13th hotly debated Amendment and beyond

Even as post-war reconstruction and the healing of the wounds of hundreds of thousands of refugees must take priority, the discussions around the future of power-sharing between the Centre and provinces must not be allowed to cool.

The defeat of the LTTE as a military force has not made the ethnic question in Sri Lanka go away. If anything, the need for a political solution has become ever more urgent. The euphoria over the military victory must not allow the debate on power sharing and devolution to die. While these discussions take place, it is useful to go back to power-sharing arrangements already in place, and examine where they fall short.

The 13th Amendment to the Constitution of Sri Lanka, passed in 1987, introduced Provincial Councils with legislative and executive powers within a unitary state. There are three lists of subjects and functions – the Reserved List, the Provincial Council List and the Concurrent List. A Provincial Council (PC) has no power to make statutes on any matter set out in the Reserved List. A PC statute on a matter in the PC List makes a pre-1987 parliamentary law on the same matter inoperative in the province if the statute states in its long title that the statute is inconsistent with such law. However, the legislative power of a PC in regard to a matter in the PC List is not exclusive; Parliament too can legislate on such matters. A parliamentary bill on a PC matter must be referred to all PCs for the expression of their views. If all agree, Parliament can pass the bill with a simple majority. If one or more PCs do not agree, and the bill is passed by only a simple majority, then the bill would become law applicable only to those provinces that agreed. But if the bill is passed by a two-thirds majority, then the law would apply even in the provinces that did not agree.

As for matters in the Concurrent List, Parliament needs to consult PCs before it takes up a bill and a PC must also do the same. In the event of inconsistency, the parliamentary law shall prevail. However, a PC statute on such a matter would make a pre-1987 law on the subject inoperative unless Parliament decides otherwise.

A significant feature of the Reserved List is its first item: national policy on all subjects and functions. This is a provision that has been abused by the Centre under successive governments. It is reasonable to expect the provision to mean that Parliament may lay down national policy even relating to a matter in the Provincial List or the Concurrent List by a simple majority, and PCs should abide by such national policy in making statutes. In view of the express provision contained in Article 154G (3) – that a parliamentary law on a matter in the Provincial List would apply in a province that has not consented to it only if the law has been passed by a two-thirds majority – there can be little doubt that Parliament cannot, in the guise of laying down national policy, legislate on a matter set out in the PC List by a simple majority without the consent of the PC concerned. In other words, national policy on matters set out in the PC List and the Concurrent List would be in the nature of framework legislation to which PCs should conform.

To take one example, under item 8 of the PC List, the regulation of road-passenger carriage services and carriage of goods by motor vehicles within the Province and the provision of intra-provincial road transport services is a provincial subject. This clearly permits a PC to set up its own transport service. The Colombo government has, however, prohibited PCs from providing omnibus services, claiming to declare "Government policy" though the National Transport Commission Act of 1991. Although it is clear from a reading of the 13th Amendment that national policy could only be laid down by an act of Parliament, successive governments have been purportedly laying down such policy by cabinet decisions and ministry circulars.

The Gunawardena Committee, appointed in 1995 to study the operation of Provincial Councils, had the following to say on how the national policy provision had been misused:

There has been a tendency on the part of Government Ministries to interpret National Policy in operational terms, thereby extending their areas of administrative action in respect of provincial subjects. … National Policy being a reserved function brings into effect a role differentiation between the Government and the Province. Thus, whereas the Government performs a directive role the Province is relegated to an implementational role. Hence there is a tendency on the part of the Government to give policy directives, marginalizing the Province from the decision making process. This leaves only a residual role which is largely operational. The tendency to view the Province in operational terms is reinforced by the nature and scope of Government-Province relations currently in place. It is a negation of the power sharing basis of devolution and does not constitute a relation for establishing a partnership between the Government and the Provinces.

Executive power
Under Article 154C, the executive power of a PC extends to matters with respect to which a PC has power to make statutes, namely matters in the PC List and the Concurrent List. However, for provincial authorities to exercise executive power, they need statutory authority. In 1987 there were at least 300 pieces of legislation in respect of matters coming under the PC List and the Concurrent List. References to the minister or a particular public officer in such laws could not be taken to be references to the governor, provincial minister or the corresponding provincial public officer in the absence of an express provision to that effect in the 13th Amendment. PCs were thus faced with the impossible task of passing statutes corresponding to all such laws if they were to exercise executive power. They did not have their own draftsmen, and had to rely on the Centre for that too. In the absence of a statute, the Centre would continue to exercise executive power in respect of the subject in question.

PCs pressed the government to enact parliamentary legislation, providing that all references in existing law in respect of matters set out in the Provincial and Concurrent Lists be construed as references to the corresponding provincial authorities. The government reluctantly agreed to make such a provision, but applicable only to the Provincial List. The Provincial Councils (Consequential Provisions) Act No 12 of 1989 was accordingly passed. There remain an estimated 200 laws in respect of matters set out in the Concurrent List that were not covered by the act. Up to now, only a few statutes in respect of such matters have been enacted by the various PCs, mainly due to lack of their own draftsmen. The Centre has not moved to prepare model statutes that could be used by PCs, as in other countries. In the absence of their own statutes, provincial authorities are unable to exercise executive power, notwithstanding Article 154C.

Problems have cropped up even regarding matters set out clearly in the Provincial List. A pre-1987 parliamentary law on such a matter will be inoperative in a province only if a statute is made. Although provincial authorities are able to exercise powers under a pre-1987 law to which the Provincial Councils (Consequential Provisions) Act applies, central authorities are also able to exercise powers if they so wish, unless and until a provincial statute is made. That is what happened in the case of the Ratnapura and Kegalle Base Hospitals that were administered by the Sabaragamuwa Provincial Council. The Centre moved to take over the administration of the two hospitals in 1994, and the attorney-general advised the Centre that in the absence of a provincial statute that provided for the administration of the two hospitals, "the control of these two hospitals legally remains with the Ministry of Health." Again, on being asked for advice on whether the minister at the Centre could exercise the power of supervision over local authorities if there was no provincial statute on the subject, the attorney-general stated: "It should also be noted that the Provincial Councils (Consequential Provisions) Act does not take away from the Minister of the Central Government the powers which he has under any Act of Parliament, which can continue to be exercised by him as well."

Clearly, the Centre has been making use of the difficulties faced by Provincial Councils in making their own statutes to encroach on areas devolved to the provinces. With regard to interference by the Centre, the Gunawardena Committee stated:

Most Government Ministries continue to conduct their operations on a pre-devolution basis. Thus Government Ministries routinely address guidelines and circular instructions direct to the respective provincial heads of departments by-passing the Provincial Ministry. Further, there has been no restructuring at the centre in terms of roles and functions in the context of devolution. It would appear that there has been a failure on the part of most Government Ministries to formulate national policies in their sectoral subjects in partnership with Provincial Councils.

It is instructive to examine in detail one significant case of a clash between the Centre and the provinces. The Agrarian Services (Amendment) Bill of 1991 sought to amend several sections of the original act that dealt with matters relating to landlords and tenant cultivators. The bill was challenged in the Supreme Court on the grounds that it dealt with matters set out in the PC List as well as the Concurrent List, and should have been referred to the PCs. The bill made no reference, in the preamble or elsewhere, to national policy being made. The Centre did not claim, even in court, that the bill sought to lay down national policy. But the court held that, "It is sufficient for present purposes that the matters dealt with in the Bill are all matters of national policy in regard to the rights and liabilities of owners and tenant-cultivators, and thus fall within [the Reserved List]." How national policy could be laid down by amending an existing law on a PC matter was not explained.

With the establishment of PCs in 1988, agrarian services was considered a provincial subject, and the councils had their own Departments of Agrarian Services and matters relating to landlords and tenant cultivators were handled by these departments. After the Supreme Court's aforesaid determination, an additional solicitor-general informed the Centre that, in view of the decision of the Supreme Court, the matters dealt with in the bill were all matters of national policy in regard to the rights and liabilities of owners and tenant cultivators and thus fell within the Reserved List. As such, the latter could proceed "on the basis that Agrarian Services is not a devolved subject". Soon, the Centre took over the provincial departments. Yet this advice was clearly wrong. Even if the Supreme Court was correct in saying that the matters covered by the bill were all matters of national policy, that did not make agrarian services a subject in the Reserved List. When national policy is declared in respect of a subject in either the Provincial List or the Concurrent List, that does not shift the subject to the Reserved List.

In 2003, in Madduma Banda v Assistant Commissioner of Agrarian Services, the Supreme Court held that matters relating to tenant cultivators came under the Provincial List. Commenting on the earlier determination, the court took the view that it would not be correct to say that the matters dealt with by the bill were all matters of national policy. The judgment was certainly devolution-friendly. Despite the clarification, PCs still do not exercise powers relating to agrarian services.

'Full' implementation
There is much talk about trying to "fully" implement the 13th Amendment before declaring it as inadequate. What exactly would this involve? This writer makes the following specific proposals. First, the Provincial Councils (Consequential Provisions) Act must be extended to the Concurrent List. This does not need a two-thirds majority. Alongside, a policy decision must be taken that the Centre would not exercise executive powers on matters in the PC List and Concurrent List. Second, national policy must be laid down by central legislation only, and that too after a participatory process involving PCs. Such policy shall be in the form of framework legislation only, and PCs would be required to work within such framework. The Centre shall not legislate for the Provinces in the guise of making national policy.

Third, the Centre has been exercising executive powers relating to the PC List and the Concurrent List. These must be handed over to PCs. This must include, for example, law and order, land, agrarian services, hospitals (that are not teaching hospitals or special purpose hospitals), schools arbitrarily classified as national schools and taken over. Fourth, subjects such as social services, relief and rehabilitation, indigenous medicine and co-operatives come within the purview of PCs, but the Centre has ministries for these subjects and uses them to control the provincial departments. Such intrusions into provincial functions must stop.

Fifth, the exercise of powers by PCs has been seriously limited due to the inadequacy of funds. The Provincial Councils Act empowers a PC to raise loans on guarantees granted by the central Minister of Finance. The Centre should facilitate action in this regard. Section 22 of the Act stipulates that foreign aid negotiated for a project or scheme in a Province shall be allocated by the government for such a project or scheme. The Centre should route all finances in respect of special projects undertaken by the Centre in the provinces, if they are on subjects under the purview of the Provinces, through the respective provincial administrations. And sixth, the provincial public service is weak and needs to be strengthened. There should be a clear demarcation of duties between those serving the Province and the Centre, but with effective coordination. This could be done without increasing staff, but through proper redistribution of human resources.

The implementation of the 13th Amendment should not be seen as the ultimate solution for Sri Lanka's ethnic crisis. The 13th Amendment has inherent weaknesses, which should be rectified in the next stage of constitutional reform. This writer suggests a Constitution that lays out a clear-cut division between the Centre and the provinces. Subjects necessary to ensure sovereignty, territorial integrity and economic unity must be reserved for the Centre, while all other subjects should be for the provinces. Powers of the Centre and provinces should be clearly set out, and powers of the provinces should be exclusive. Provincial matters, in relation to which national policy or national standards could be laid down, should be minimal. Such policies should be by framework legislation, drawn up with the involvement of the Provincial Councils. There must also be power-sharing at the Centre – for example, in the shape of a second House of Parliament.

Along with these structural changes, there must be recognition of the identities of the various communities, and Sinhala and Tamil must be recognised as official languages with parity of status. While there needs to be inbuilt safeguards against secession, there must likewise be safeguards against amending provisions relating to devolution and power-sharing without the consent of the provinces. To adjudicate on constitutional debates, there must be a Constitutional Court. Finally, all acts inconsistent with the Constitution must be declared void, thus establishing the supremacy of the Constitution.