With 13th Amendment in effect: Power devolved, power retained?

With 13th Amendment in effect: Power devolved, power retained?

Prof. Sarath Mathilal de Silva – Attorney-at-law

The 13th Amendment to the Constitution provides for the establishment of Provincial Councils. Article 154G (I) introduced by the Amendment vests legislative power in respect of the matters set out in List I of the Ninth Schedule (the Provincial Council List) in Provincial Councils. Article 154C vests the executive power within a Province extending to the matters in List I in the Governor to be exercised in terms of Article 154F (I) on the advice of the Board of Ministers. In terms of Article 154F (6) the Board of Ministers is collectively responsible and answerable to the Provincial Council

Devolution is one form of decentralisation that provides the opportunity for local people to participate in local decisions and local programmes within the national policy and to act above all as centres of initiative and activity conducive to development. Devolution of power is seen not only as a solution for ethnic, religious, indigenous or grass root level conflicts but also as a means of regional and local development. This is because the devolution of power facilitates the participation of the local population in problem identification, planning, implementation and monitoring. Moreover, the devolution could help to promote planning, resource mobilisation and development activities at a regional level. Effective poverty alleviation often hinges on improved sub-national growth and service delivery.

The organisation and structure of the Parliament which the British left behind, was profoundly centralist, with too much power concentrated in the centre. The country’s administration established under colonialism (and which continued thereafter) was also characterised by a very strong element of centralism. Its key figure was the Government Agent (GA) at provincial (later district) level responsible directly to the centre. In each area, parallel to his administrative organisation, there also developed departmental field agencies responsible to their respective central head office in Colombo. Prior to 1987, there did exist a decentralised administration under the Local Government System. The functions and duties of local authorities related mainly to matters connected with public health, welfare and convenience. However, the Central Government not only had control over the local authorities but also exercised specific and wide-ranging powers which effectively reduced the local authorities to the status of agents of the Central Government.

Judgement of the 13th Amendment Bill

In 1987 the Indo-Lanka Accord generated the two Bills, viz, the Bill titled the Thirteenth Amendment to the Constitution and the Provincial Councils Bill. The jurisdiction of the Supreme Court under Art. 120 of the Constitution was invoked by the President and a number of Petitioners in respect of the said Bills. A full bench of the Supreme Court was nominated by the Chief Justice to hear the case. The determination of the Chief Justice and the three Judges was that the said Bill to amend the Constitution (the Thirteenth Amendment) does not require the approval of the people by virtue of a Referendum under Art.83 and that once the said Bill is passed (by 2/3rd majority) and the Constitution amended accordingly, the Provincial Councils Bill will not be inconsistent with the so amended Constitution.

The determination of four other judges was that the provisions of the Thirteenth Amendment require the approval by the people at a Referendum. The determination of Justice Ranasinghe was that clauses 154(G)(2)(b) and 154 (G)(3)(b) which, inter alia, require the approval of the people at a Referendum for the amendment or repeal of Chapter XVII A or the Ninth Schedule (which) contained the lists of subjects), require the approval of the people at a Referendum. Subject to this dissent, he agreed with the Chief Justice’s view, thereby constituting the majority judgement which enabled the Parliament to enact the two laws by a 2/3rd majority. The passage into law of the 13th Amendment to the Constitution of Sri Lanka and the Provincial Councils Act No. 42 of 1987 to satisfy that demand, has been hailed as the most controversial codification of the 20th Century Sri Lanka.

Unitary State

The Thirteenth Amendment introduced a new conception of a Unitary – decentralised State based on a system of Provincial Government at a sub-national level. This description is of extreme importance since the Constitution specifically provides that the Republic of Sri Lanka is a Unitary State and the majority of the people attach much sentiment to the unitariness of Sri Lanka. The question whether the Thirteenth Amendment, in fact, devolves power would largely depend on the willingness and the capacity of both and National Government, and the Provincial Councils to achieve national unity rather than destroy it.

The 13th Amendment to the Constitution provides for the establishment of Provincial Councils. Article 154G (I) introduced by the Amendment vests legislative power in respect of the matters set out in List I of the Ninth Schedule (the Provincial Council List) in Provincial Councils. Article 154C vests the executive power within a Province extending to the matters in List I in the Governor to be exercised in terms of Article 154F (I) on the advice of the Board of Ministers. In terms of Article 154F (6) the Board of Ministers is collectively responsible and answerable to the Provincial Council.

The three lists in the Ninth Schedule of the Constitution are the Provincial Council List, the Reserved List and the Concurrent List. The Provincial Council List contains in respect of which the Provincial Council is empowered to make statutes.

These mainly cover those areas of activity where decisions affect primarily persons living in the Province and applicable to the Province. The Reserved List contains matters in respect of which the Parliament is empowered to make laws. These cover areas of national importance.

The main constitutional provisions relating to the Governor are found in the Article 154B. The Governor is appointed by the President and the holds office in accordance with Article 4(b) of the Constitution, during the pleasure of the President. The term of the Governor is five years. The degree of autonomy enjoyed by the Provincial Councils in the exercise of their legislative power is not found in the area of the exercise of their executive power. The relevant provisions of the 13th Amendment and the Provincial Councils Act demonstrate that in the exercise of executive powers, the Provincial Councils are subject to the Centre and not sovereign bodies. The provisions relating to the Governor and his powers show that the Governor is not a mere figurehead, but is an active participant in the activities of the Provincial Council. Unlike the plenary power of Parliament in relation to a Bill, with requires no executive assent, a statute of the Provincial Council requires the assent of the Governor who is the Chief Executive of the Province. It is to be noted that a statute of the Provincial Council does not attain the constitutional status of law as the definition of law in Article 170 of the Constitution remains unamended. Similarly, it does not enjoy constitutional immunity or protection that is accorded to an Act of Parliament. Therefore it is subject to the review by the Court.

Land utilisation issue

On the one hand, land utilisation laws and policy reflect the attitude shown by the policymaker on land. On the other hand laws and policy relating to land reflect the attitudes of the people on it. When the balance between these two extremes is lost, issues relating to land utilization arise, and at the first stage, such issues of social and economic nature are not resolved, later these issues become a complicated social economic and political issues. The present Sri Lankan issues relating to land have to be analysed on this foundation.

Sri Lanka’s land utilisation issue is related to economic, social and political factors. In order to resolve these economic and social issues, the State since 1930s intervened through various state policies by implementing schemes such as land colonization schemes, expansion of villages, alienation of land to the middle class, alienation of land through special permits, regularization of encroachment by deeds, settlement on highlands, youths resettlement programmes and Maha wewa settlement schemes.

However, the contributions made through the aforesaid efforts to resolve economic and social issues in the rural sector have not been satisfactory at all. The fact that the aforesaid issues still remain to mean that state policies formulated and implemented by the capital city of state do not adequately represent regional needs. It is also evident that the central planning from the capital city cannot resolve some issues based on regional diversity.

Although 13th Amendment to the Constitution was introduced in 1987 conferring powers of land to Provincial Councils, subject to restrictions, however powers relating to land have considerably been still fully retained by the Central State. Land ownership issue in Sri Lanka is a highly complicated and confused issue among other political, economic and social issues of the country. On the one hand, it is a complex economic and social issue faced by the whole country. On the other hand, it has gone to such an extent demanding separate State. The one important ground for these both issues is the fact that the biggest landowner in the country is the State and the slow movement shown by the State towards the full implementation of the 13th Amendment.

If the Provincial Councils system is to function smoothly and meaningfully much needs to be done legislatively and administratively to fill the lacunae in the law to ensure that the transition from a centralized system of administration to a decentralized one facilitates the achieving of the main objective of the scheme a means of power sharing among the different ethnic-cultural groups providing a settlement of major grievances of the people. The present status of the Provincial Councils system with all its infirmities does not warrant such optimism.

There are two principal issues that the devolution debate over state land needs to address. The first is the extent to which the regional units are given power and autonomy to control and manage state land in the region. The second is what needs to be reformed at the centre, in order to make these a reality. Very often the second does not automatically follow from the first.

(The writer is retired Professor of Law, Faculty of Management Studies and Commerce, University of Sri Jayawardenepura.)

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Writer and Journalist living in Canada since 1987. Tamil activist

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