In his first trip abroad to India, the new Foreign Minister has stated that the new government is committed to implementing the Thirteenth Amendment to the Constitution. Similarly, in his first address to Parliament after the formation of the government, the Prime Minister stressed the need to develop a solution to the ‘national problem’, adding that any such solution ‘would not be detrimental to the unitary status of the country.’ Like Phaedrus, the people of the North and East especially can be forgiven for thinking that the mountain went into labour to deliver a mouse. But this is what we have to work with in the present conjuncture, and the wise thing to do is not scoff and boycott, but to engage and consolidate small gains step by step. As I have argued before, constitutional incrementalism is and can be a highly principled way of negotiating competing claims in pluralistic societies, and its very slowness allows a level of deliberation and consensus-building that contributes to the durability of the settlements that emerge. I hope therefore that the more radical Tamil nationalists will eschew the customary tendency to denounce what is offered as ‘too little, too late’ and try to make the best of what is the only show in town, remembering also the catastrophic consequences of undermining moderate governments in Colombo in the recent past. The only beneficiaries of such a course of action would be the racist rump in the South, the political potency of which as we know only too well, is far from exhausted.
In this regard, the appointment of the respected civil servant and diplomat H.M.G.S. Palihakkara as the Governor of the Northern Province is one of the best decisions that President Sirisena has made in the first fortnight in office, and if as reported, Austin Fernando is appointed the Governor of the Eastern Province, that would be an equally good choice. These appointments signify not only the new administration’s intent to demilitarise the relationship between the centre and the two Tamil-speaking provinces, but in Palihakkara and Fernando, two personalities with demonstrably sensible, mainstream views on ethnic accommodation within a united Sri Lanka that most moderate Sri Lankans would readily identify with. They are also seasoned administrators who have the knowledge, confidence, and experience to develop good working relationships with the elected component of the provincial governments, and given the centrality of the office of the Governor in the Thirteenth Amendment scheme, the importance of this cannot be gainsaid.
In addition to this initial, symbolically positive step, however, I would argue that if the Thirteenth Amendment were to be properly implemented, the issues discussed in what follows would require to be addressed with a view to realising the fullest extent of devolution within its parameters. There is possibly no political consensus within the ruling coalition for going beyond this at this stage, and it is extremely encouraging that neither the JHU in Cabinet nor the JVP in the National Executive Council have objected to the implementation of the Thirteenth Amendment, as they might have done in the past. In my view, despite the many flaws of the Thirteenth Amendment, it can still allow for a surprising measure of autonomy and co-operation if implemented in a devolutionary spirit. What is proposed below therefore requires no constitutional changes, and does not impinge on the concept of the unitary state in any way. It involves only the faithful execution of what is already provided in the supreme law of the land.
What are the structural changes that are required?
For maximising the extent of devolution within the parameters of the Thirteenth Amendment, changes need to be made to the statutory structure set out in the Provincial Councils Act (as amended), and consequential amendments to other central legislation.
Substantively, the main issue with regard to the Provincial Councils Act is the centrality that it accords to the Governor in the day-to-day administration of the Province. The main focus of change in this regard must be to establish a more even balance between the Governor, and the Chief Minister and the Board of Ministers. It is recognised that the constitutional framework requires that certain functions are performed by the Governor, and which therefore cannot be taken away by ordinary legislation. However, there is no reason why, in relation to many other functions, a more appropriate balance cannot be struck by either removing the statutory functions of the Governor altogether, or by making the exercise of his powers expressly subject to the advice of the Chief Minister and the Board of Ministers. Amendments to the Provincial Councils Act require the following changes.
Many of the functions of the Governor and the President in Part of II of the Provincial Councils Act dealing with meetings and conduct of business of the Provincial Council including those of a symbolic nature are unnecessary, except those that are required for purposes of legal rights and liabilities of the provincial administration through the Provincial Council. The provisions requiring the President’s approval for rules of procedure of the Provincial Council regarding financial matters, and for prohibiting discussion on the conduct of the Governor in matters in which he acts in his own discretion, are unnecessary and may be removed. There is no justification for prohibiting discussion of the Governor in the Provincial Council. There is also no reason why the Governor should make rules allocating business among the Ministers. This may be done by the Board of Ministers in consultation with the Chairman of the Provincial Council, and subject to the approval of the Provincial Council.
The powers and functions of the Governor in regard to provincial finance under Part III of the Provincial Councils Act are some of the main impediments to devolution, and to the promotion of greater financial responsibility and accountability at the provincial level. These powers and functions must be transferred to the Chief Minister, who may be regarded ex officio as the Finance Minister of the Province. However, the present rule-making powers of the Governor with regard to the Provincial Fund and the Emergency Fund need not be conferred on the Chief Minister, but require to be embodied in provincial statutes (i.e., a ‘provincial financial procedure statute’). To the extent any oversight by the Governor is necessary, this is afforded by the requirement of assent by the Governor to the annual Appropriations Statute (and other ad hoc supply statutes such as supplementary grants and votes on account).
The functions and powers of the Governor in relation to the provincial public service and Provincial Public Service Commission under Part IV of the Provincial Councils Act are indefensible from a good governance as much as a devolution point of view. The concern about politicisation that seems to be part of the rationale for vesting control of the provincial public service in the Governor is misplaced in that the Governor’s impartiality cannot be guaranteed, as was graphically illustrated with all Governors under the Rajapaksa regime, but especially those in the North and East. It serves to undermine the authority and autonomy of provincial Ministers in circumstances where the Governor chooses to interfere in provincial Ministries by using his powers over public officers. Accordingly, the Governor’s powers and exclusive discretions under Part IV of the Provincial Councils Act should be removed, and those functions should be vested in the Provincial Public Service Commission, the Chief Secretary, and Board of Ministers, as the case may be.
Moreover, in addition to the overhaul of rules, practices, procedures and structures in relation to public administration and public finance (the details of which should to be recommended by a suitable body appointed for that purpose, see below), a matter of specific importance that must be highlighted here is the sub-provincial level administrative structures that currently operate as direct agents of the central government. In line with the recommendations of the Asoka Gunawardane Committee (1996), Divisional Secretaries and Grama Niladharis must be brought under the provincial public service.
What are the possible modalities of change?
Reform of the substance of the statutory powers relating to especially finance and the provincial public service in the directions suggested here would enhance the autonomy of the elected provincial executive substantially.
There are three possible modalities of introducing these changes to the underlying statutory regime of the Thirteenth Amendment. The first is by way of piecemeal amendments to the Provincial Councils Act (and other central legislation). This would address the most serious issues requiring attention, but would not disturb the established framework too much. Secondly, the Provincial Councils Act could be repealed and replaced with a new Act, which sets out a fresh approach and also may consolidate consequential amendments to other central legislation required by a new beginning. Thirdly, the most radical option is to repeal the Provincial Councils Act, and replace it with nine different Acts, negotiated between the central government and each Provincial Council according to the needs and preferences of each Province, and setting out, within the outer limits determined by the parameters of the Thirteenth Amendment, a greater or lesser degree of devolution depending on the democratic desire of each Province.
A further innovation that is possible (indeed this applies to the first and second options as well) is that any centre-provincial autonomy agreement embodied in central legislation be made susceptible to periodic review (for e.g., every ten years). The great attraction of this approach is that it has both symbolic and substantive importance in placing the relationship between the central government and each Province at a constitutional, and as close to a notion of equal partnership, as is possible within the ultimate hierarchy necessarily dictated by the unitary state. It may be that eventually, all Provinces end up demanding exactly the same or maximum level of powers, but the symbolism of the approach remains.
Addressing the political and administrative culture of devolved governance
As has been repeatedly affirmed, one of the enduring barriers to the meaningful realisation of devolution is not so much formal structures and the text of legal or constitutional provisions, as the attitudes and dispositions of the people who implement them, especially elected political representatives and public servants. As long as there is no interest or incentive to change these attitudes, very little can be proposed by way of institutional or procedural changes that have any chance of success. Even the most acutely designed system can be denuded by apathy, hostility or incapacity, and at least part of the experience under the Thirteenth Amendment testifies to that. Dependent on leadership and commitment to change, however, the following measures are worthy of consideration.
One of the most striking features of the experience of devolution in Sri Lanka in comparison to any other system of multi-level government elsewhere, is the near total absence of co-ordination mechanisms (also known as inter-governmental relations). No devolved system can work without such supporting mechanisms, which range from political bodies for the making and co-ordination of policy, to bodies that co-ordinate public administration, to highly specialised, technical bodies that support specific aspects of governance. A future review body needs to address the specific requirements in this area. The Asoka Gunawardane Committee made several recommendations on this which continue to have relevance.
Flowing from the absence of co-ordination and consultation mechanisms between multiple levels of government, is the absence of political and administrative arrangements and agreements, which may be informal or quasi-legal in nature, that form the basis of co-operation between these levels. It is neither possible nor desirable that every detail of the functional modalities of a multi-level system should be rigidly enshrined in legal instruments, and these arrangements provide the required structure and discipline to inter-governmental relations, at the same time as remaining sufficiently flexible and amendable in response to changing exigencies of government. While this is not the place to suggest in any specific way what these future agreements should be, it is nevertheless possible to identify broad themes on which such agreements are desirable.
A general ‘concordat on executive power’ between the central government and the provincial administrations seems advantageous for a number of reasons. First among these is that such a concordat can articulate broad principles in the exercise of governmental power as between multiple levels of government. These principles reflect political, not legal undertakings. Broadly such a concordat should seek to regularise and ensure mutual respect for constitutionally assigned spheres of activity by ensuring adherence to such principles as devolution (autonomy of the provincial sphere), co-operation, legality, transparency and democracy.
Within the broad framework of an executive concordat, it is possible to envisage further protocols or agreements between the central government and the provincial level on such matters as the exercise of concurrent legislative powers (for e.g., by the central government choosing not to exercise those powers except where there is a pressing necessity), the exercise of the discretionary powers of the Governor (excluding the transfer of other statutory functions to the Board of Ministers as proposed above), inter-ministerial working arrangements, budgetary procedures and allocations, and substantive policy areas including development, sectoral/industrial matters (for e.g., tourism, fisheries, agriculture, natural resources, etc.).
The experience of Provincial Councils in the past two and a half decades demonstrates that the full constitutional extent of devolution that is possible by an innovative and flexible approach to the implementation of the Thirteenth Amendment has not been realised. Indeed, it has never been attempted. This is due to straightforward non-implementation of constitutional provisions, or because of attempts at clawing back the constitutional scheme through central legislation or administrative and political practices.
The full implementation of the Thirteenth Amendment therefore requires a thoroughgoing review of these laws, policies, and practices. The possibilities and policy options that are available in this exercise have been suggested, albeit in outline, in the preceding discussion. In the final analysis, however, no amount of institutional reform is likely to succeed without the critical element of political will and commitment to making devolution work. The gubernatorial appointment for the North is a promising step that must be consistently built upon by the new government in ensuring that we completely change the way we approach devolution in Sri Lanka.
In addition to the matters highlighted above, a more comprehensive review of the experience of devolution, akin to that undertaken by the Asoka Gunawardane Committee in 1996 is urgently needed. It should also be remembered that almost all of the issues identified by that Committee remain relevant, and much of its recommendations have not been implemented. Given that the implementation of the Thirteenth Amendment is a commitment that goes beyond the 100-day programme and would occur throughout the next Parliament, there is plenty of time for such a review body to be set up, for it to report, and for consequential legislation. A prospective review body therefore must be given a wide mandate to recommend necessary changes, including to the statutory framework of devolution, as well more generally central legislation impacting on devolution, the body of administrative rules and practices governing the operation of public administration at central, provincial and local levels, and the financial rules and procedures. In other words, a ‘comprehensive devolution audit’ must be undertaken with regard to all existing law, policy, and practice, and recommendations made for amending, repealing, and replacing anything that is inconsistent with the maximum level of devolution permissible under the constitution. Needless to say, the sustained commitment of the government to implementation is crucial, and these changes are imperative to creating a conducive political environment for negotiating higher order constitutional changes in the future.
Note: This discussion draws on a more extensive assessment of the Thirteenth Amendment through the experience of the Eastern Provincial Council entitled Devolution in the Eastern Province: Implementation of the Thirteenth Amendment and Public Perceptions, 2008-2010, published by the Centre for Policy Alternatives (CPA) in 2010. This publication, available in English, Sinhala and Tamil, can be downloaded here.