By Austin Fernando

Prime Minister Mahinda Rajapaksa has recently said that the Provincial Council (PC) elections will be held when the ground situation is conducive. Minister Sarath Weerasekara insists on scrapping the PCs. Ambassador Nalin de Silva has opined that in the absence of elected PCs, the 13th Amendment to the Constitution (13A) stands abolished.

There are three competing standpoints: (a) Legally, the PM believes the 13A is intact; (b) Conceptually, Minister Weerasekara believes 13A is live, but must be “killed”; and (c) Cavalierly, Ambassador de Silva thinks it is already dead! Thankfully, sanity prevailed when Sagara Kariyawasam MP, following the PM’s statement said: “The 13A remains part of the Constitution, and elections will have to be conducted” and “PCs cannot be indefinitely run by Governors and officials.”

13A and devolutionary dynamism

Against this background, I read an article by my respected and adored guru, Professor Gerald Peiris. He urged abolishing the PCs and replacement by constitutional devices, to ensure: (a) genuine power-sharing, and (b) statutorily protect Sri Lanka’s sovereignty/ territorial integrity. He revisits the Dutch and British times, articulating a rich historical analysis of how the provinces evolved. There is other analysis as regards the provinces like that by Professor Madduma Bandara.

Although no government implemented the 13A in full, leading politicians and political parties, undecided or against or silent on 13A, attempted to reinforce devolution by creating Regional Councils (RCs) between 1997 and 2000.

President Mahinda Rajapaksa internationally validated 13A by incorporating it in the UNHRC Resolution in 2009, which the Yahapalana government repeated in the Co-sponsored UNHRC Resolution in 2015. Therefore, I hope PM Mahinda Rajapaksa and yahapalana leaders may not conscientiously demand the repealing of 13A.

These developments are not discussed by Prof. Peiris, while I consider them as important, because they are attached to international diplomacy, the All-Party Conference recommendations, and other influences and consequences.

Anyway, conceptually devolution has come to stay. It has also inputted political dynamism. The Tamil political parties, India, internationals and Diaspora groups, and our political leaders across the divide (excepting President Gotabaya Rajapaksa, who was apolitically inclined then) have virtually contributed to the creation of this status. However, due to the continuity requirement, President Gotabaya Rajapaksa’s stand is appreciated.

One formidable influencing factor is India. She has shown interest in our devolution under successive governments. This has been clear from the policies of Prime Ministers Rajiv Gandhi, Manmohan Singh, and now Narendra Modi, who has made his position clear to President Gotabaya Rajapaksa and PM Mahinda Rajapaksa. (See: “Crisscrossing 13A Abolition”- November 13^th, 2020 – The Island)

These interventions are probably forgotten by our leaders who were instrumental in enhancing devolution. We hardly hear from them about such interventions nowadays. The younger generation of first timers in Parliament who support the 13A erasure proposition are either unaware of this past or being conformist.

That the aforesaid leaders did help enhance devolution does not mean that there were no hostile moves to undermine it. A case in point is the late President R. Premadasa’s Transfer of Power Act, through which the District Administration was disturbed, and the Divisions were institutionally brought under direct central control, at the expense of the powers of the PCs. Similarly, the lowest village level functionaries, i. e. Grama Niladharis were brought under the Ministry of Home Affairs by President DB Wijetunga.

Reinforcing devolution

One notable attempt to enhance devolution was the ‘Proposals for Constitutional Reforms’ of 1997, mooted by President Chandrika Kumaratunga. The then ministers Mahinda Rajapaksa, Chamal Rajapaksa, Nimal Siripala de Silva, GL Peiris and Susil Premjayanth were supportive of it. But they would not talk about it today!

The second attempt at the reinforcement of devolution was the Bill to repeal and replace the Sri Lankan Constitution in August 2000. The above-mentioned personages were in power and supported the changes proposed. Now, they are silent on that.

I wonder whether the former Chief Ministers who are MPs now, such as Susil Premjayanth, Chamara Sampath, Shan Wijaylal de Silva, CV Wigneswaram, and Nazeer Ahamad and former Provincial Governor Seetha Arambepola are supportive of reinforcing devolution.

Chandrika Kumaratunga, when she was the Chief Minister of the Western Province, having passed a PC resolution, ably supported by Susil Premjayanth, Felix Perera et al, vehemently demanded the devolution of police powers; but she did not care to grant the PCs police powers after becoming the President. Since there is no LTTE conflict now, I wonder whether Minister Susil Premjayanth will call for devolving police powers to the provinces now.

Before the Romesh de Silva Committee to formulate a new Constitution was appointed, there were proposals made to amend the Constitution. The 13A is material to devolution and PCs. Even 17A, 18A, and 19A which mostly dealt with governance did not attempt changes to 13A.

The constitutional reform proposals which took devolution seriously were the ones presented in 1997 and 2000, and the Steering Committee proposals (post-2015). The latter did not lead to a formal consensus. One important difference with the current exercise is that the yahapalana project had a Steering Committee of the Constitutional Assembly, whereas the current exercise is a government affair without any parliamentary participation. The worst way to formulate Constitutions! This could be due to the two-thirds majority of the incumbent government in the Parliament.

Out of the six Sub Committees appointed by the Yahapalana Steering Committee- some headed by currently pro-government politicians such as Ministers Premjayanth (Public Service Reforms), Bandula Gunawardena (Finance), and from the Opposition Sagala Ratnayaka (Public Security), MP D Siddharthan (Center – Periphery Relations), four were related to devolution. The other two were on Judiciary and Fundamental Rights. I believe the current committee deliberating on a new Constitution could gain from these Sub-Committee Reports, without reinventing the wheel if it so wishes.

Years 1997 and 2000 devolution proposals

The 1997 and 2000 constitutional reform proposals are available in print. Very recently, Professor Gerry Peiris has discussed the evolutions of Provinces, probably because he was concentrating on the historical progression. Since this evolution is dynamic, I may discuss some selected aspects (due to space constraints) of reinforcing devolution. It is because the 1997 and 2000 proposals are revolutionary as regards devolution. Although the 1997 document was an internal one, the 2000 document had Opposition inputs provided by eminent persons like KN Choksy.

I refer to the Table below which shows a comparison of a few selected aspects for reinforcement.

What concerns me is the stoic silence of seniors in the government, having agreed to support different devolutionary approaches, as evident from the Table. I do not wish to discuss the nitty-gritty of land powers for instance although there are questionable issues i. e. the attempt by the 1997 proposals to abolish the National Land Commission; it was corrected in the 2000 proposals. I will limit my presentation to the issues in the Table.

PC Boundaries

Let us look at PC boundaries. Some critics are against the existing boundaries of North and East Provinces, for reasons such as sovereignty and national security. But in 1997 the then government proposed to amalgamate two districts of Eastern Province with the Northern Province subject to approval by the people at a referendum in two districts. In 2000, they agreed to the creation of the North-East Province after a referendum, as proposed by Indians by way of an option, having staged street protests against it.

They were willing to establish a Muslim-dominated South-Eastern RC, pushing aside the Sinhala majority in Ampara Polling Division to the Uva RC, disturbing the demographic status of both RCs. They knew that the remaining Sinhalese and Tamil community, nearly 40% of the population in the Ampara District, would become a split minority in the new RC. The same fate would have befallen the North Trincomalee Sinhalese population, who were not offered the benefit of joining the North Central RC as in the proposed Ampara-Uva amalgamation. Having been the Governor of East, I am aware of such sensitivities. So much for the politicians who consider themselves the savior of the Sinhalese in the North and Eastern Provinces. In a way, one may expect the indigenous Eastern Muslim politicians to clamour for the South Eastern RC in return for the votes cast for the 20^th Amendment.

Governors

The appointment of Governors is a presidential prerogative under 13A. But the 1997 proposals sought to dilute it by subjecting it to the advice of the Chief Minister. The Chief Minister’s involvement was one issue used by these politicians against devolving police powers to a Provincial Police Commission. The appointing prerogative was further restricted in the 2000 proposals by making it conditional to the concurrence of the Chief Minister, consultation with PM and approval of the Constitutional Council. That proposal, if implemented, would certainly have an averse to the powers of the incumbent President.

Of course, these changes in 1997 and 2000 will be attractive to minority party politicians. If the 2000 proposals were adopted, the names of those to be appointed Governors would have to be submitted to the Parliamentary Council, for its observations and endorsing the President’s choice. The removal of Governors in the 2000 proposals was the same as under 13A and 1997 proposals, but the setting up of another committee of inquiry was incorporated into the 2000 proposals [Art 129(d)(iv)] to check on the capacity of the Governor to perform his duties.

Provincial Executive Powers

Executive powers are given in one Article in the 13A and enlarged in 1997 and 2000 proposals. Extra responsibility for contracts is mentioned in Art 130(2)(a) and personal immunity from contract liability is given in Art 130(2)(b). The 1997 and 2000 proposals sought to introduce the Executive Committee system, which empowers discussion of subjects and functions assigned to an RC Ministry. More emphasis is given to the selection of the members than functioning in the proposed Article.

Committees are more powerful in the Indian States. The Committee system is preferred due to the time constraint for the members study the Bills, allowing an informed debate. Apart from scrutinizing legislation, Indian committees also examine budgetary allocations for various departments and other policies. These “mini-legislatures” provide a forum for lawmakers to develop expertise, engage with citizens, seek stakeholder inputs, provide a platform for building consensus on various issues, and strengthen policy management.

Of course, for a government that wishes to prevent committees from overviewing legislation in Parliament, such improvements at the PC level may be anathema. However, this discussion aims to highlight fact that positive and constructive propositions have been attempted.

Statute-making

There was no constitutional provision under 13A to support statute making. Therefore, the PCs had to depend on the generosity of expertise in the Attorney General’s Department. The two PCs in the North and the East, where devolution was to make an indomitable mark, we find slow progress in statute-making. The PCs in general did not have the expertise for statute-making. The clarification of any legal arrangement was always delayed.

A solution was found in the 1997 and 2000 proposals through the appointment of a Regional Attorney General (1997) and an Advocate General of the Region (2000). The provision in 13A for statute-making is reinforced with these two propositions.

Clamour for elections

I will not argue whether the PC elections should be held or not, or whether PCs should exist or not. I only attempt to show that the devolution concept has been expanded from 13A, and those who once agreed to reinforce devolution should not forget their past actions.

Of course, one may argue that the 13A was intended to resolve the armed conflict, which ceased in 2009, and therefore a new mechanism should be constructed to suit the present situation. However, their opponents may argue that the causes of the conflict have yet to be obviated and thus among other things, strengthening 13A is a prerequisite for national integration and reconciliation. Importantly, political commitments by leaders of the incumbent government should not be forgotten. Of course, this may create an issue for President Gotabaya Rajapaksa, who has not included national reconciliation and integration in the 20A.

The PC administrations have also been wavering as regards the powers they already have. I am reminded how all Peoples’ Alliance Chief Ministers challenged Land Minister Rajitha Senaratna’s attempt to pass land legislation and won. These PCs were silent when President Mahinda Rajapaksa once insisted that the centre held the land powers. It is noted that former PC Members supportive of the government have organized themselves demanding PC elections. They represent the government’s grassroots support like the Local Authority Members, who were responsible for the SLPP’s victory at the local government polls in 2018, which made the party’s electoral wins in 2019 and 2020 possible.

Some believe that the PC elections need not be held because its fate can be determined when the new Constitution is drafted. The very same commentators were silent when the 19A was replaced by 20A, without waiting for the new constitution!

Conclusion

This article has attempted to emphasise that we should not only consider the 13A as the basis for future decision-making as regards devolution.

Secondly, it aims to highlight the less-discussed issues that cropped up from 1987 (13A) to 2020 (20A). These are in the public domain and should be seriously considered by politicians as well as those who advise the government.

Thirdly, some of the incumbent government leaders have been exponents of devolution and were instrumental in the drafting of the aforesaid documents. Therefore, they need to remember the good they had done towards developing institutions and try to do something better. This is an exercise not only in politicking but also in bringing about reconciliation, which is necessary for the wellbeing of the country.

Fourthly, since there are measures that have received approval from the incumbent government leaders previously, the Opposition should look at them positively and contribute to further improvement instead of putting for political arguments.

Finally, the government should make a genuine effort to usher in reconciliation and reintegration, which will help it in Geneva come March 2021.