Dr Nirmala Chandrahasan, in The Island, 11 February 2022 , with this title “13th Amendment and Tamil polity: A pragmatic approach” …… with highlighting imposed by The Editor, Thuppahi
There is much speculation in the Tamil political circles as to the usefulness or otherwise of the 13th Amendment to the Constitution and whether the Provincial Council system set up under its aegis gives a measure of power sharing or devolution of powers to the Tamil speaking provinces, or whether it is an ineffective institution which blocks out any greater devolution under the exercise of internal self- determination. This debate has been sparked by the decision of Tamil speaking parties including the TNA, to send a letter to the Prime Minister of India Narendra Modi, requesting him to use his good offices to induce the Government of Sri Lanka to implement the 13th Amendment fully, in the context that the 13th Amendment arose out of the provisions of the Indo -Sri Lanka Peace Accord of July 1987, to which treaty India and Sir Lanka are signatories.
The letter was duly signed by six Tamil party leaders and handed over to the Indian High Commissioner, triggering some protests by those opposing the 13th Amendment. This debate takes on even greater urgency in the context of the impending new constitutional proposals of the Experts Committee appointed by the Gotabaya Government to be tabled in Parliament shortly.
In order to determine which is the better view we have to take a look at the provisions of the 13th Amendment and the workings of the Provincial Councils set up under them, which have been in operation from 1988 onwards in most parts of the Country. Although the PCs as originally envisaged were intended to be set up for the amalgamated Northern and Eastern provinces, to give expression to the long standing demand of the Tamil speaking people since independence, for devolution and power sharing within a Federal framework, it was extended to the Sinhala majority provinces as well although there had been no demand for them in these provinces.
The first Provincial Council elections were held in April 1988 for the North Central, North Western, Sabragamuwa and Uva Provinces, and subsequently for the other provinces. In September 1988 the Northern and Eastern provinces were made one administrative unit in accordance with the provisions of the Indo -Sri Lanka Treaty, and in November 1988 elections were held for the North East Provincial Council. In 1990 the PC was dissolved.
Thereafter the North East Province was directly administered by the Central government. During the civil war it was not possible to hold PC elections In the northern and eastern parts of the Country. In 2006 pursuant to a Court decision the two provinces were separated. It was only in May 2008 that the Eastern Province’ Provincial Council election was held. Subsequently after the termination of the war in the north, the Northern Province, Provincial Council election was held on 21st September 2013. We can see that this institution has been operating over a long period of time but during this long period certain sections of the 13th Amendment dealing with the powers conferred on the Provincial Councils, set out in the 3 Appendixes to the 9th Schedule of List 1 Provincial Council List, are yet to be activated and are in abeyance. These Appendixes deal with the following subjects; Appendix 1, law and order which has to do mainly with Police powers and institution of a Provincial Division of the Police Force alongside the National Division of the Force. Appendix 11 Land and land settlement, and Appendix 111 Education.
Apart from the above, the Provincial Council exercises powers in respect of the subjects assigned to it, over which it has both legislative and executive powers. The subjects assigned to the Province and set out in the provincial List, List 1 include inter alia Provincial housing and construction, agriculture and agrarian services, rural development,health, land, Irrigation, roads bridges and ferries within the province, planning, and plan implementation of provincial economic plans, educational services, and supervision and administration of local government authorities. The list even includes ancient and historical monuments other than those declared to be of national importance. I mention this in the context of the Archaeological explorations being made in the northern and eastern provinces by the recently appointed task force on archeology without any representation from the Tamil and Muslim communities. There is also a concurrent list, List 111, over which both the Provincial Council and the Centre can exercise powers, these include planning and appraisal of plan implementation strategies at the provincial level, education and educational services, higher education, agriculture and agrarian services, health, irrigation, tourism, etc. In these areas there can be overlapping powers and hence disputes arise. The Provincial Council can pass statutes and exercise executive powers in respect of the subjects set out in the Provincial and Concurrent lists. These powers are largely based on the powers conferred on the States in the Indian constitution part VI. The States in India are running efficiently and providing the people with the services that they need. Tamil Nadu for example is recognised as having a very efficient administration presently under the Chief Minister M. K Stalin. The question is why the Provincial Council system in Sri Lanka is generally regarded a white elephant and as not effective in providing services to the people. For this we must examine the road blocks in the system and make the necessary adjustments, rather than just dismantling the entire system, and throwing the baby away with the bath water so to speak.
An appraisal of the workings shows that most of the stumbling blocks to the smooth functioning of the Provincial Councils are as a result of the provisions of the Provincial Councils Act no 42 of 1987, which was passed alongside the 13th Amendment. Under this Act the Governor is given powers over the finances of the PCs and is given control of the Provincial Public service as well as the Provincial Public Service commission. The 13th Amendment provides that the executive power of the Provincial Council is vested in the Governor and he acts through the Board of ministers or through members of the provincial public service. The Chief Minister and the Board of Ministers aid and advise the Governor in the exercise of his functions and the Governor Shall act in accordance with the advice except where he is required under the Constitution to exercise his discretion. In the Indian Constitution similarly in respect of the Stateschandrahas, the executive power is vested in the Governor but as in the Westminster scheme of governance the Governor acts on the advice of the Chief Ministers and is a nominal head. On the other hand, in Sri Lanka we find many instances of Governors exercising these powers like executive heads and not as nominal heads, particularly in the Tamil majority provinces and not so much in the Sinhalese majority provinces. The Governors stranglehold over the functioning of the PCs is most clearly demonstrated in his power over the finances of the province. To run the PCs money is required and this is where the Councils have been most hamstrung as the Provincial Councils Act gives the Governor controlling power over the finances of the Province. The custody of the Provincial Fund is with the Governor. The PC cannot pass any statute imposing or abolishing taxes without the consent of the Governor. More over the constitutional framework severely limits the revenue raising capacity of the PCS, as pointed out in the Report of the Parliamentary subcommittee on Centre- Periphery relations of November 2016. Hence the PCs have to depend largely on Central grants for their funds.
Another area which needs to be redesigned is the Administrative system. To run the Provincial Councils effectively the Council requires control not only over its funds but also an effective administrative system and defined areas of competence. At present the District Secretary and the Divisional Secretary as well as the Grama Niladaris come under the Central Government These officers perform administrative functions within the territory of the province but without any control from the provincial administration. Also, although the Local Authorities are under the supervisory control of the Provincial Councils as per the devolved List, most of the power at the local level remains with the Central Government.
For efficient administration of the province there has to be defined areas of competence. But in effect, the Centre has been encroaching on the areas assigned to the provincial administration. The reserved List of the Centre List 11, starts with the Rubric” National policy on all subjects”. This has enabled the Centre to take over subjects which it designates as National. To remedy this, what is National policy or National standards should be laid down through a participatory process with the involvement of the Provinces culminating in framework legislation passed by Parliament to which both Centre and Provinces should adhere. This has been proposed in the Report of the Experts Committee on the Constitution,2006. Another matter which has to be amended is the Concurrent list. Here too it has been recommended that the List be eliminated and the relevant subjects be divided between the Centre and the Province, so that they each have defined areas.
In an article of this nature, it is not possible to do a more in-depth study but I have outlined what are the important issues to be addressed if the Provincial Councils are to provide meaningful Devolution. Some of the areas which need amendment are as follows. The Governor’s role has so far tended to be an obstruction to the functioning of the PCs. The Governor should continue as a nominal head and leave the running of PC to the elected representatives. This is also a recommendation of the Parliamentary subcommittee in its 2016 report.
Hence the Governor’s powers have to be pruned and the Provincial Councils Act suitably amended. The revenue raising capacity of the PCs must be enhanced. It is suggested that they be given the power to obtain loans from foreign sources or at least have the power to administer projects financed by foreign aid. Another important issue is to put in place an administrative structure that can carry out the functions of the Provincial Council in services delivery to the people and for this the administration has to be redesigned so as to bring the District Secretary , the Divisional Secretary and the Grama Niladaris, under the Provincial administration while they still carry out agency services for the Centre. Furthermore, although local Authorities are under the Authority of the PC, as per the devolved List, this provision is being undermined by the Centre using the Urban Development Authority (UDA), Mahaweli Authority and other Central bodies operating within the Province. Hence it must be mandated that such bodies operate within the Province only with the consent and in conjunction with the Provincial and Local Government Authorities. As for the powers in respect of Law and Order and Police powers contained in Appendix 1 of List 1 the 9th schedule , they could be transferred to those PCs which request them as for example in the case of the Northern Ireland Assembly in the UK , where these powers were initially with the Centre, but there was a provision that allowed them to be released on request. In 2010 they were transferred to the Assembly under the Hillsborough Agreement. Until such time as Appendix 1, comes to be activated other provisions can be put in place, such as a policy of recruiting a percentage of the Police cadre stationed in the northern and eastern provinces from these provinces and mandate that they have an O level pass in the Tamil language so that they could operate efficiently in the Tamil speaking areas. I would suggest some similar provision in respect of some areas in the Central provinces so that the upcountry Malayaha Tamils, are also benefited. It is submitted that the Appendix 11 on land be fully implemented as it is essential for the land security of these provinces that the utilization of state land as well as alienation of such land under Presidential order be done in consultation with, or advise of the Provincial Council. The provision in Appendix 11 on the constitution of a National Land Commission with members being appointed from all 3 communities should be carried out forthwith.
I would suggest that the Tamil parties take up the proposed reforms with the Government of Sri Lanka in a negotiated process. As the Government of India was the other party to the Indo Sri Lanka Treaty, India can legitimately demand that the obligations undertaken in the treaty be carried out and the provisions of 13 A be implemented fully so that meaningful devolution is assured to the Tamil speaking people whom the Treaty specifically denotes as the historical inhabitants of the northern and eastern provinces of Sri Lanka. In line with the UNHCR resolution the Sri Lankan Government should also hold the Provincial Council elections so that these institutions can be functioning and not in abeyance as they have been for some years. The Provincial Councils in the South will also benefit from the reforms proposed as it will provide the citizens of the entire Country a stream lined system which is a service provider to the people. I note that the President in his Budget speech has advised the Tamil parties to look to their peoples’ needs and concentrate on economic development of their areas. This can best be done when there is true democracy and the people are taken into the process of consultation as to the strategies for economic development and this is best done at the local level through the Provincial Councils, and local Government Authorities, rather than through bureaucrats sitting in Colombo who have no knowledge of the local conditions or the needs of the people. In my view the Province remains the best unit of devolution at present to serve the needs of the Tamil speaking people. It gives them some measure of autonomy in their traditional areas of inhabitancy. Similarly, in the United Kingdom which is a Unitary State, Scotland, Wales and Northern Ireland which are ethnically distinct have their own Legislative Assemblies, in the case of Scotland it is called a Parliament, and exercise similar powers to those set out in the 13th Amendment.
I would like to point out that all the major changes suggested in this article respecting the Governors powers, Financing of the Provincial Councils and the Re-designing of the Administrative system in the Provinces have been recommended in the following Reports: Report of the Experts Committee advising the APRC on Constitutional matters and resolution of the National Question 2006, the Report of the APRC( All party Representative Committee) on a new Home grown Constitution 2010, Report of the Parliamentary sub- committee on Centre -Periphery relations 2016 , presented to the Steering Committee of the Constitutional Assembly which was engaged in producing a new Constitution during the tenure of the previous government. In the circumstances the proposed new Constitution could incorporate these features and there is no need to reinvent the wheel. I would submit that the Provincial Council system can be an efficient and successful system if all the short comings referred to above are eliminated and the necessary amendments made. These changes will not require any major constitutional procedures, and can be accomplished by legislation in Parliament with a simple majority, and the administrative changes by Presidential gazette notification under the provisions of the 13th Amendment itself.
*The writer was a member of the Experts Committee 2006, and a signatory to the Majority Report of this Committee.