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Province unsuitable as a unit of governance

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by Neville Ladduwahetty

The government is reportedly planning to hold the provincial council elections while an expert committee is actively engaged in the making of a new constitution. Holding elections before the drafting of a constitution imposes a constraint on the expert committee since it cannot afford to drift too far from existing arrangements if it is not to incur the ire of the elected members following an election. This means that the expert committee cannot take into account the prevailing antipathy towards Provincial Councils (PCs), for whatever reason, and propose a fresh approach to devolution

This would be the unfortunate outcome if elections to PCs are held prior to the promulgation of a new constitution. If elections are held after a new Constitution is in place, it will give the expert committee an opportunity to propose a fresh approach after taking into account the lessons of historical experiences Sri Lanka has had to endure. Therefore, the plea to the government is to give the country the opportunity to evolve a system of government that serves them best, free of constraints.

 

LESSONS OF HISTORY

Having gained control of the whole of the island following the Kandyan Convention in 1815, the British attempted to administer the island as a single unit under a Governor. It did not take long for the British to realize that consolidation of power through an effective administration required the island to be sub-divided into smaller units as recommended by the Colebrooke-Cameron Reforms of 1833. The process of sub-division that started out with five (5) Provinces ended up with nine (9) provinces in 1889. Throughout this process of sub-division each province was further divided into districts and even smaller units in order to better administer the province. Thus by 1889 the nine provinces ended up being divided into the 25 districts.

With the introduction of the 13th Amendment to the Constitution in 1987, which created Provincial Councils, the lessons of history were ignored. Although the lesson of history was that smaller units are more effective as an administrative tool, the reversal to the larger unit of the province ignored the colonial guidelines of administration. The plea to the framers of the New Constitution is that these lessons of history are not ignored. What history has demonstrated clearly is that the province as a unit is ineffective as a unit of governance.

Although the administration of the island was based on the provinces under an all-powerful Government Agent for each province from 1833, his powers underwent significant derogation with the introduction of the Donoughmore Commission recommendations of 1931. Affirming this trend, the citation presented below states: “The status of the GA after the Donoughmore recommendations could be portrayed through the following note. ‘The division of government’s activities into ten ministries with a minister in charge of each activity, in place of general surveillance by the colonial secretary reduced enormously the power and responsibilities of the GA and led to the appointment of the departmental organizations responsible to the minister to manage many of the executives formerly entrusted to GA’. Thus the power and status of the GA, who was once an unquestioned authority in the district, underwent gradual erosion with the acquisition of his powers and authority of local administration by the departmental field agencies (Leitan p.41) Local administration for instance, under which Sanitary Boards and Village Committees were formerly supervised by the Kachchery organizations was now under the Department of Local Government. Education, Agriculture, Health and Public Works that were the subjects under the purview of the GA were the responsibilities of relevant departments under the executive committee system. (Ranasinghe R.A.W, “Role of Government Agent in Local Administration in Sri Lanka, International Journal of Education and Research, Vol. 2 No.2 February 2014).

Commenting on the process of division and sub-division during the colonial period where the powers of the provincial Government Agent become increasingly marginalized, Dr. Peiris in a characteristically scholarly article states: “Intra-provincial administrative adjustments were made at various times bringing the total number of Districts in the country from nineteen in 1889 to twenty-five at present. Government Agents of the provinces, holding executive power over their areas of authority, coordinated a range of government activities in their respective provinces. It is important to note, however, that in certain components of governance, while the related regional demarcations did not always coincide with provincial and district boundaries, the Government Agent had either only marginal involvement or no authority at all. This was particularly evident in fields such as the administration of justice, maintenance of law and order, and the provision of services in education and health care, in which there is large-scale daily interaction between the government and the people. (Dr. G.H. Peiris, Province-based Devolution in Sri Lanka: a Critique, December 17, 2020).

As Chairman of the Executive Committee responsible for Local Government it was Hon. S.W.R.D. Bandaranaike in 1940 who advocated the district as the most suitable unit from a Local Government perspective. His recommendation to the State Council was: “though the word ‘provincial’ is used here, I would point out that this body would be restricted to a revenue district, not necessarily to a province as we have it now, but to a revenue district. The Galle District, the Matara District, the Nuwara Eliya District and so on…” (Hansard {State Council}, 10 July 1940, pp. 1362-1371).

Thus, the lesson of history confirms the unsuitability of the province by itself as a unit of administration /governance. It is the sub-division of the province to districts that made administration effective during the colonial period. Furthermore, even though the population in the island in 1889 was only three million (Dr. G.H. Peiris), if the colonial powers deemed it appropriate to structure the island into nine provinces and twenty-five districts for reasons of administration, what kind of logic would justify reverting back to the larger unit of the province when the population is more than nearly six times what it was in 1889?

The reason for the reversal to the province was definitely NOT motivated by governance. The motivation for the reversal was clearly political. It was triggered by the need to find a solution to the Tamil national question based on claims of a traditional homeland involving the Northern and Eastern Provinces following the riots of 1983 and the intervention of India under the guise of the Indo-Lanka Accord. The history lesson that had come from colonial times to recognize the district and sub-divisions of the district, was ignored. What was introduced instead, was the province as the unit of governance in 1987, under the 13th Amendment. It is therefore understandable why the reversal to a province is as unworkable today as had been recognized by the colonial rulers.

LEARNING from HISTORY

No amount of additional powers and resources would make the provincial council system work, because the intention of the arrangement was for all power to be retained by the provincial councils. Such a centralized top down approach is inherently unworkable; a lesson the colonial administrators had eventually learnt. The only way to make it work was to devolve powers from the province to districts and to sub-divisions of districts such as pradeshiya sabhas and other local government units. This would derogate the powers currently exercised by the Chief Minister and the provincial council. Consequently, it would not be any different to the erosion of the powers of colonial Government Agents (GA) until the Donoughmore Commission recommendations were implemented and districts and its sub-units directly handled peripheral issues, thereby underscoring the irrelevance of the GA. Therefore, there is little or no prospect of PCs elected under current provisions devolving powers to districts and local governments within the province. Consequently, the current ineffective arrangements under the 13th Amendment would continue unless transformed rationally.

Although the province lost its relevance from an administration perspective, the British continued to identify the territory of the island in terms of provinces and districts. Even independent Ceylon and the Republic of Sri Lanka continued to identify the territory in terms of provinces and districts. However, it was only Article 5 of the 1978 Constitution that identified the territory of the Republic in terms of the district.

Notwithstanding the identification of the territory of the Republic of Sri Lanka in terms of the district, the reference to province resurfaced following the Vaddukoddai Resolution of 1976 that called for a separate state involving the Northern and Eastern Provinces. With this and the three-decade long armed conflict to create a separate state, the province has once more assumed importance to the point of not only becoming a threat to the territorial integrity of Sri Lanka, but also bequeathed an administrative nightmare that needs to be addressed without any further delay.

That nightmare is that every province in Sri Lanka functions under two parallel systems. One system administers functions relating to line ministries of the central government and a second system administers functions relating to the powers devolved to the provinces under the 13th Amendment. Reverting back to the decentralized system that existed prior to devolution is not a satisfactory arrangement either, because of the remoteness of the center from the priorities of the periphery. Devolving power to the provinces is akin to a centralized arrangement because it is as remote from the periphery. The problem with the current arrangement is not so much due to the two parallel systems, but primarily due to the choice of the unit to which power is devolved. Therefore, accepting that two parallel systems need to function concurrently because of its

in-built merit that power needs to be shared, one way to mitigate its negative aspects is to devolve appropriate power to districts and the local government entities in keeping with the concept of subsidiarity, instead of the provinces as exists today.

POSSIBLE OPTIONS

The choice for the Government is either to live with the current ineffective arrangement as per the 13th Amendment despite the denial of human rights of the overwhelming majority for improved governance, or actively promote a change to current arrangements notwithstanding a possible backlash from those who benefit from current arrangements.

One way to mitigate a possible backlash would be to absorb all the elected members in each PC into a District- based Council and divide the powers currently devolved under the 13th Amendment excluding powers relating to Law and Order, Land and Land Settlement and any others based on the concept of subsidiarity between such District-based Councils and the Local Governments. Such an arrangement would empower the districts with powers it did not have and enhance the powers currently assigned to Local Governments. In addition, it would give many more members currently elected to PCs an opportunity to directly engage in District-level activities than they are today.

For instance, under the current PC system, on an average, only the Chief Minister and four others form the Board of Ministers in each of the nine provinces. This means a total of forty-five are actively engaged in all the nine provinces with the majority of the Council members not having an opportunity to play a meaningful role. Consequently, the arrangement is undemocratic since the majority of elected members do not have the opportunity to contribute their views and express their concerns. If as proposed herein, a five-member Board of Minister is created in each district a total of one hundred and twenty-five Councilors in the twenty-five districts would be in a position to engage themselves meaningfully. According to a website as of 2017 there were 455 PC members. Accommodating all of them in the 25 districts would mean each district-based council would have an average of 18 to 19 members. On the other hand, if the district-based council is made up of a minimum of 2 from each of the nearly 260 Pradheshiya Sabahs (not including the 14MCs and 37UCs) the number in the 25 district council would be 520 i.e. more than from all the PCs. Therefore, whether the district council is formed from members of PCs or from members of local governments, the numbers involved would be similar. The only difference being the cost of conducting an election to elect the district-based council. Therefore, regardless of how the district based council is elected, it is imperative that if Sri Lanka is to prosper it has to transfer powers currently devolved to the provinces to district-based councils and local government entities.

CONCLUSION

The Province as a territorial unit is of relevance to the Tamil political leadership, while it is of no relevance to the overwhelming majority of citizens. To the Tamil leadership the province provides them the opportunity to merge the Northern and Eastern Provinces and carve out a single political unit on grounds of a dubious Tamil homeland claim despite the absence of any physical vestige of such a claim. To the average citizen the province with all power vested in it, is an impediment to improved governance that affects his/her well-being. Furthermore, the province is an ever present and a constant threat to Sri Lanka’s territorial integrity and national security as demonstrated by a three-decade long armed conflict followed by continuing threats by the Tamil leadership to go it alone.

Although colonial administrators started out to govern the island by creating five provinces in 1833 under Colebrooke-Cameron Reforms, they soon realized that effective administration was not possible without creating more provinces along with districts within each province. This process continued until 1889, when the territory of colonial Ceylon was divided into nine provinces and twenty-five districts. However, with the introduction of Donoughmore Commission reforms the relevance of the Government Agent of the province and the province as an administrative tool gradually faded and the smaller unit of the district became the more effective territorial unit for effective governance. This trend is quoted in the references cited above. The district as the unit of administration was also recognized by the State Council for purposes of Local Government even prior to independence in 1940.

These lessons of history were ignored when power was devolved to provinces under the 13th Amendment to the Constitution in 1987. The true intent for resurrecting the province with political power was clearly political because it provided for the Northern and Eastern provinces to be merged into a single territorial unit to be governed by a single PC. For this to happen the province has to survive and its survival depends on how it delivers on governance. The fact that the province has failed as a viable devolved unit means that the province has lost its purpose and therefore the justification to exist.

If Sri Lanka is to prosper it is imperative that the province as a territorial and political entity is abolished for three vital reasons.

One – That powers devolved to the provinces under the 13th Amendments excluding Law and Order, Land and Land Settlement and any others based on the concept of subsidiarity, should be divided between the districts and related local governments with a view to facilitating greater economic development and for reasons of fostering enhanced democratic governance.

Two – That the province represents a clear and constant danger to Sri Lanka’s territorial integrity because its size tempts separatist aspirations.

Three – That because the province was created in order to meet political exigencies and not for reasons of good governance, the time and opportunity have come to abandon serving parochial political imaginings of a few and create a system that focuses on human development for the benefit of all citizens.

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Features

Govt.’s choice is dialogue over confrontation

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By Jehan Perera

Preparing for the forthcoming UN Human Rights Council cannot be easy for a government elected on a nationalist platform that was very critical of international intervention. When the government declared its intention to withdraw from Sri Lanka’s co-sponsorship of the October 2015 resolution No. 30/1 last February, it may have been hoping that this would be the end of the matter. However, this is not to be. The UN Human Rights High Commissioner’s report that will be taken up at the forthcoming UNHRC session in March contains a slate of proposals that are severely punitive in nature and will need to be mitigated. These include targeted economic sanctions, travel bans and even the involvement of the International Criminal Court.

Since UN Secretary General Ban Ki-Moon’s visit in May 2009 just a few days after the three-decade long war came to its bloody termination, Sri Lanka has been a regular part of the UNHRC’s formal discussion and sometimes even taking the centre stage. Three resolutions were passed on Sri Lanka under acrimonious circumstances, with Sri Lanka winning the very first one, but losing the next two. As the country became internationally known for its opposition to revisiting the past, sanctions and hostile propaganda against it began to mount. It was only after the then Sri Lankan government in 2015 agreed to co-sponsor a fresh resolution did the clouds begin to dispel.

Clearly in preparation for the forthcoming UNHRC session in Geneva in March, the government has finally delivered on a promise it made a year ago at the same venue. In February 2020 Foreign Minister Dinesh Gunawardena sought to prepare the ground for Sri Lanka’s withdrawal from co-sponsorship of UN Human Rights Council resolution No 30/1 of 2015. His speech in Geneva highlighted two important issues. The first, and most important to Sri Lanka’s future, was that the government did not wish to break its relationships with the UN system and its mechanisms. He said, “Sri Lanka will continue to remain engaged with, and seek as required, the assistance of the UN and its agencies including the regular human rights mandates/bodies and mechanisms in capacity building and technical assistance, in keeping with domestic priorities and policies.”

Second, the Foreign Minister concluding his speech at the UNHRC session in Geneva saying “No one has the well-being of the multi-ethnic, multi-lingual, multi-religious and multi-cultural people of Sri Lanka closer to their heart, than the Government of Sri Lanka. It is this motivation that guides our commitment and resolve to move towards comprehensive reconciliation and an era of stable peace and prosperity for our people.” On that occasion the government pledged to set up a commission of inquiry to inquire into the findings of previous commissions of inquiry. The government’s action of appointing a sitting Supreme Court judge as the chairperson of a three-member presidential commission of inquiry into the findings and recommendations of earlier commissions and official bodies can be seen as the start point of its response to the UNHRC.

 

 

NEGATIVE RESPONSE

 

The government’s setting up of a Commission of Inquiry has yet to find a positive response from the international and national human rights community and may not find it at all. The national legal commentator Kishali Pinto Jayawardene has written that “the tasks encompassed within its mandate have already been performed by the Lessons Learnt and Reconciliation Commission (LLRC, 2011) under the term of this President’s brother, himself the country’s Executive President at the time, Mahinda Rajapaksa.” Amnesty International has stated that “Sri Lanka has a litany of such failed COIs that Amnesty International has extensively documented.” It goes on to quote from the UN High Commissioner for Human Rights that “Domestic processes have consistently failed to deliver accountability in the past and I am not convinced the appointment of yet another Commission of Inquiry will advance this agenda. As a result, victims remain denied justice and Sri Lankans from all communities have no guarantee that past patterns of human rights violations will not recur.”

It appears that the government intends its appointment of the COI to meet the demand for accountability in regard to past human rights violations. Its mandate includes to “Find out whether preceding Commissions of Inquiry and Committees which have been appointed to investigate into human rights violations, have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences.” In the past the government has not been prepared to accept that such violations took place in a way that is deserving of so much of international scrutiny. Time and again the point has been made in Sri Lanka that there are no clean wars fought anywhere in the world.

International organisations that stands for the principles of international human rights will necessarily be acting according to their mandates. These include seeking the intervention of international judicial mechanisms or seeking to promote hybrid international and national joint mechanisms within countries in which the legal structures have not been successful in ensuring justice. The latter was on the cards in regard to Resolution 30/1 from which the government withdrew its co-sponsorship. The previous government leaders who agreed to this resolution had to publicly deny any such intention in view of overwhelming political and public opposition to such a hybrid mechanism. The present government has made it clear that it will not accept international or hybrid mechanisms.

 

 

SEQUENTIAL IMPLEMENATION

 

In the preamble to the establishment of the COI the government has made some very constructive statements that open up the space for dialogue on issues of accountability, human rights and reconciliation. It states that “the policy of the Government of Sri Lanka is to continue to work with the United Nations and its Agencies to achieve accountability and human resource development for achieving sustainable peace and reconciliation, even though Sri Lanka withdrew from the co-sponsorship of the aforesaid resolutions” and further goes on to say that “the Government of Sri Lanka is committed to ensure that, other issues remain to be resolved through democratic and legal processes and to make institutional reforms where necessary to ensure justice and reconciliation.”

As the representative of a sovereign state, the government cannot be compelled to either accept international mechanisms or to prosecute those it does not wish to prosecute. At the same time its willingness to discuss the issues of accountability, justice and reconciliation as outlined in the preamble can be considered positively. The concept of transitional justice on which Resolution No 30/1 was built consists of the four pillars of truth, accountability, reparations and institutional reform. There is international debate on whether these four pillars should be implemented simultaneously or whether it is acceptable that they be implemented sequentially depending on the country context.

The government has already commenced the reparations process by establishing the Office for Reparations and to allocate a monthly sum of Rs 6000 to all those who have obtained Certificates of Absence (of their relatives) from the Office of Missing Persons. This process of compensation can be speeded up, widened and improved. It is also reported that the government is willing to consider the plight of suspected members of the LTTE who have been in detention without trial, and in some cases without even being indicted, for more than 10 years. The sooner action is taken the better. The government can also seek the assistance of the international community, and India in particular, to develop the war affected parts of the country on the lines of the Marshall Plan that the United States utilized to rebuild war destroyed parts of Europe. Member countries of the UNHRC need to be convinced that the government’s actions will take forward the national reconciliation process to vote to close the chapter on UNHRC resolution 30/1 in March 2021.

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Album to celebrate 30 years

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Rajiv Sebastian had mega plans to celebrate 30 years, in showbiz, and the plans included concerts, both local and foreign. But, with the pandemic, the singer had to put everything on hold.

However, in order to remember this great occasion, the singer has done an album, made up of 12 songs, featuring several well known artistes, including Sunil of the Gypsies.

All the songs have been composed, very specially for this album.

Among the highlights will be a duet, featuring Rajiv and the Derena DreamStar winner, Andrea Fallen.

Andrea, I’m told, will also be featured, doing a solo spot, on the album.

Rajiv and his band The Clan handle the Friday night scene at The Cinnamon Grand Breeze Bar, from 07.30 pm, onwards.

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LET’S DO IT … in the new normal

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The local showbiz scene is certainly brightening up – of course, in the ‘new normal’ format (and we hope so!)

Going back to the old format would be disastrous, especially as the country is experiencing a surge in Covid-19 cases, and the Western Province is said to be high on the list of new cases.

But…life has to go on, and with the necessary precautions taken, we can certainly enjoy what the ‘new normal’ has to offer us…by way of entertainment.

Bassist Benjy, who leads the band Aquarius, is happy that is hard work is finally bringing the band the desired results – where work is concerned.

Although new to the entertainment scene, Aquarius had lots of good things coming their way, but the pandemic ruined it all – not only for Aquarius but also for everyone connected with showbiz.

However, there are positive signs, on the horizon, and Benjy indicated to us that he is enthusiastically looking forward to making it a happening scene – wherever they perform.

And, this Friday night (January 29th), Aquarius will be doing their thing at The Show By O, Mount Lavinia – a beach front venue.

Benjy says he is planning out something extra special for this particular night.

“This is our very first outing, as a band, at The Show By O, so we want to make it memorable for all those who turn up this Friday.”

The legendary bassist, who lights up the stage, whenever he booms into action, is looking forward to seeing music lovers, and all those who missed out on being entertained for quite a while, at the Mount Lavinia venue, this Friday.

“I assure you, it will be a night to be remembered.”

Benjy and Aquarius will also be doing their thing, every Saturday evening, at the Darley rd. Pub & Restaurant, Colombo 10.

In fact, they were featured at this particular venue, late last year, but the second wave of Covid-19 ended their gigs.

Also new to the scene – very new, I would say – is Ishini and her band, The Branch.

Of course, Ishini is a singer of repute, having performed with Mirage, but as Ishini and The Branch, they are brand new!

Nevertheless, they were featured at certain five-star venues, during the past few weeks…of their existence.

 

 

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