THE PROVINCIAL COUNCIL SYSTEM AND THE 13th AMENDMENT TO THE CONSTITUTIONT

Professor A.M. Navaratne-Bandara

Department of Political Science

University of Peradeniya

1. 1. Introduction

The present article while forwarding basic features about the Provincial Council (PC) System that was established in 1988 presents a brief survey about the issues related to the public administrative system of the Provincial Councils. The devolution debate in Sri Lanka is largely confine to the political power relations of devolution not on the administrative capabilities required for the devolved governments. However, the current experience tells us that not only politics of devolution that has to be taken into account but also the powers and capacities to be offered to these devolved institutions with respect of the enactment of laws (statutes), the fiscal powers as well as the administrative competence. The second part very briefly examined the issues related to the existing administrative system.

2. Provincial Councils and the Indo-Sri Lanka Accord

The present Provincial Council system commenced with the entrusting of the responsibility of disarming the Tamil militants to the Indian Peace Keeping Force (IPKF) through Indo-Sri Lanka Accord signed in the year 1987. The 13^th amendment which was introduced in the year 1987 established a second tier government as a political settlement to be policed by the IPKF.  At the time of signing the Indo-Sri Lanka pact there existed a belief that granting Regional Autonomy to the provinces would facilitate a solution to the ethnic problem. This position was emerged as an outcome of the All Party Conference, India playing the role of mediator. The final framework for this proposal was forwarded by the government of Sri Lanka in December 1986 and with the accepting of these proposals by the Indian government, Indo Sri Lanka pact was duly signed. The 13^th amendment to the constitution was drafted with the assistance of the consultants sent to Sri Lanka by the government of India.

Since the year 1988 the Provincial Councils were functioning for a period of twenty years as agents of the central government, and during this period the Provincial Councils became an instrument for people to exercise their sovereignty through universal franchise. The Provincial Councils have now established several administrative centers and as a result there had emerged two state services, a Central and Provincial Public Services, changing the administrative landscape at the regional level.

3. Implementation of the 13^th amendment of the constitution.

The constitution amendment facilitated devolving the legislative, executive and judicial powers of the government to the Provincial Councils. Accordingly it has been proposed to establish a Council formed of those representatives elected by the voters, who will have the power to pass statutes. It was also proposed to establish a Board of Ministers led by a Chief Minister, supported by the majority of the Council, endowed with powers to take executive decisions on the basis of the statutes and the budgets approved by the Provincial Council. There are provisions to establish Provincial High Court as the apex of the Provincial Judicial System.

However, the devolution of government power implemented during the last twenty years was limited only to the legislative and executive functions only. There is no devolution of judicial power as envisaged in the amendment. The foundation of the existing devolution is based on three lists of powers, namely, Reserved List, Provincial List and Concurrent List. Accordingly provision has been made to entrust the Provincial Councils 37 subjects including law and order, agriculture and agrarian services, local government, cooperatives etc.

Although the Provincial Councils were entrusted with statute making power to prepare these institutions cannot exceed the laws passed by Parliament. Thus the Provincial Executive has to exercise its authority within the legal framework established by national Parliament. On the other hand legislative power of Parliament is restricted by the 13^th amendment as any bill pertaining to any subject in the Provincial List it has to be referred to the Provincial Councils for their prior approval. Supposing if all the Provincial Councils do not give the approval it has to be passed by the Parliament with a 2/3^rd majority and if not it will not be valid to that particular province and such laws are not applicable.

The executive power to conduct the work pertaining to those subjects entrusted to the provinces is with the Governor appointed by the President of the Democratic Socialist Republic of Sri Lanka. There again this power entrusted to the Governor of the province is not applicable once the appointment of the Chief Minister is made by the political party or the group which won the majority of seats in the Council. Thereafter the Governor of the province has to work on the advice of the Chief Minister. The Governor has to appoint four more ministers on the advice of the Chief Minister and thereafter the Cabinet of Ministers of the Provincial Council is established with the leadership of the Chief Minister. The Governor is expected to be the executive for name sake only after empowering the executive powers to the Cabinet of Ministers.

The Provincial Secretary who is the Chief of the provincial administration is appointed by the Hon. President. A Provincial Public Service has also been established and the amendment of the constitution has empowered the establishment of a Provincial Public Service Commission in every Provincial Council.  However the leadership of the administration of provincial institutions does not come under this Provincial Public Service Commission, the reason being that they are members of All Island Services controlled by the Central Public Service Commission. The appointments for these administrative organizations are done by the Ministry of Public Administration along with parallel ministries and the National Public Service Commission administers their duties.

Provision is made to collect revenues for the Provincial Councils by way of taxation, along with business turn over taxes, stamp duties, vehicle licensing fees, fines imposed by the courts within the province. As it was agreed this income in not sufficient for the function of the Provinces, a Finance Commission has also been appointed by the constitution to advice the Central Government on the criterion of allocating funds to the Provincial Councils.

4.  Limitations upon the Provincial Councils

The Provincial Councils were not in a position to exercise its powers over the subjects in the Provincial List unless they have been handed over to them by the Central Government. If any subject in the Provincial List is handed over to the Provincial Councils it cannot be taken back by the Central Government. Further the Central Government could take back any Concurrent List subject given to the Provincial Council.

If any Provincial Council acts in contravention of the security of the state or if an emergency situation occurred in the Province Hon. President is empowered to dissolve the Provincial Council and entrust to Parliament the authority to pass the laws on the subjects in the Provincial List.

5. The Provincial Council Public Administration

1. The Provincial Councils have not been provided with the capacity to draft laws.
2. The Chief Secretary of the Provincial Council Administration is appointed by the Hon. President and the Governor as well as the Provincial Secretary is also appointed by the Hon. President.
3. The Secretaries of the Ministries and the Head of Departments of Provincial Council Administration are appointed by the Central Public Service Commission.
4. The cadre positions of the provincial public administration are determined by the Department of Management Services of the General Treasury.
5. The Provincial Councils have to depend on Treasury funds for their recurrent expenditure, as well as for the salaries of the staff.
6. As funds are required for the creation of new positions, Finance Commission too involve in approving such appointments to the Provincial Council.
7. The Provincial Councils had not been give the opportunity establish its own administration. In the beginning the administration of the Provincial Councils commenced with the officers loaned to them by the Central Government and still the system operates with the officers appointed to the cadre positions approved by the Central Government.
8. When the Provincial Councils do spend funds of the Central Government, they have to get the concurrence of the Finance Commission after submitting the proposal and the relevant expenditures and as a result there are large delays in implementing programmes.
9. Although the state allocates funds for the annual budget, they are not released on time, and this a very clear occurrence noticed for the last 20 years and about Rs. 200 billion has not been received by Provincial Councils resulting and the Provincial Councils spend the revenue it collected on behalf of Pradeseeya Sabahs.

6. Provincial Councils and self-rule

Provincial Councils were established with the intention of providing a self-rule for them but the necessary basic requirements have not been provided enabling them to a develop a self-rule. These basic requirements are administrative competence, law making capacity and resources to get necessary revenue. Consequently the important three requirements to develop Good Local Governance, namely, Performance Management, People’s Participation and Partnership between private and state sector (3Ps). Without law making capacities, administrative competence and financial resources Provincial Council are unable to improve Good Local Governance.

The Provincial Council System is an example of devolution which has been formulated strictly following the power arrangement within a unitary system of government.  What has been done is re-centralization not devolution. According to the constitution Provincial Councils should abide by the national policy guidelines given by the Central government when exercising its constitutional authority.

As noted in the previous section Provincial Councils are compelled to perform their functions using an administrative leadership whose primarily loyalty is with the by Central Government. Many competent senior officers did not voluntarily join the Provincial Councils in the beginning.   As a result what had taken place was that the traditional centralized systems as required by the Central Government in respect of administration and financial management are still being followed. This situation has aggravated on account of the General Treasury and the Department of Audit who have become state bureaucracies who insist of following those rules and regulations. Therefore devolution of power does not reflect in the provincial public administration.

It is worth noting here that these Provincial Councils are highly depended on Central Government funding. From the total revenue of the Central Government of this country the Provincial Councils are receiving only 10% for their development activities, and 90% of the state funds are spent for recurrent expenditure and salaries and maintenance work. The 90% of the state funds allocated for recurrent expenditure are used to pay the salaries of the public servants once appointed by the Central Government.

It is already evident that with in the existing framework the Provincial Councils could be a unit of development with a dedication as well as requirements more than looking into the aspect of law considering the programmes commenced and are being successfully implemented in the area of development already. As an example if it is to be mentioned the Provincial Council system should to be made responsible for the very important requirement of activities pertaining to reconstruction, restoration and recreating as at today specially, where the people of the minority races are residing.

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