Indian PM Rajiv Gandhi and President JRJ inking the Indo-Lanka Peace Accord which paved the way for the provincial council system
“The purpose of the Subcommittee on Centre Periphery Relations appears to be to empower the provinces to such an extent that the central government is rendered irrelevant. What they envisage is a nominal central government with nine virtually independent provinces.” (Analyses of the other subcommittee reports will appear from Monday onwards.)
By C. A. Chandraprema
(First part appeared yesterday)
It was discussed in the Subcommittee on Centre Periphery Relations of the Constitutional Assembly that the ‘unitary character’ of the constitution was an ‘impediment’ to the effective functioning of the Provincial Councils and that the present constitutional framework, gives ‘undue advantage’ to the centre. The list of concurrent powers to be shared by the centre and the provinces, the powers of the central government over the formulation of national policy, the powers of the provincial Governors and the fiscal control of the provincial councils by the centre were all cited as factors inhibiting the devolution of power. The Subcommittee observed that the three levels of government, the Centre, the Provincial Councils, and the Local Authorities at each level is subject to the authority of the layer above it, and therefore the centre-periphery relationship is ‘akin to a hierarchical pyramid structure’ rather than an interrelationship between ‘distinct spheres of authority’.
The subcommittee recommended that centre periphery relations should be guided by the principle that each tier of government is distinct. They recommended that the concurrent list in the constitution be done away with and that any subject not specified in either the central government or provincial list should automatically be given to the provinces. It was also recommended that the power of the central government over national policy relating to all subjects be done away with and provision should be made for a consultative mechanism involving the participation of provincial representatives in the formulation of national policy.
The sub-committee discussed the need to grant to the provinces the police powers set out in the provincial council list and in Appendix 1 of the present constitution. Under the provisions of the 13th Amendment relating to the police (which have never been implemented) the Sri Lanka police force will have a national division and nine separate provincial divisions which will all have separate police commissions to deal with recruitment, promotion, transfer and disciplinary control of the police personnel under them. The IGP will appoint a DIG for each province, with the concurrence of the respective chief minister. The number of police officers in each provincial division will be fixed by the provincial administrations with the approval of the president, having regard to the area, number of police stations and population of the province. The type and quantity of fire-arms for the provincial police divisions shall be determined by the National Police Commission after consultation with the provincial police commissions.
The central government of Sri Lanka has control over the training of both the national and provincial divisions of the police force. The provincial police force will be uniformed while the national division shall ordinarily be in plain clothes but they may wear uniforms when performing duties in respect of public order in a province. Thus, the visible law enforcement authority in all provinces will be the provincial police force. The DIG of the province is responsible to and under the control of the chief minister of the province in respect to the exercise of police powers in the province. The national police has jurisdiction over offences against the state, offences against ministers, MPs, public or judicial officers, against the armed forces, and offences relating to elections, currency and international crimes. All other police functions will be handled by the provincial police forces. The IGP can refer an investigation to the CID only after consulting the chief minister of the province and the Attorney General.
It should be borne in mind that the police powers in the 13th Amendment were modelled on the Indian constitution and the police powers of the provinces are similar to the police powers of the Indian states. However the Indian states are much larger and more populous than most nation states. Even the 200 million plus state of Uttar Pradesh has only one police force as does the 75 million plus Tamil Nadu. A scheme that suits a country the size of India will not work in a country as small as Sri Lanka which is why the police powers in the 13th Amendment were never implemented by any government. However in a departure from the provisions laid down in our constitution which places the provincial police force directly under the chief minister, the Subcommittee on Centre Periphery Relations recommends that it be brought under an independent commission as it is at the national level.
The Subcommittee has stated that the provincial authority should have control over state land within the province and observes that Appendix II to the constitution limits provincial rights in this regard and gives authority to the centre to decide on many things including the final assent for the disposition of land. They also observed that there was ambiguity with regard to land as it is mentioned in the provincial councils list as well as in the central government list (along with Rivers and Waterways). The subcommittee envisaged the transfer of all land powers to the provinces and they recommended that in the using state land, the provincial council should adhere to the policy guidelines of a land commission comprised of representatives of both the centre and the provinces with regard to issues such as forest cover, agricultural sustainability, land fragmentation, landlessness, etc.
However, no decision of the land commission would be imposed on any province without the consent of the representatives of that province. Furthermore, the taking over of any state land under existing Acts of Parliament like the Mahaweli Act, UDA Act, Forest Ordinance, Tourism Act, etc. could be carried out only with the concurrence of the respective provincial council. According to the subcommittee report, the way the central government could obtain land for their purposes would be to ‘require’ a provincial executive to release any piece of state land for a purpose coming under the central government in which event it shall be the ‘duty’ of the provincial executive to release that land to the central government.
There is another significant area where the 13th Amendment has failed to provide Sri Lanka with the safeguards available to the Indian central government. According to item number 18 in the provincial councils list of the Sri Lankan constitution, the provincial councils have ‘rights in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement, to the extent set out in Appendix II’. Appendix II of the ninth schedule of the Sri Lankan constitution states that if the Sri Lankan central government needs to utilize a piece of land in a province for a purpose coming under its purview, it has to ‘consult’ the provincial council with regard to the use of that land. Thus if the provincial land powers in the Sri Lankan constitution are implemented, whether the central government has any power over land at all will be decided by the Supreme Court depending on how they interpret the word ‘consult’.
In India this problem was settled quite early on. If the Indian central government needs to use a piece of state owned land in any of their states, they can do so without so much as a by your leave to the state government thanks to the landmark Supreme Court judgement in The State of West Bengal v Union of India (1962). In this case the Indian central government proposed to acquire certain lands bearing coal deposits in the State of West Bengal. The West Bengal government petitioned the Supreme Court claiming that the central government did not have the power to acquire state owned land without the concurrence of the government of that state.
In support of that claim the State of West Bengal quoted Section 9(1) of the Coal Bearing Areas (Acquisition and Development) Act, of 1957 which clearly stated that the Indian central government could take over coal bearing areas but in the event where the earmarked land belongs to a state, the state government concerned has to be ‘consulted’ before the proclamation announcing the takeover is issued. However the Indian Supreme Court simply dismissed Section 9(1) of the Coal Bearing Areas (Acquisition and Development) Act, of 1957 saying that ‘consultation’ does not necessarily mean consent! Thus even in India, it needed a Supreme Court judgement to determine what the powers of the central government were in relation to land.
This is one of the pitfalls of borrowing models that had been designed for other countries. If we borrow other people’s laws, we have to borrow the litigation over those laws as well. But our 13th Amendment failed to incorporate the decision handed down in The State of West Bengal v Union of India and now we have to reinvent the wheel by getting our own courts to interpret what the word ‘consult’ means in relation to the land powers of the central government vis a vis those of the provinces. This is not a satisfactory state of affairs at all.
It was observed by the subcommittee on Centre Periphery Relations that the devolution of power without real fiscal devolution is meaningless. At present, says the subcommittee, allocating money to the provincial councils is at the sole discretion of the centre and that this is one of the ‘main flaws’ in the 13th amendment. The provinces have very limited financial resources and depend on annual grants from the central government to meet their expenditure. In the budget for 2015, the allocation for all nine provincial councils was 12% of the total govt. expenditure. The subcommittee also observed that the capital expenditure allocation is granted with the expenditure heads specified by the central government. For example under the allocation to the health department, the amount to be spent on building repairs and the district in which it should be spent will be specified. The provincial council only has the discretion to decide the hospitals to which the repairs are to be effected in that district.
In a further restriction of the fiscal independence of the province, the provincial council cannot pass statutes imposing or abolishing any taxes without the consent of the Governor. In addition to this the subcommittee observed that there are limitations on obtaining loans and investment and on administering projects financed by foreign aid and investments. The sub-committee recommended that the constitution should clearly demarcate the taxation and revenue powers of the three tiers of government, and ensure that any administrative collection mechanism does not derogate from the financial power of the respective tier of government.
On the administrative front, the subcommittee on Centre-Periphery Relations observed that agencies of the central government have separate offices at provincial level or by-pass the provincial level completely and have their branches at district level and that the District and Divisional Secretaries perform administrative functions within the territory of the province without control or supervision by provincial authorities. The District Secretary coordinates the development activities in the district, including central government activities, provincial functions and to some extent nongovernmental projects. The subcommittee recommended that that the district and divisional administration be made a part of the provincial administration with district and divisional secretaries being re-designated as Additional Chief Secretaries and Deputy Chief Secretaries in the provincial administration respectively.
Declaring most of the public service as an ‘All Island Services’, is another impediment to the devolution of power as stated by the subcommittee. The all island services should be limited to a few services such as the Sri Lanka Administrative Service, Sri Lanka Engineering Service, Government Medical Officers Service, Sri Lanka Police Officers Service, Sri Lanka Scientific Officers and Sri Lanka Accountants Service. The subcommittee also recommended that the provincial public service should be brought under independent provincial public services commissions similar to the National Public Service Commission to which members will be jointly nominated by the chief minister and the leader of the opposition of the Provincial Council.
The subcommittee held that as in the case of the central government, the board of ministers of the province should have the power to determine all matters relating to officers of the provincial public service, including the formulation of schemes of recruitment and codes of conduct and the principles to be followed in making promotions and transfers etc. (This power is vested in the provincial governor at present.) The subcommittee noted that another constraint to the effective functioning of the provincial public service is the need to obtain the approval of the Treasury for the creation of cadre. They recommended that the provincial public services commission of each province should have the power to decide the cadre need of the respective provinces, including the cadre need of the local authorities, based on common criteria applicable to all the provinces. (How practical this recommendation is in view of the limited resources available to the Sri Lankan state was not discussed by the subcommittee.)
It can be seen by the proposals made by the Subcommittee on Centre Periphery Relations that what they envisage are nine virtually independent provinces in Sri Lanka which enjoy powers far in excess of those available to the Indian states. The governor will be a nominal head of province doing the chief minister’s bidding. The day to day police functions, state land, the public administration mechanism, and a good part of the fiscal powers, will all be in the hands of the provincial councils. The powers that the central government will have were not elaborated on by the subcommittee but by examining what they had omitted to mention, it can be surmised that subjects like foreign affairs and defence will remain with the centre. However, the centre will be so weakened by the centrifugal tendencies unleashed if these proposals are implemented, that they will not have the capacity to resist any attempt by a province to break away.
One thing that can be noticed in the Subcommittee on Centre-Periphery Relations report is that they have not discussed or made any recommendations about that staple in devolution discussions over the past three decades – provisions for two or more provinces to amalgamate and form a single provincial council or the merger of the northern and eastern provinces. That will no longer be necessary because the centre will be so weakened that there will be no force to resist anything that two or more provinces decide to do. As we pointed out in yesterday’s article, our system of devolution though modelled on that of India, started off without some of the most important safeguards available to the Indian central government.
The purpose of the Subcommittee on Centre Periphery Relations appears to be to empower the provinces to such an extent that the central government is rendered irrelevant. What they envisage is a nominal central government with nine virtually independent provinces. The reason why the Subcommittee has taken care not to mention India even once in their report, is because any reference to India will be a disadvantage to the project they have in mind. The Indian constitution has been designed in such a way that the Indian union can maintain its hold on the states. In recent decades, one or two states like Tamil Nadu became more assertive and have been suggesting constitutional changes that would give the states more autonomy. But even Tamil Nadu assertiveness has its ups and downs as can be seen from the fact that they have been down rather than up after Modi formed a government on his own.
Tamil Nadu may talk aggressively about Sri Lanka but they will never dare talk to their own central government in that manner, especially if the central government has been formed without their help. Tamil Nadu leaders never, ever use some of the phraseology routinely used by the TNA such as ‘self determination’. The way the Indian constitution makes provision for the union to keep the states on a leash is a fascinating study in itself and we will deal with that after this series of articles on the Constitutional Assembly subcommittee reports. In any event, the report of the Subcommittee on Centre-Periphery Relations can hardly be considered a serious effort at constitution making. It’s more like a wish-list submitted by professional separatists.