesy The Island

The consensus at the recently concluded meeting of the Sri Lankan Party Leaders, chaired by the President, was for the Full Implementation of 13A” (the 13th Amendment to the Constitution of Sri Lanka). However, none of the Party Leaders spelt out what precisely was meant by the phrase Full Implementation of 13A”.

The general opinion is that Full Implementation of 13A” means the implementation of all the provisions specified in the 13th Amendment (13A). Since all provisions in 13A, except for Land and Police powers, have already been implemented, it must then follow that the Full implementation of 13A” would be completed with devolving Land and Police powers as provided in the 13th Amendment of the Constitution which was certified on November 14, 1987.

BACKGROUND to 13A

The 13A was not a self-determined arrangement for sharing power between the Centre and the Periphery of Sri Lanka. It was a structural arrangement unilaterally imposed on the Peoples of Sri Lanka by India, following the Indo-Lanka Accord. Furthermore, 13A as an arrangement for Sri Lanka is based and crafted to suit the political, geographical, cultural and structural formation of the State of India, which essentially is a Parliamentary system that functions as a quasi-federal State. Sri Lanka on the other hand, is based on a Unitary Presidential System. Consequently, 13A is totally unsuited for Sri Lanka. Notwithstanding this fact, since the 13A is the only Centre/Periphery arrangement that currently exists, it is in Sri Lanka’s interest to make it work as best as possible, in a suitably modified form, to fit its existing Presidential system of government.

LAND POWERS

The prevailing understanding relating to Land powers was that it was a devolved subject, until the Supreme Court ruled otherwise as per the determination presented below.Extracts of the judgment by a Supreme Court Panel of 3 Judges relating to State Land, are presented below for the benefit of those who are unaware of this judgment. The determination of the Supreme Court was that State Land shall continue to vest in the Republic”. See details below.

S.C. Appeal No. 21/13

Before: Mohan Pieris, P.C., C.J., Sripavan, J., Wanasundera, P.C., J.

Judgment written by: Sripavan, J.

Relevant extracts of the judgment are:

It must be noted that the demarcation between the Centre and the Provinces with regard to State Land” must be clearly identified…. As far as possible, an attempt must be made to reconcile entries in Lists I, II, III of the Constitution and the Court must avoid attributing any conflict between the powers of the Centre and the Provinces”

On an examination of the Provincial List, it would appear at item 18 as follows: Land – Land that is to say, rights in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement, to the extent set out in Appendix II” (emphasis as in judgment)Appendix II sets out as follows:

Land and Land Settlement

State Land shall continue to vest in the Republic and may be disposed of in accordance with Article 33 (d) and written law governing this matter…” (Ibid) Thus, it is important to bear in mind that land” is a Provincial Council subject only to the extent set out in Appendix II. This Appendix imposes the restriction on the land powers given to Provincial Councils. The Constitutional limitations imposed by the legislature show that in the exercise of its legislative powers, no exclusive power is vested in the Provincial Councils with regard to the subject of land”.

According to 1.2 (in Appendix II) it is important to note that a Provincial Council can utilize State Land” only upon it being made available to it by the government. It therefore implies that a Provincial Council cannot appropriate to itself without the Government making State Land” available to such Council. Such State Land” can be made available by the Government only in respect of a provincial Council subject. The only power cast upon the Provincial Council is to administer, control and utilize such State Land” in accordance with the laws passed by Parliament and the statutes made by the Provincial Council.”

In view of foregoing analysis, and considering the true nature and character of the legislative powers given to Provincial Councils one could safely conclude that Provincial Councils can only make statutes to administer, control and utilize State Land, if such State Land is made available to the Provincial Council by the Government for a Provincial Council subject.”

POLICE POWERS

Appendix 1 – Law and Order of 13A Paragraph 11 states: All Police Officers serving in units of the National Division and Provincial Divisions in any Province shall function under the direction and control of the D.I.G. of such Province”.

Paragraph 11: 1 states: The D.I.G. of the Province shall be responsible to and under the control of the Chief Minister thereof in respect of the maintenance of public order in the Province and the exercise of police powers in the Province as set out in this schedule”.

This means that the D.I.G. of the Province who is responsible for exercising of Public Order and the exercise of Police powers” within the Province, is responsible to and under the control of the Chief Minister” who, as the Head of the Board of Ministers is primarily responsible for making statutes applicable to the Province”, and is therefore, part of the Legislature of the Province. This arrangement is totally unacceptable because it tempts political interference in matters relating to the maintenance of public order. Therefore, this provision should be amended so that Police could maintain public order independently. Since any attempt to derogate the powers of the Chief Minister would be strongly resisted, despite it being noteworthy, such an amendment would require a special majority of 2/3 of the Parliament voting in its favour. Since it is not prudent to venture on such an exercise at this time, it is best not to devolve powers relating to Law and Order.

A further reason not to devolve Police powers is on account of the prevailing security situation in the country. The lawlessness prevailing in the country is tied up with external threats arising from both drug and human trafficking in which not only Sri Lankans but also foreign nationals, are involved. Furthermore, the Indian Security Agencies have repeatedly warned of activities relating to the revival of the LTTE. In the background of such developments, it would be foolhardy to not give the Provincial Police a free hand to act independently, as it involves National Security, in matters relating to Law and Order in the Provinces. Clearly, devolving Police powers to Provinces at this point in time would compromise the National Security situation in the country.

Realizing the need for the Provincial Police to be free to act independently, India for instance, has made sure that the authority over a State police is held by the State’s Home Department led by a chief or principal secretary, who essentially is an Administrative Officer. How the provisions in 13A relating to Police powers came to be so different from that in India, notwithstanding the fact that the Executive power of the Governor and the powers of the Provincial Council are nearly identical to powers in Indian States, is indeed a mystery.

CURRENT STATUS of 13A

The current status of 13A is that all powers constitutionally provided under the 13th Amendment are devolved to the Provinces except for Land and Police powers. Land power is a reserved subject and therefore, cannot be devolved as determined by the Supreme Court cited above. Police power should not be devolved as currently provided in 13A because of the law and order situation in the country at this time. The current situation is therefore that all possible power under 13A has already been devolved, which means 13A is fully implemented.

If that is in fact the case, why are Provincial Councils often described as white elephants and that the return on the cost of maintaining them does not warrant them being retained. If the reason is the lack of devolved power, any revisions would amount to a new Constitutional Amendment that at a minimum would require a 2/3 majority. This is unlikely in view of the prevailing negative attitude about the effectiveness of Provincial Councils. Therefore, the more realistic approach is to seriously investigate the effectiveness of the existing organizational structure and introduce the needed reforms to make the operation of Provincial Councils more effective.

Explaining the current situation, a Report titled (PROVINCIAL COUNCILS: OPERATIONAL EXPERIENCE OF DEVOLUTION (1996, p. 17) states: The position of the Divisional Secretary is more awkward despite being placed under the direct authority of the Ministry of Home Affairs. Further, the administrative supervision of the Divisional Secretaries has been assigned to the District Secretaries, who have no direct link with the PC (Provincial Council) system. Thus the Divisional Secretary is a government official and is directly responsible for the implementation of central functions. However, the Divisional Secretary is also made responsible for provincial subjects and functions under delegation from the Governor. As a result, the Divisional Secretary has to service the interests of both the government and the PC”.

There is no doubt that the resulting dual situation affects the performance of Provincial subjects and functions of PCs. Some PCs have attempted to use Pradeshiya Sabhas as an alternative Divisional level structure for the Divisional administration. If such tendencies continue, it is likely that the Divisional Secretariat and the Pradeshiya Sabha would enter into new areas of conflict of interest” (Ibid).

What is evident from the foregoing is the absence of a clear structural arrangement at the Provincial level; a fact that tends to cause the exercise of Devolved Powers to vary from province to province. On the other hand, clear administrative arrangements exist and have always existed at the District and lower levels. Therefore, devolving power to the District and lower levels makes significantly more sense than what currently exists.

Since it is unlikely that the political establishment at any level would resist any attempts to divest power even if is to the benefit of the People, the more realistic option is to reform the existing Center/Periphery relationship from an organizational and management perspective to make devolution work more effectively.

CONCLUSION

The 13th Amendment was certified on November 14, 1987. This means 13A has existed for nearly 34 years in its original form. It did not take long for the People to realize the ineffectiveness of devolving power to the Provinces under structural organizational arrangements formulated for such powers to operate. Even during the colonial period, the Province as the unit of administration was soon abandoned in preference for the smaller unit of the District as a more effective unit of administration.

Despite this background, the political establishment has persistently insisted that the primary unit of devolution should be the Province and they keep on attributing the insufficiency of the scope of the devolved powers as the primary cause for the ineffectiveness of the Provincial Council system. It is indeed tragic that it has not dawned on them that however much power is devolved, if it operates within the framework of a flawed organizational structure, it would continue to be ineffective.

Another issue of serious concern is that no think-tank, research institution or an institution in this country that specializes in management, has been motivated enough to address the cause or causes for the ineffectiveness of the Provincial Council system. In the absence of such knowledge the impulse would be focus on what additional powers to devolve because that is all the political establishment is interested in, not realizing that even additional powers have to operate within a flawed organizational framework that has proved to be dysfunctional.

Therefore, even at this late stage, the call by the Government should be to engage an institution that specializes in management, or any other, to study the existing structural framework under which devolved powers provided under 13A operate, and recommend how the Provincial Council system could be made more effective as a service to the People, because at the end of the day it is the People who are the beneficiaries of a more effective Center/Periphery relationship..