Retention and devolution are not only keywords, but the quintessential ingredients for negotiations for the true meaning of reconciliation to materialize. The plethora of discussions and voluminous reports in fact gyrate around these two factors. In order to understand some of the practical issues, the Nation spoke to the very people in the ring of action, perhaps in two opposite corners representing the Province and the Centre.
Here are the observations of Governors and Chief Minister in conversation with Ruwan Laknath Jayakody
‘No need to exceed 13th Amendment’ – Isura devapriya, Chief Minister Western Province
Q: What constitutes the ‘meaningful’ devolution of power? Is it the full implementation of the 13th Amendment to the Constitution or is it something that should go beyond? How should police and land powers be devolved?
There is no need to go beyond the 13th Amendment. Land and police powers are already in operation. The Provincial Councils can do something beyond these matters. I am not opposed to the Central Government implementing them. As everyone knows there is a crisis at present. The 13th Amendment should be strengthened setting aside police and land powers. The Provincial Councils including the Northern Provincial Council and the Eastern Provincial Council collectively gave proposals to the constitutional reforms process (for a new Constitution). In these proposals, what the Northern Provincial Council and the Eastern Provincial Council also called for was the relevant Provincial Council to be consulted in prior, for example, when a Deputy Inspector General of Police is to be appointed to the Province. The reason for this was the highly publicized case of the gang rape and murder of a schoolgirl in May 2015 in Pungudutivu. They felt that when a serious case of corruption, fraud or murder occurred within the Province, they were not able to mete out justice. A mechanism must be put in place within the Provincial Councils where the relevant Provincial Council can intervene in the event such an incident occurs. They did not ask for powers of the Central Government. This is not a question about the appointments made. If the Central Government is taking a land within a Province for development related work, all the Provincial Councils ask is for the relevant Provincial Council to be consulted beforehand. There is nothing wrong with this. In fact, it may turn out that the relevant Provincial Council may have a better plan and project for the particular piece of land than what is being proposed by the Government. In a democracy, there is nothing wrong in seeking the opinion of the Provinces in this manner.
Q: Why then is there Opposition in the south in this regard?
The other fact the South doesn’t realize and understand is that if the North gets powers, so too would the South. Apart from the Northern Provincial Council, there are eight other Provincial Councils. They too will get the benefits and privileges afforded from the 13th Amendment. The Executive President controls and governs the Provinces through the Governor and it is not good to put an end to this. If a Provincial Council is behaving in a stubborn manner, the Governor can abolish whatever the arbitrary action taken by the Provincial Council. The Executive Presidency should not be abolished. That said, amendments and changes can be proposed with regard to issues that in actuality affect the people and the Provincial Councils.
Q: How should the concurrent list be amended?
Provincial Councils have been given subjects. It is through the Central Government that the necessary funds are allocated. Without the concurrent list, it can instead be decided what subjects are to be handed over to the Province whether it is, for example, education or health. The subjects should be given separately. The funds should come directly through Parliament instead of via the Finance Commission. The Chief Secretary of the Province can be handed over the monies. There is no issue in this. The Chief Secretary will be accountable.
Q: Are the powers afforded to the Governors excessive?
In the case of the Governor, the powers depend on the person wielding and using it. In fact, it is only in the Western Province that issues are minimal between the Governor and the Chief Minister. In other Provinces, Governors exercise powers, sometimes even beyond what has been afforded to them. In certain Provinces, there have been and there are instances where Governors have acted and act without any understanding. In certain Provinces, there are Governors who have been appointed, who are incapable of looking at the problems faced by the people in a humane way. There is however a reason why the Chairperson of the Committee on Public Enterprises is a people’s representative and not the Auditor General. This is because he or she can see both sides. The Governor wields the power of the Executive President. Whoever is the Governor must take decisions based on the public’s needs and requirements. It is not healthy for the powers afforded to Chief Ministers to be curtailed and reduced. What is required is that the Governor instead of acting directly does so, only following consultations with the Provincial Councils and the Chief Minister and the Chief Minister too, consults the Governor prior to acting directly. When discharging the functions of these offices and conducting the affairs of these offices, conflicts may arise as can be seen in the North. Therefore I don’t think that the complete reduction of the powers afforded to the Governor is suitable.
‘Police, land powers should be with govt’– Niluka ekanayake, Governor Central Province
Q: What constitutes the ‘meaningful’ devolution of power? Is it the full implementation of the 13th Amendment to the Constitution or is it something that should go beyond?
I am not of the view that the 13th Amendment should be implemented fully or that one should go beyond the 13th Amendment. I am honestly of the view that the situation at present is fine and the powers afforded are more than sufficient. Police and land powers should be with the Central Government. I am not in favour of the Provincial Councils coming to the position that the Central Government is at present. The Provincial Councils form a powerful unit. The Provincial Councils should identify the direction towards which it should move to and direct the people towards it. The powers in order to do so are sufficient. Provincial Councils at present possess powers to take decisions on their own.
However, Provincial Councils should have the right to develop the Provinces. We are talking in this instance about property of the country. In this particular instance, there should be certain amendments.
Q: Are the powers afforded to the Governors excessive?
The Governors appointed possess a lot of powers. It is a question of will. Do they wish to do something for the people and serve them? The political culture must change. Some believe that even to breathe, one needs power. We should get rid of this and move away from this idea. To act with humanness, with regard to accountability at a personal level and without shying away from responsibility is what is required.
Q: What are the obstacles to development related work done by Provincial Councils due to the present setup?
Sometimes, the funds or budgets afforded to the Provincial Councils are less and insufficient. At other times, Provincial Councils must seek the approval of the relevant line Ministries in the Central Government when it comes to development related work in the Provinces. These are hindrances to engaging in development related activities directly. Therefore there should be a discourse regarding the said matter and it must be subjected to a discussion.
Q: How should land powers and police powers be devolved? How should the concurrent list be amended?
Police and land powers should be with the Central Government. If a crisis arises as a result of arbitrary action by a Provincial Council, Parliament should be able to intervene. Skilled, intelligent and moral politicians with a correct vision are what the country requires. This must be accepted.
All these matters should not be contrary to the unitary status of the country. It must be decided in a manner fair to all. The right to life and the rights of animals should be protected. Residences of persons should not be demolished arbitrarily as otherwise like snakes and dogs bite, man too retaliates.
The rule of law must prevail everywhere without heed to party, hue or status. Administration must be properly decentralized. The path should be righteous.
Power should be wielded honestly. Giving the ownership of land outright is contrary to our culture. All this would be alright if the law was equal to all instead of differing from person to person.
Common human rights should be afforded to all. Laws of self-determination can be severe. This can prove a danger to the unitary status of the country. The law must be independent and the same to all. It must be streamlined and be without regard to various points of view. The courts should be able to summon anyone they want. If this is the case, what is the need for more power or who is in possession of it? People should be law-abiding. Attitudes must change.
‘Devolution is not delegation of powers’ – Austin Fernando, Governor Eastern Province
Q: What constitutes the ‘meaningful’ devolution of power?
There is a lot of misapprehension and misunderstanding with regard to the devolution of power. Some believe that devolution is delegation where one gives some powers to elected representatives of the people. This is not exactly devolution. For example, a head of a department will delegate tasks to deputies and assistants, the Registrar General in Colombo will ensure the tasks are done according to decisions, policies and plans taken at the Centre and the Chairman of the Elections Commission will decide on when an election is to be held, what time nominations will be called and closed and where and then delegate matters to officials at a district level. There are some who believe that the government should be deciding on who should be doing or handling all tasks. This will then take place as per the wish and fancy of the Central government. This is not devolution.
Some equate decentralization with devolution. This too is wrong. What should take place is that it must first be decided as to what functions should be devolved and to what extent. This is contained in List One of the 13th Amendment to the Constitution. For example, in terms of road construction and development, the Centre may handle roads A and B while the roads C, D and E would be handled by a Province. With regard to the National Hospital and special hospitals, this will be handled by the Centre while district level hospitals will be handled by the Provinces. Thus, to what extent to demarcate and what and what activities should be given to the Provinces is found in the Provincial List.
In this regard, there are three aspects that should be honoured and respected. The first involves the power for statute making. The ways and means of doing the latter is found in the 13th Amendment. Parliament can do so on the request of a Province and with the concurrence of the Provinces, can make such changes. Yet the changes will apply only to the Provinces which gave consent to the said exercise.
The second involves manpower. This deals with how can establishment costs be borne and how are people appointed to positions.
The third involves the financial aspect pertaining to the revenue-generating capacity and how can monies be collected.
This is not delegation.
By statute, Provincial Councils can make their own statutes. There are certain MPs who believe that Provincial Councils should do what Parliamentarians say and is in accordance with the Constitution. The distinction between decentralization and delegation must be understood and maintained.
Q: Is the meaningful devolution of power, the full implementation of the 13th Amendment or is it something that should go beyond?
In 1987, the Indo-Sri Lanka Peace Accord was signed between then Indian Prime Minister Rajiv Gandhi and then Sri Lankan President J.R. Jayewardene. The 13th Amendment is based on the Indian experience. Even today after three decades of Provincial Councils, this law is not implemented fully.
If we are to go forward, there must be some sort of devolution. Some ask for too much while others ask for too little. The political parties and the legislature must discuss and arrive at and achieve a consensus.
The main principle to be adhered to here is the principle of subsidiarity. This means that what can be done at the village level with the available resources, personnel and institutions should be done at that level. What can be done at the district level should be done by the district authorities. What can be done at the provincial level should be done by the Provincial Councils. What can be done by the Central Government should be done by the Central Government. One should not encroach on the other’s operations. Such encroachments should be avoided.
Former President Ranasinghe Premadasa, when he was the Prime Minister, wanted to show that small bridges of 25 to 30 feet in length called Poottu Palang were great. So he went to the villages to declare them open. Why? The Village Council which is now the Pradeshiya Sabha could handle this easily. Why should these be coordinated from Colombo? Why should a matter that can be handled by the Provincial Ministry of Education, be handled by the Central Government’s Ministry of Education. Producing doctors and engineers is a matter to be handled by the Centre. The construction of a 60×20 building in a village should not be handled by the Centre. In the same way, Provincial Councils cannot run a medical college.
Q: How should land powers be devolved?
On the question of land powers, what is horrendous is how many hypocrites our found in the Provincial Councils. When incumbent Prime Minister Ranil Wickremesinghe was the previous Prime Minister and incumbent Minister of Health Dr. Rajitha Senaratne was the Minister of Lands, the latter brought a Bill pertaining to land development. The Northern Provincial Council and the Eastern Provincial Council weren’t there at the time but all the other Provincial Councils led by the Chief Ministers protested the attempt to take the land powers given to them. All seven Provincial Councils went to the Supreme Court citing the violation of the right of the Provincial Councils to land administration. They won the case.
During the regime of former President Mahinda Rajapaksa, the Eastern Provincial Council and all others stated that land powers should be with the Centre. Some of those who said so are still Chief Ministers.
On the question of unrestricted land powers sans limits, the Centre won’t oppose it. There are court cases in this regard.
Provincial Councils should have land powers. It must however be noted that all parties must adhere to the National Land Policy prepared by the National Land Commission.
Q: How should police powers devolve?
On the question of police powers being given to the Provinces, newspapers and television programmes say that the Centre won’t be able to do this or that in relation to certain matters such as a coup d’etat against the State, offences related to elections, matters related to coins, currency and government stamps and offences against the President or the Prime Minister or the Speaker while adding that the police will not be able to do anything in these instances if their powers are given to the Provinces. This is to scare people that the Tamils and Muslims will misuse it. The real problem is this suspicion. When former President Chandrika Bandaranaike Kumaratunga was the Chief Minister of the Western Province, after passing a resolution in this regard in the Western Provincial Council, she sent a letter to then President D.B. Wijetunga demanding police powers. Wijetunga declined, stating that she would have to wait until the National Police Commission was appointed (this Commission is different to the Commission established under the 19th Amendment to the Constitution and was one which Premadasa wanted established in the event Police powers were to be given to the Provinces). Then when Kumaratunga became the head of the State and was in power for 11 years, she never gave police powers to the Provinces even though her own Party people were Chief Ministers. So when they are Chief Ministers they ask and when they are the President they don’t give. This is wrong.
There are certain restrictions when giving police powers to the Provinces. In the relevant schedule in the Constitution regarding law and order, only the national police have the power. It is the Centre that makes the call on the amount of arms (including guns) given to the Provinces, the amount of ammunition given and the facilities afforded for law and order. The money is allocated by the Centre from the national budget.
There should be negotiations regarding how to devolve police power, to what extent and how to control, rather than making the Provincial Councils wait when the Centre doesn’t want to give it up.
The Centre versus Provincial problem doesn’t have any basis. Some Provinces want total powers without restrictions while the Centre won’t give powers even subject to restrictions. In reconciliation, the most important part is to talk, to have a dialogue. This is not taking place.
Q: Are the powers afforded to the Governors excessive?
Some powers afforded to the Governors are a little too excessive. Yet, one cannot vest the control with the Provincial Councils without the Governors’ interventions. For example, in the case of appointments to the Provincial Public Service Commission, if the power to make appointments is solely vested with the Chief Minister and the Leader of the Opposition of the particular Provincial Council, how will the Commission be independent? They will split the seven appointments among each other on the basis of a 5:2 (five for the Chief Minister) or 4:3 (four for the Chief Minister) ratio. They will appoint their own choices on the basis of political, party, religious, caste, creed and ethnic concerns and biases. For example, the Chief Minister may appoint a financier of his or her electoral campaign and party. The Commission from the inception will then have a bias. Some powers should be there for the Governors as it is only then that these aforementioned biases are reduced by having a Governor appointed by the Centre.
Instead of this subjective type favouritism, the Governor is apolitical. However, whether politicians should be appointed as Governors is a matter that has to be reviewed.
There is a stipulation in the case of India, where Governors are not allowed to be Governors where they are registered as electors. This is a good thing. Yes, I agree that the Governors have too much power. Yes, I agree that there must be certain changes.
Yet, banning the Governors or making the Governor a cosmetic item is not a good thing. The Governor should not be a cosmetic Governor. There is no value in it.
Q: How should judicial power be devolved?
Already, judicial powers are devolved. Although High Court Judges are appointed by the President, High Courts are given the judicial review of certain given areas of jurisdictions.
Q: How should the concurrent list be amended?
Regarding the question of the Provincial Councils and the Centre, a decision must be taken on what powers are to be reduced and how are the functions to be allocated. There is a definite need for review. Part must go to the Centre and part to the Provinces. This is a national issue.
There is also the possibility of not having a concurrent list. It is better to have clarity rather than the duplicity of functions. There must be a solution regarding the divisions. The concurrent list can be given up. However, they are weaknesses to having the concurrent list and also to wiping it out. There is no perfect law in the land including the Constitution. The world is imperfect. It is like the question of the gallows. When certain crimes of a heinous nature are reported, there is one group that calls for the implementation of the death penalty and another which however monstrous the crime opposes capital punishment. One must strive to have the best solution.