CA Chandraprema, in The Island, 23 & 24 November 2016,
“The purpose of the Subcommittee on Centre Periphery Relations appears to be to empower the provinces to such an extent that the central government is rendered irrelevant. What they envisage is a nominal central government with nine virtually independent provinces.” (Analyses of the other subcommittee reports will appear from Monday onwards.)
Part ONE: Constitutional Assembly: Analysis of Centre-Periphery Relations Report
The Provincial Governor: The report submitted to the Constitutional Assembly by its Subcommittee on Centre-Periphery Relations focuses on several areas such as the role of the provincial Governor, and the fiscal, administrative, land and police powers of the provincial councils. What the subcommittee report says about the institution of the provincial governor is plain and direct as follows: “The present powers of the Governors are excessive and should be curtailed. The Thirteenth Amendment and the Provincial Councils Act No. 42 of 1987 vests a multitude of powers to the unelected Governor to intervene, control and regulate the executive and legislative functions of the provinces. The position of the Governor with such powers represents central dominance in the province…”
The subcommittee has observed that according to the Constitution, the executive power of the Provincial Council is exercised by the Governor. The Chief Minister and the Board of Ministers are only supposed to ‘aid and advise’ the Governor in the exercise of his functions and the Governor, in turn, is supposed to act in accordance with such advice except in circumstances where he is required to exercise certain functions at his discretion. In the exercise of these functions, the question whether any advice was tendered to him, and if so the nature of such advice, is not a matter which can be questioned in any court. In the event that a dispute arises as to whether any matter is or is not a matter in respect of which the Governor could act in his discretion, the decision of the Governor shall be final and the validity of such decision cannot be called in question in any Court.
In the subcommittee’s opinion, this gives the Governor unfettered power in the exercise of executive functions of the Provincial Council. Article 154C of the constitution provides that the Governor shall exercise executive power ‘either directly or through the Board of Ministers or through officers subordinate to him’. The term ‘officers subordinate to him’ refers to the officers of the Provincial Public Service. The subcommittee observed that hence, the provincial executive does not even have power over its public officers who are expected to implement the decisions of the Board of Ministers. The provincial public officials are obliged to comply with directives of the Governor and as such, they cannot be expected to be loyal to the Provincial Executive. As a result, the Secretaries of the Provincial Ministries, who are to carry out the executive functions as directed by the respective Ministers, have been controlled by directives from the Governors. There have been instances that the Governors were insisting on their prior approval being obtained even to conduct a training programme!
Provincial Governors’ powers: Moreover, a statute cannot be even introduced into the Provincial Council for its consideration without the recommendation of the Governor if such statute has financial implications. Every statute made by a Provincial Council shall come into force only after that statute receives the assent of the Governor. The Governor can return the statutes to the Provincial Council without assent and recommending reconsideration on the grounds that one or more of the provisions are inconsistent with the Constitution. The Subcommittee on Centre-Periphery Relations has rhetorically posed the question: ‘The President at the national level does not have this power with regard to the enactment of laws by Parliament. Why this at the provincial level?’
If the Provincial Council enacts the statute without incorporating the recommendations of the Governor and sends it back for his assent, it is not compulsory for the Governor to grant his assent. If he does not agree with the statute, the Governor has to forward it to the President to refer it to the Supreme Court for a determination on the constitutionality of the statute. However, the 13th Amendment did not provide a time limit within which the President should forward it to the Supreme Court. As a result, whenever the Governors were of opinion that certain provisions of the statutes were inconsistent with the constitution; such statutes have not been subjected to the procedure for the determination of constitutionality as laid down in the constitution.
The subcommittee also observed that the Provincial Councils Act vests the Governor with powers of appointment, formulation of schemes of recruitment and codes of conduct, transfer, dismissal and disciplinary control of officers of the provincial public service. Although there is provision for a Provincial Public Service Commission this body too functions under the Governor who appoints the members of that body. The Governor has the power to alter, vary or rescind any appointment, order of transfer, or dismissal or any other order relating to a disciplinary matter made by the Provincial Public Service Commission. Accordingly, the Governor’s power in this regard is analogous to that of an appellate body. It is evident from these provisions that the authority to control public servants of the province is vested in the Governor. The provincial Governors thus enjoy power which even the President of the country does not exercise with regard to the public officers at the centre.
Subcommittee lost its bearings: The Subcommittee has recommended that the above stated powers of the Governor be abolished and the Governor be made a nominal head, who should be constitutionally required to act on the advice of the Chief Minister and Board of Ministers, except in so far as he is constitutionally required to act at his discretion. They also recommended that the requirement of the Governor’s assent for statutes passed by the Provincial Council be done away with and the present parliamentary practice of a bill being declared an Act of Parliament upon receiving the Speaker’s signature be adopted in respect of the Provincial Councils with the Chairman of the PC signing the statutes passed by the Provincial Councils. The Subcommittee recommended that such statutes could be subject to judicial review by a Constitutional Court which they have recommended be set up. They have also suggested that even if the Constitutional Court has ruled in favour of the constitutionality of a Bill in pre-enactment review proceedings, that should not be a bar to subsequent post-enactment review proceedings.
It was further recommended that the power of the Governor in relation to statutes that have financial implications should be repealed and the approval of the Board of Ministers deemed sufficient for introducing financial bills in the provincial council. The subcommittee recommended that while providing for a nominal office of Governor, the provisions relating to the central government’s power to bring a provincial government under direct rule for any actual or threatened break-down of law and order in the province, should be strengthened. However, such decision should be subject to judicial review by the constitutional court within a specified period. The subcommittee clinched their argument for dismantling the powers of the Governor by stating that in a situation where the elected Executive Presidential system is being dismantled in the country, it does not make sense to perpetuate what they called an ‘executive governor’ system – unelected at that – in the provinces!
In the report they submitted to the Constitutional Assembly and the recommendations they made, it is quite clear that the Subcommittee on Centre State Relations has acted as if they were discussing the executive powers of sovereign nations instead of provincial administrations in a sovereign nation. Under the provisions of the 13th Amendment, the provincial Governor is the principal figure who acts as the link between the central government and the provincial administration. The provincial councils system in our country was based on the Indian model and the powers and role of provincial Governors in our constitution is almost exactly the same as that of state Governors under the Indian constitution and if there is any divergence, that is only because the Indian state Governors have even more powers that our provincial Governors.
Everything that the Subcommittee on Centre- Periphery Relations has objected to in the role of the provincial Governor – the fact that the executive power of the State is vested in the Governor, that he will exercise these powers either directly or through officers subordinate to him, that the council of ministers exists only to ‘advice’ the governor in the exercise of his functions, that no one can question a decision made by the governor regarding any matter requiring his discretion, that no court can question whether a Governor acted in accordance with the advice given to him by the Council of Ministers, that all executive action in the state is taken in the name of the Governor, that laws passed by the state legislatures take effect only when the Governor signs them, that the governor can send the Bills back even after they are passed while recommending changes, that if his recommendations are not carried out the governor can withhold his ascent and refer the matter to the president; etcetera, etcetera, are all the same in the Indian constitution as well.
The Indian constitution: In India, the states which function under Governors empowered by such provisions are much larger than most nation states in the world. Indeed the whole of Sri Lanka is comparable to some of the smallest states in India. In India, the Haryana state which has a population of over 26 million qualifies for only five out of 233 Rajya Sabha seats. If we were a state of India, we would barely qualify for four seats in the Rajya Sabha. In such a situation a subcommittee appointed to look into devolution in Sri Lanka has come up with a proposal that is a blueprint for nine independent states. If one removes the powers the provincial Governor has at present, there is nothing to stop the provinces from becoming independent states. To cap it all, the Subcommittee on Centre-Periphery Relations has recommended that even after taking away all the above mentioned powers of the provincial Governor, he should be appointed only with the concurrence of the chief minister of the province.
This will enable every chief minister in Sri Lanka to appoint one of his stooges as Governor and do just as he pleases. What is remarkable is that in discussing the devolution of power in a situation where the existing system of devolution was based on the Indian model, the entire report of the Subcommittee on Centre-Periphery Relations has not mentioned India even once! The Sub committee has recommended doing away with the existing powers of the provincial Governor in a situation where some of the most important safeguards available to the central government in India vis a vis the states have not been given to the central government in Sri Lanka by the 13 th Amendment. In India, parliament has the power to legislate on any matter on the ‘state list’ if two thirds of the members of the upper house of parliament – the Rajya Sabha – present and voting pass a resolution approving such intervention.
The Rajya Sabha is made up of representatives of the Indian states according to a constitutionally mandated formula. What this means is that in India, if the representatives of the states feel that intervention is necessary in a certain state, parliament can override the state legislature in that state and pass legislation on any of the powers reserved for the states. Such intervention will last one year after which it can be renewed for so long as is necessary – even for perpetuity. (Article 249 of the Indian Constitution) This is one of the most important provisions designed to safeguard the Indian union. Note also that the majority needed is two thirds of those present and voting – not two thirds of the whole number of members. Thus in India, the Hindi speaking northern states can mandate intervention in a separatist southern state if necessary. But such a safeguard does not exist in Sri Lanka.
In India, one of the most important safeguards that the centre has is the ability to impose ‘President’s rule’ on a state if necessary. What happens in such circumstances is that President takes over the executive functions of the state with its legislative functions being taken over by parliament – in which event parliament in turn can empower the president to make laws for that state. In India, every such proclamation will have to be approved by parliament within two months and will last up to six months and this can be continued for up to three years with approvals being granted by both houses of parliament once every six months with simple majorities.
In Sri Lanka, however, any imposition of president’s rule on a province has to be approved by parliament within fourteen days and can last for two months with a maximum period of one year if the resolution is approved by parliament once every two months. Thus we see that even though our system of devolution is based on the Indian constitution, we don’t have the same safeguards as the Indian central government. It is in such circumstances that the Subcommittee on Centre-Periphery Relations is suggesting that we do away with the powers of the provincial Governor. In India, the report of the Sarkaria Commission on Centre State Relations of 1988 observed in relation to the position of state Governor that it functions as a ‘bridge’ between the centre and the State and that the Governor is the ‘sentinel’ of the constitution. If Sri Lanka is to remain as one country after this constitutional reform process is over, the institution of provincial Governor should not be touched. It should on the contrary be strengthened.
Part TWO: Land, Police, Fiscal and Administrative powers. Constitutional Assembly: Analysis of the Centre-Periphery Relations Report
It was discussed in the Subcommittee on Centre Periphery Relations of the Constitutional Assembly that the ‘unitary character’ of the constitution was an ‘impediment’ to the effective functioning of the Provincial Councils and that the present constitutional framework, gives ‘undue advantage’ to the centre. The list of concurrent powers to be shared by the centre and the provinces, the powers of the central government over the formulation of national policy, the powers of the provincial Governors and the fiscal control of the provincial councils by the centre were all cited as factors inhibiting the devolution of power. The Subcommittee observed that the three levels of government, the Centre, the Provincial Councils, and the Local Authorities at each level is subject to the authority of the layer above it, and therefore the centre-periphery relationship is ‘akin to a hierarchical pyramid structure’ rather than an interrelationship between ‘distinct spheres of authority’.
The subcommittee recommended that centre periphery relations should be guided by the principle that each tier of government is distinct. They recommended that the concurrent list in the constitution be done away with and that any subject not specified in either the central government or provincial list should automatically be given to the provinces. It was also recommended that the power of the central government over national policy relating to all subjects be done away with and provision should be made for a consultative mechanism involving the participation of provincial representatives in the formulation of national policy.
Police powers: The sub-committee discussed the need to grant to the provinces the police powers set out in the provincial council list and in Appendix 1 of the present constitution. Under the provisions of the 13th Amendment relating to the police (which have never been implemented) the Sri Lanka police force will have a national division and nine separate provincial divisions which will all have separate police commissions to deal with recruitment, promotion, transfer and disciplinary control of the police personnel under them. The IGP will appoint a DIG for each province, with the concurrence of the respective chief minister. The number of police officers in each provincial division will be fixed by the provincial administrations with the approval of the president, having regard to the area, number of police stations and population of the province. The type and quantity of fire-arms for the provincial police divisions shall be determined by the National Police Commission after consultation with the provincial police commissions.
The central government of Sri Lanka has control over the training of both the national and provincial divisions of the police force. The provincial police force will be uniformed while the national division shall ordinarily be in plain clothes but they may wear uniforms when performing duties in respect of public order in a province. Thus, the visible law enforcement authority in all provinces will be the provincial police force. The DIG of the province is responsible to and under the control of the chief minister of the province in respect to the exercise of police powers in the province. The national police has jurisdiction over offences against the state, offences against ministers, MPs, public or judicial officers, against the armed forces, and offences relating to elections, currency and international crimes. All other police functions will be handled by the provincial police forces. The IGP can refer an investigation to the CID only after consulting the chief minister of the province and the Attorney General.
It should be borne in mind that the police powers in the 13th Amendment were modelled on the Indian constitution and the police powers of the provinces are similar to the police powers of the Indian states. However the Indian states are much larger and more populous than most nation states. Even the 200 million plus state of Uttar Pradesh has only one police force as does the 75 million plus Tamil Nadu. A scheme that suits a country the size of India will not work in a country as small as Sri Lanka which is why the police powers in the 13th Amendment were never implemented by any government. However in a departure from the provisions laid down in our constitution which places the provincial police force directly under the chief minister, the Subcommittee on Centre Periphery Relations recommends that it be brought under an independent commission as it is at the national level.
Land: The Subcommittee has stated that the provincial authority should have control over state land within the province and observes that Appendix II to the constitution limits provincial rights in this regard and gives authority to the centre to decide on many things including the final assent for the disposition of land. They also observed that there was ambiguity with regard to land as it is mentioned in the provincial councils list as well as in the central government list (along with Rivers and Waterways). The subcommittee envisaged the transfer of all land powers to the provinces and they recommended that in the using state land, the provincial council should adhere to the policy guidelines of a land commission comprised of representatives of both the centre and the provinces with regard to issues such as forest cover, agricultural sustainability, land fragmentation, landlessness, etc.
However, no decision of the land commission would be imposed on any province without the consent of the representatives of that province. Furthermore, the taking over of any state land under existing Acts of Parliament like the Mahaweli Act, UDA Act, Forest Ordinance, Tourism Act, etc. could be carried out only with the concurrence of the respective provincial council. According to the subcommittee report, the way the central government could obtain land for their purposes would be to ‘require’ a provincial executive to release any piece of state land for a purpose coming under the central government in which event it shall be the ‘duty’ of the provincial executive to release that land to the central government.
Land power: There is another significant area where the 13th Amendment has failed to provide Sri Lanka with the safeguards available to the Indian central government. According to item number 18 in the provincial councils list of the Sri Lankan constitution, the provincial councils have ‘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’. Appendix II of the ninth schedule of the Sri Lankan constitution states that if the Sri Lankan central government needs to utilize a piece of land in a province for a purpose coming under its purview, it has to ‘consult’ the provincial council with regard to the use of that land. Thus if the provincial land powers in the Sri Lankan constitution are implemented, whether the central government has any power over land at all will be decided by the Supreme Court depending on how they interpret the word ‘consult’.
In India this problem was settled quite early on. If the Indian central government needs to use a piece of state owned land in any of their states, they can do so without so much as a by your leave to the state government thanks to the landmark Supreme Court judgement in The State of West Bengal v Union of India (1962). In this case the Indian central government proposed to acquire certain lands bearing coal deposits in the State of West Bengal. The West Bengal government petitioned the Supreme Court claiming that the central government did not have the power to acquire state owned land without the concurrence of the government of that state.
In support of that claim the State of West Bengal quoted Section 9(1) of the Coal Bearing Areas (Acquisition and Development) Act, of 1957 which clearly stated that the Indian central government could take over coal bearing areas but in the event where the earmarked land belongs to a state, the state government concerned has to be ‘consulted’ before the proclamation announcing the takeover is issued. However the Indian Supreme Court simply dismissed Section 9(1) of the Coal Bearing Areas (Acquisition and Development) Act, of 1957 saying that ‘consultation’ does not necessarily mean consent! Thus even in India, it needed a Supreme Court judgement to determine what the powers of the central government were in relation to land.
This is one of the pitfalls of borrowing models that had been designed for other countries. If we borrow other people’s laws, we have to borrow the litigation over those laws as well. But our 13th Amendment failed to incorporate the decision handed down in The State of West Bengal v Union of India and now we have to reinvent the wheel by getting our own courts to interpret what the word ‘consult’ means in relation to the land powers of the central government vis a vis those of the provinces. This is not a satisfactory state of affairs at all.
Fiscal powers: It was observed by the subcommittee on Centre Periphery Relations that the devolution of power without real fiscal devolution is meaningless. At present, says the subcommittee, allocating money to the provincial councils is at the sole discretion of the centre and that this is one of the ‘main flaws’ in the 13th amendment. The provinces have very limited financial resources and depend on annual grants from the central government to meet their expenditure. In the budget for 2015, the allocation for all nine provincial councils was 12% of the total govt. expenditure. The subcommittee also observed that the capital expenditure allocation is granted with the expenditure heads specified by the central government. For example under the allocation to the health department, the amount to be spent on building repairs and the district in which it should be spent will be specified. The provincial council only has the discretion to decide the hospitals to which the repairs are to be effected in that district.
In a further restriction of the fiscal independence of the province, the provincial council cannot pass statutes imposing or abolishing any taxes without the consent of the Governor. In addition to this the subcommittee observed that there are limitations on obtaining loans and investment and on administering projects financed by foreign aid and investments. The sub-committee recommended that the constitution should clearly demarcate the taxation and revenue powers of the three tiers of government, and ensure that any administrative collection mechanism does not derogate from the financial power of the respective tier of government.
Provincial administration: On the administrative front, the subcommittee on Centre-Periphery Relations observed that agencies of the central government have separate offices at provincial level or by-pass the provincial level completely and have their branches at district level and that the District and Divisional Secretaries perform administrative functions within the territory of the province without control or supervision by provincial authorities. The District Secretary coordinates the development activities in the district, including central government activities, provincial functions and to some extent nongovernmental projects. The subcommittee recommended that that the district and divisional administration be made a part of the provincial administration with district and divisional secretaries being re-designated as Additional Chief Secretaries and Deputy Chief Secretaries in the provincial administration respectively.
Declaring most of the public service as an ‘All Island Services’, is another impediment to the devolution of power as stated by the subcommittee. The all island services should be limited to a few services such as the Sri Lanka Administrative Service, Sri Lanka Engineering Service, Government Medical Officers Service, Sri Lanka Police Officers Service, Sri Lanka Scientific Officers and Sri Lanka Accountants Service. The subcommittee also recommended that the provincial public service should be brought under independent provincial public services commissions similar to the National Public Service Commission to which members will be jointly nominated by the chief minister and the leader of the opposition of the Provincial Council.
The subcommittee held that as in the case of the central government, the board of ministers of the province should have the power to determine all matters relating to officers of the provincial public service, including the formulation of schemes of recruitment and codes of conduct and the principles to be followed in making promotions and transfers etc. (This power is vested in the provincial governor at present.) The subcommittee noted that another constraint to the effective functioning of the provincial public service is the need to obtain the approval of the Treasury for the creation of cadre. They recommended that the provincial public services commission of each province should have the power to decide the cadre need of the respective provinces, including the cadre need of the local authorities, based on common criteria applicable to all the provinces. (How practical this recommendation is in view of the limited resources available to the Sri Lankan state was not discussed by the subcommittee.)
It can be seen by the proposals made by the Subcommittee on Centre Periphery Relations that what they envisage are nine virtually independent provinces in Sri Lanka which enjoy powers far in excess of those available to the Indian states. The governor will be a nominal head of province doing the chief minister’s bidding. The day to day police functions, state land, the public administration mechanism, and a good part of the fiscal powers, will all be in the hands of the provincial councils. The powers that the central government will have were not elaborated on by the subcommittee but by examining what they had omitted to mention, it can be surmised that subjects like foreign affairs and defence will remain with the centre. However, the centre will be so weakened by the centrifugal tendencies unleashed if these proposals are implemented, that they will not have the capacity to resist any attempt by a province to break away.
One thing that can be noticed in the Subcommittee on Centre-Periphery Relations report is that they have not discussed or made any recommendations about that staple in devolution discussions over the past three decades – provisions for two or more provinces to amalgamate and form a single provincial council or the merger of the northern and eastern provinces. That will no longer be necessary because the centre will be so weakened that there will be no force to resist anything that two or more provinces decide to do. As we pointed out in yesterday’s article, our system of devolution though modelled on that of India, started off without some of the most important safeguards available to the Indian central government.
The purpose of the Subcommittee on Centre Periphery Relations appears to be to empower the provinces to such an extent that the central government is rendered irrelevant. What they envisage is a nominal central government with nine virtually independent provinces. The reason why the Subcommittee has taken care not to mention India even once in their report, is because any reference to India will be a disadvantage to the project they have in mind. The Indian constitution has been designed in such a way that the Indian union can maintain its hold on the states. In recent decades, one or two states like Tamil Nadu became more assertive and have been suggesting constitutional changes that would give the states more autonomy. But even Tamil Nadu assertiveness has its ups and downs as can be seen from the fact that they have been down rather than up after Modi formed a government on his own.
Tamil Nadu may talk aggressively about Sri Lanka but they will never dare talk to their own central government in that manner, especially if the central government has been formed without their help. Tamil Nadu leaders neve, ever use some of the phraseology routinely used by the TNA such as ‘self determination’. The way the Indian constitution makes provision for the union to keep the states on a leash is a fascinating study in itself and we will deal with that after this series of articles on the Constitutional Assembly subcommittee reports. In any event, the report of the Subcommittee on Centre-Periphery Relations can hardly be considered a serious effort at constitution making. It’s more like a wish-list submitted by professional separatists.
SUB–COMMITTEE ON CENTRE PERIPHERY RELATIONS MEMBERS OF THE COMMITTEE
1. Hon. Dharmalingam Sithadthan, M.P. (Chairman)
2. Hon. Dilan Perera, M.P.
3. Hon. H.M.M. Harees, M.P.
4. Hon. Dullas Alahapperuma, M.P. –resigned from the Sub Committee
5. Hon. Bimal Rathnayake, M.P.
6. Hon. Vidura Wickramanayaka, M.P.
7. Hon. Mylvaganam Thilakarajah, M.P.
8. Hon. Sanath Nishantha Perera, M.P.
9. Hon. S.M. Marikkar, M.P.
10. Hon.(Mrs.) Rohini Kumari Wijeratne, M.P.
11. Hon. Wijepala Hettiarachchi, M.P.
EXPERTS TO THE COMMITTEE
Prof. A.M. Navaratne Bandara
Mr. N. Selvakumaran
Mr. S. Thavarajah
Mr. Palitha Abeywardane
Mr. Asoka Gunawardane
Mr. Winston Pathiraja
Mr. Lal Wijenayake
Ms. Chamindry Saparamadu
Mr. Suren Fernando