Article based on the Paper presented by Dr.K.Vigneswaran at the Discussion on Power Devolution organized by the Council for Public Policy at the BCIS on 4th July 2006

Challenges of Devolution of Powers, with particular reference to the North-East Province

 

 

Introduction


It was in 1988 that Sri Lanka began experimenting with devolution of powers to the Provinces. The 13th Amendment to the Constitution granted devolution of powers, while that Amendment was itself a consequence of the Indo Sri Lanka Agreement of 29 July 1987. The powers conferred on the Provinces had their own limitations and deficiencies. This paper would however be confined to devolution of powers, and not to any ancillary topics such as the structure of the state, sovereignty or the permanent merger of the Northern and Eastern Provinces. Those topics would call for another paper. The 13th Amendment to the Constitution devolved powers only in respect of legislative and executive spheres of governance and not in respect of the judiciary. The 9th Schedule to the Constitution introduced by that Amendment spells out three Lists as follows:

List I -Provincial Subjects and Functions
List II -Reserved Subjects and Functions
List III -Concurrent Subjects and Functions.


Constitutional Inadequacies
If one were to critically look at the three Lists, it could be observed that Appendices to List I take away powers purportedly devolved by the main text. This was one of the constitutional inadequacies, perhaps resulting from a deliberate political decision.

Examples are: The subjects of, Education, Police Powers and Lands.

Although, the subject of Roads other than National Highways is devolved on the Provinces, the Central Minister in charge of the subject has defined by Gazette notification, National Highways to be A and B class roads. This may be best described as an act of administrative scuttling of constitutional provisions.

One also notices that the Centre keeps taking over Base Hospitals under the purview of Provinces through Cabinet decisions merely by categorising those hospitals as National Hospitals, whilst only Teaching Hospitals and Special purpose Hospitals should come under the purview of the Centre. In like manner, schools are brought under the purview of the Centre by categorising them as Nationals Schools.

Although only Ports declared by Parliament as Major Ports were envisaged to come under the purview of the Centre, the Provinces cannot exercise powers in respect of even small jetties, as the subject of Minor Ports has not been listed in the Provincial List. Similarly, by not itemising the subject of Water Supply and Drainage in any of the three Lists, the Centre retains that subject as a Reserved subject, by default, if not by design.

To cap it all, the Centre reserves to itself the prerogative to interfere in any subject under the Provincial List and the Concurrent List through an item called “National Policy on all Subjects and Functions” in the Reserved List. Making good use of this item and item 21 of List I and Article 154G (10) of the Constitution, the Minister in charge of the subject of Agriculture and the Minister in charge of the subject of Social Service have been able to infringe upon the powers of the Provinces under Lists I in respect of the subjects of Agrarian Services and Minor Irrigation Works and Social Service respectively. The unitary character of the Sri Lankan State should be blamed for such infringements.

Administrative Obstacles to Implementation of Devolution of Powers


Subjects such as Housing, Food Supply, Excise, Gambling, Pawn-brokering and Incorporation of corporations confined to a Province, are subjects devolved on the Provinces by the Provincial List. However, in the actual implementation, the Provinces are precluded from exercising any of those powers as they continue to be under Central authorities in the Districts. Furthermore, powers devolved on the Provinces by the Concurrent List are treated by the Centre as its own preserve, as a second Reserved List.

Examples are: Housing, Fisheries, Electricity, Tourism, Tertiary Education, Technical Manpower Development, Urban Development, Social Service, Rehabilitation, Festivals, Exhibitions, Wild Life, Pilgrimages, Charities, Religious Institutions and Price Control.

Split Administrative Structure

Immediately after the commencement of implementation of devolution of powers, there existed in a Province the following institutions under two separate controls:

In the Province
Governor
Chief Minister and other Ministers
Chief Secretary
Other Secretaries
Heads of Provincial Institutions.
District / Divisional Heads of Provincial Institutions.

Under the Centre
Government Agents
District Heads of other Central Institutions
Divisional Assistant Government Agents
Divisional Heads of other Central Institutions
Grama Sevaka Officers.

A similar split administrative structure existed in technical institutions dealing with subjects such as irrigation, roads and buildings in the districts and Provinces. The ideal institutional arrangement for each of the technical institutions in a district would have been the hand-over of the institutional infrastructure to the Province and for the Province to provide agency services in implementing functions enumerated in List II, namely, the Reserved List. However, this did not find favour with the Centre.

Specific Problems encountered by the North-East Province
Given below is a brief description of the problems that the elected North-East Provincial Council (NEPC) and the Provincial Government (NEPG) faced from December 1988 to March 1990 with regard to the implementation of the powers devolved by the 13th Amendment.

Problems in respect of the Administrative Structure
The NEPG which came into existence several months after the other seven Provincial Governments, recognised that the implementation of devolution of powers down to the grassroots level cannot take place without the NEPG exercising control over the District Kachcheri System, the Divisional Assistant Government Agents and the Grama Sevaka Officers.

A request was therefore made to the President to transfer the District Kachcheris in the Province and the offices subordinate to it to the NEPG. The President was not agreeable to that request but decided on an alternate solution, which was, for both the NEPG and the Central Government to have control over the District Government Agents, while only the NEPG was to exercise control over the Divisional Assistant Government Agents and Grama Sevaka Officers. This solution however had an in-built failure mechanism in that the appointment and transfer of all these officers would continue to remain with the Centre. Needless to say, the failure mechanism gradually operated on the devolutionary process.

Subsequently, the President even made the appointment of the Government Agent, Trincomalee without consulting the Chief Minister, and reversed the earlier directions regarding NEPG control over the Divisional Assistant Government Agents and Grama Sevaka Officers.

The President also proceeded to elevate the Government Agents as District Secretaries on par with Provincial Secretaries. He also elevated Divisional Assistant Government Agents as Divisional Secretaries on par with Provincial Heads of Departments. These executive actions frustrated devolution of powers.

Subsequently, another decision was also taken to appoint Government Agents as Additional Chief Secretaries. Fortunately, it was not given effect to. Otherwise, this decision would have simply brought all the devolved subjects into the Reserved List!

Thus, the institutional structure to implement devolution at the district level and below became a major problem, reducing the NEPC to a glorified Municipal Council in Trincomalee.

Difficulties in the Preparation of Provincial Statutes
The Provincial Councils also faced another teething problem, namely, the preparation of statutes. They could not find capable lawyers in the Provinces who would willingly join the NEPG and assist in the drafting of statutes. Nor could they get the necessary help from the Legal Draughtsman’s Department in Colombo as that Department had its own hands full and was also being canvassed by all the 8 Provinces. On the other hand, all the Provincial Councils needed the statutes in double quick time. The enactment of the Provincial Councils (Consequential Provisions) Act by Parliament however helped to circumvent this problem at the initial stage.

Shortage of Management Services Personnel
The NEPG faced a more specific and serious problem, namely, the shortage of senior officers of the All Island Management Services to work in the Province. This problem was specific to the Province. There was an acute shortage of engineers, accountants and administrators, in that order. The Centre was not at all helpful in meeting the requirements of the NEPG. The NEPG took the next logical step of calling for applications and recruiting engineers and accountants. This was resisted by the Central Ministry in charge Public Administration. That Ministry even wrote to say that recruitment of engineers and accountants was the prerogative of the Centre. Yet, when the NEPG was earlier pleading for engineers and accountants, that Ministry turned a deaf ear. It was at that stage that the Chief Minister A. Varatharajaperumal remarked that even if the Sinhala political leadership of Sri Lanka wished to keep the country united, the bureaucrats in Colombo would ensure the division of the country.

Problems in respect of Police Powers
Lastly, this paper would be incomplete without a reference to the subject of Law and Order in the North-East Province. The 13th Amendment to the Constitution devolved police powers to a certain extent on the Provinces and also provided for the establishment of Provincial Police Commissions. Yet, none of the Provinces other than the North-East showed any interest in establishing its Police Force. However, when the North-East Province decided to set up its own Police Force and to commence recruitment, obstacles were placed before it. This led to the establishment and training of the Citizens Volunteer Force (CVF), a legal Force under the provisions of the Manpower Mobilisation Act, about which much maligning had taken place.

Conclusion
From the above experiences, one may conclude as follows:

(1) Certain politicians and a considerable number of management services officers in the public service have an anti-devolution mindset.

(2) The organisation of every one of the all island management services is not devolution- friendly.

(3) The existing institutional structures in the Provinces and the Districts are not devolution-friendly.

(4) Even after all the Provincial Councils came into existence, only the NEPG was clamouring for institutionalising devolution of powers. The other Provinces waited for the benefits of devolution to accrue to it through the efforts of the NEPG.

(5) All the three Lists of devolution given in the 9th Schedule to the Constitution are weighted in favour of the Centre, due to the unitary character of the Sri Lankan Constitution..

(6) The unitary character of the Sri Lankan Constitution helped the Central authorities, most of whom had an anti-devolution mindset, to infringe upon the powers devolved to the Provinces.

Recommendations
The catch phrase in the country today is “maximum possible devolution”. But the experience of the North-East Province shows that even minimum devolution will not be possible until the anti- devolution mindset of politicians and bureaucrats is first got rid of. My contention is that if the undermentioned recommendations are given effect to immediately, then, and then only, can we say that the anti-devolution mindset has been erased, and the country is genuinely ready for maximum possible devolution. All the recommendations given below could be implemented through executive action:

(1) Every one of the all island management services should be restructured, fixing cadres for each of the Provinces, and, the National Public Service Commission delegating its powers of recruitment to the particular Provincial cadre, to the Public Service Commission of that Province.

(2) The Central Ministers in charge of the subjects of Agriculture, Social Service and Housing who have infringed upon powers of the Provinces enumerated in List I should return those subjects to the Provinces.

(3) The Central Minister in charge of the subject of Highways should be required to re- gazette the definition of ‘National Highways’ appropriately so that the Provinces would be able to exercise powers over all class B roads as well as some of the class A roads, in addition to the minor roads that are under their purview.

(4) The Central Minister in charge of the subject of Health should be required to return to the Provinces, all Base Hospitals that had been taken over, designating them as National Hospitals.

(5) Central Minister in charge of the subject of Education should be required to hand over to the Provinces all schools currently designated as National Schools unless there are compelling reasons to retain any of them under the Centre.

(6) Executive action by the Cabinet of Ministers should restructure the institutional arrangements in the Provinces, with particular emphasis on reducing the number of Central institutions in the Districts and in bringing the Kachcheri system under the Provinces.

[Dr.K.Vigneswaran formerly of the Sri Lanka Engineering Service was a Deputy Director of Irrigation before becoming a Secretary to Government of the North-East Province. In 2000, he became a Member of the Sri Lanka Parliament. He is the General Secretary of the Akhila Ilankai Tamil United Front.]