By P.K.Balachandran
Colombo, July 27: The All Parties Conference (APC) held here on Wednesday with the objective of getting consensus on the implementation of the 13 th., Amendment (13A) of the Constitution which devolves power to the provinces, ended in an impasse as previous APCs did.
But President Ranil Wickremesinghe used Wednesday’s forum to give an idea of what, in his view, was politically practicable.
In his view, the 13A cannot be implemented in toto given the fact that the Sinhalese, who have reservations about it, are a majority in seven of the nine Provinces of Sri Lanka. There is also a general objection to giving police powers to the Provinces as it might be used for sectarian/secessionist purposes.
In the light of these reservations, Wickremesinghe has been suggesting that parties consider restoring some powers to the PCs which had been taken away by the Central government through administrative and executive orders.
There also powers that had not been given to the Provinces by the 13A because it was drafted in haste following the India-Sri Lanka Accord of July 1987 and also because 13A was based on the Indian model.
Changes brought by administrative and executive action could be corrected by administrative and executive actions. But giving new powers to the Provinces, not mentioned in the 13A, would need a constitutional amendment. The latter would need a two thirds majority in parliament as they will be constitutional amendments.
The reversion of powers to the PCs that had been taken away by executive action will not be objected to by most parties because they had arrived at a broad agreement on this earlier when these parties were involved in drawing up a new constitution under the 2015-2019 Yahapalanaya regime.
Wickremesinghe also suggested a way in which parliament and the PCs can work together with a commonality of interests. He proposed that a members of a PC should be able to be an MPs too. But he made it clear that policy will be determined by the Centre and it would be the PCs job to implement them.
These issues were addressed by the Eelam Peoples’ Democratic Party (EPDP) leader Douglas Devananda in his presentation at the APC on Wednesday.
Devananda suggested a “three stage” solution to the Lankan constitutional question, which are as follows:
Stage I – Through Executive and Administrative Action
Stage I involves (a) retaking functions taken over by the Centre through Executive and Administrative means in the last 30-odd years; and (b) the handing over functions that were withheld by the Centre. Both could be done through Executive and Administrative means.
Stage II – Amending Certain Acts of Parliament
Stage II involves (a) amending certain provisions of certain Acts, mainly those that were enacted prior to the passing of the 13A, so that these are in line with the provisions of the 13A. (b) amending or repealing certain provisions of the Provincial Councils Act No. 42 of 1987 and Transfer of Powers (Divisional Secretaries’) Act No. 58 of 1992 to facilitate the smooth functioning of the Provincial Council system.
These amendments could be done by a simple majority in parliament of those present and voting.
Stage III – Amendment to the Constitution.
This involves repealing or amending some Constitutional provisions, mainly in Chapter XVII A, that are needed to make the 13A workable in a meaningful manner.
Agriculture & Agrarian Services
The case of “Agriculture & Agrarian Services”, This is a Provincial subject (item 9 of list 1). When Agrarian Services were taken over by the Central Agriculture Ministry, it was challenged in the Supreme Court. The Supreme Court ruled that “Agrarian Services” is a subject matter of the Provincial Councils. However, the Central Agriculture Ministry continued to hold on to the subject by changing the name of the Department to “Department of Agrarian Development”.
Turnover Tax
The Turnover Tax on wholesale and retail sales (item No. 36.1 of list 1) is the main revenue earner for the Provinces provided in the 13A of course subject to the limits and exemptions prescribed by parliament.
However, the Turnover Taxes were done away with, and the Centre began collecting the Value Added Tax (VAT) and sharing a percentage with the Provinces. The Provincial Councils were thus deprived of revenue.
Finance Commission
As per the Constitutional Provision (154R (4)), the Finance Commission’s duty is to make recommendations to the President on the principles on which funds that are granted annually by the Government for the use of the Provinces, should be apportioned between the Provinces.
However, in practice, the Finance Commission gives directions as to how the fund should be spent (say on Health, Education, Agriculture etc). This is not the intended function of the Finance Commission.
Working Space for Provincial Council Departments
The staff of the PCs were not given adequate space for working. The following Provincial Departments are functioning in the Divisional Secretary’s Offices: Provincial Department of Social Service; Provincial Department of Sports; Provincial Department of Industries; Provincial Department of Culture; Department of Provincial Land Commissioner; Provincial Department of Motor Traffic; and Provincial Department of Rural Development.
This arrangement has resulted in the employees of these Provincial Departments de-facto employees of the Divisional Secretariats which come under the Centre. But their salaries and other expenses are met from the financial allocation to the Provinces.
Transfer of Medical Personal
As per the Provincial Councils Act, No. 42 of 1987, appointment, transfer, dismissal and disciplinary control of officers of the public service of the Provinces are vested in the Governor of that Province But the Governor could delegate that power to the Provincial Public Service Commission. Therefore, any transfers to the Provinces, either from the Centre or from other Provinces have to be effected by the Governor through the Provincial Public Service Commission.
But in defiance of these provisions, the Secretary of the Central Health Ministry directly appoints doctors, Provincial Directors of Health, Deputy PDs, the Regional Director of Health Service, Deputy RDHSs, Directors and Deputy Directors of District General Hospital, Medical Superintendent of the Base Hospital. The Governor is requested to concur with their decisions and he complies.
Concurrent List
The Centre generally considers the Concurrent List as its exclusive preserve. This cannot go on.
(i) Fisheries
Fisheries beyond Sri Lanka’s Territorial Waters are the subject matter of the Centre (list II), whilst, Fisheries other than those beyond the Territorial Waters is a concurrent subject. But the Centre has enacted laws for all fisheries on the pretext that the entire fisheries sector is a subject matter of the Centre.
(ii) Indigenous Medicine
Indigenous medicine is exclusively Provincial subject, but the Centre’s Education Ministry is still controlling many matters related to Indigenous medicine, particularly Ayurveda. The Department of Ayurveda is vested with the responsibility of promoting, regulating and preserving Ayurveda and Traditional Indigenous Medicine in the country.
Handing over the functions that were withheld by the Centre
Police Powers
With regard to Police Powers, PCs should be permitted to enroll Provincial police personnel for deploying them on duties without carrying weapons, such as traffic duties, controlling crowds etc.
Implementation of the 16th Amendment
In 1988, Articles 22 and 23 were amended to make Sinhalese and Tamil as the languages of administration and as languages of legislation. Article 24 was amended to make Sinhala and Tamil as the languages of courts. This was designated as the 16 th.Amendment (16A).
The 16A has not yet been fully implemented. Action needs to be taken for the full implementation of the 16A. This could be implemented through Executive and Administrative means.
Acts needed to be amended or repealed to give effect to the above provisions
In this context the Acts to be amended are the following: Provincial Councils Act No. 42 of 1987; Transfer of Powers (Divisional Secretaries’) Act, No. 58 of 1992; Judicature Act No. 2 of 1978; Urban Development Authority Law No. 41 of 1978; Urban Development Projects (Special Provisions) Act No. 2 of 1980; Mahaweli Authority of Sri Lanka Act No. 23 of 1979 as amended; Land Grants (Special Provisions) Act No. 43 of 1979; Tourism Development Act No. 14 of 1968 as amended; Agrarian Services Act No. 4 of 1991 as amended; National Transport Commission Act No. 37 of 1991 as amended; and Fisheries and Aquatic Resources Act, No. 2 of 1996 as amended.
Stage III – The Constitutional Provisions that need to be Repealed or Amended to make the 13A more meaningful are:
The unitary character of the Constitution (Article 2) needs to be amended. Item 1 in the Reserved List ‘National Policy on all Subjects and Functions” has to be done away. The Concurrent List should be done away with and the subjects under it put in the Central or Provincial Lists.
The subjects assigned to provinces such as Education and Education Services, Agriculture and Agrarian Services, Health, Roads and Bridges…, Mines and Minerals Development etc. have to be redefined. For this, Articles 154C and 154F (1)-(3), 154 (H) and 154 (R) need to be repealed or amended.
The requirement of the Governor’s assent for the statutes passed by the Provincial Council to be done away with. The Governor should be appointed by the President with the concurrence of the Chief Minister.
The principles upon which the Finance Commission should formulate mandatory criteria for financial allocation to the provinces should be clearly provided for by the Constitution.
The Finance Commission should be able to recommend the sharing of the revenue between the Centre and the Provinces and amongst the Provinces.
The EPDP believes that discussions among political parties held earlier during the Yahapalanaya regime (2015-2019) amply showed that there is a wide measure of agreement on the above mentioned proposals.
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