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13A is here to stay but it has to be fine-tuned

22 August 2023 12:12 am – 0      – 159

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 There were proposals to grant authority to the PCs to provide education-related services at the school level apart from providing other services 

Political parties have tacitly if not openly, accepted its value but seek amendments to make devolution deliver

Consensus on the need for 13A was reached by the Steering Committee formed for framing a new constitution during the 2015-2019 Yahapalanaya regime 

The recent statements made by President Ranil Wickremesinghe and those attributed to the leaders of the Samagi Jana Balawegaya (SJB) and the Sri Lanka Podujana Peramuna (SLPP) make it clear that the 13th Amendment to the constitution (13A) that devolves some powers to the Provinces has the tacit support of the Sri Lankan political parties notwithstanding overt opposition to it.
In his Special Address to Parliament on August 10, the President stated the reasons for thinking that the 13A is necessary even as he said that the working of the Provincial Councils (PCs) set up under the 13A left much to be desired and suggested changes.

The SJB’s General Secretary Ranjith Madduma Bandara said: “We are in favour of devolution and the 13th Amendment. However, we do not want them to be used as smokescreens to delay elections.” The SLPP General Secretary Sagara Kariyawasam said that for the time being, no “expansion” of the 13A should be attempted because the country is faced with a grave economic crisis. He did not say that 13A should go. In fact, when he was President, SLPP patriarch Mahinda Rajapaksa had said that if he abolished the PCs, those politicians who were demanding abolition would be the first to agitate for its retention!
If 13A exists today, it is not because of India’s pressure but because the Lankan political system finds it useful. President Wickremesinghe said this about the 13A in Parliament: “The Provincial Councils have nurtured skilled political leaders and served as stepping stones to executive and parliamentary roles. Throughout history, numerous individuals who embarked on their political journey as Provincial Council members ascended to positions of power like the executive presidency, premiership, cabinet membership, and other significant roles. Many of the Ministers currently seated in this House have traversed a path from provincial council members to Chief Ministers and beyond. None of the parliamentary political parties advocates for the abolition of Provincial Councils. Representatives from all these parties have engaged with and been part of Provincial Councils.”
“The PCs have become an enduring component that cannot be excised from Sri Lanka’s governmental structure or political landscape,” the President said.
Consensus on the need for 13A was reached by the Steering Committee formed for framing a new constitution during the 2015-2019 Yahapalanaya regime. However, the President stressed the need for the 13A to be implemented “in a manner that aligns with Sri Lanka’s development and future.”
Referring to the drawbacks in the working of the PCs, the president pointed out that the LKR 550 billion spent on them every year, needed to be examined for their rationale. Further, the division of power and authority between the PCs, the central government, and the local bodies lacked clarity. “Subjects overlapped resulting in duplication of efforts and delayed actions.”

Steering Committee’s Recommendations

The interim report of the Steering Committee on a new constitution released in September 2017 recommended (1) Ensuring the participation of PCs in the formulation of national policies concerning matters within the Provincial List; (2) Avoiding transfer of constitutionally decentralized powers from the PCs to the Central Government; (3) Abjuring the practice of taking over the implementation of the National Policy on a Provincial subject.
There were proposals to grant authority to the PCs to provide education-related services at the school level, establish Provincial Boards for Vocational and Technical Training Services and Universities, provide grassroots agricultural innovation services and promote provincial tourism.

The President said that the Industries Act needed to be amended to increase the limit for industries of national importance from LKR 4 million to LKR 250 million. This could be raised to LKR 500 million.
He proposed to establish District Development Councils to chalk out a three-year plan for each provincial council in alignment with the central government’s national policies. Central government development programmes should be customized for each district and execution should be entrusted to the PCs.
There should be a legal framework to enable MPs, PC members and members of Local bodies representing each district to collaborate effectively in this endeavour. The President further said that a committee, led by the Prime Minister, will be established to re-evaluate the List of powers held by the central government, and provincial councils. The concurrent list would also be examined. The President suggested allowing Members of Parliament to contest in provincial council elections.
On the delicate subject of granting police powers to the PCs as per 13A, the President said: “It would be more practical for us to initially focus on reaching consensus concerning other powers. It’s advisable to progress step by step.Prioritizing sensitive matters could potentially hinder the attainment of any mutual agreement.”

EPDP’s Step by Step Reform

The Eelam Peoples’ Democratic Party (EPDP) led by Fisheries Minister Douglas Devananda had submitted a step-by-step approach to the reform of the 13A.
Stage I involves retaking functions taken over by the Centre through executive means in the last 36 years. This could be done through Administrative means. Stage II involves amending (a) certain Acts that were enacted prior to the passing of the 13A so that these are in line with the provisions of the 13A. (b) repealing certain provisions of the Provincial Councils Act No. 42 of 1987 and Transfer of Powers (Divisional Secretaries) Act No. 58 of 1992 to facilitate the smooth functioning of the PCs. These amendments could be done by a simple majority in parliament of those present and voting.

The EPDP cited some cases as examples. Agriculture and Agrarian Services is a Provincial subject. But it was taken over by the Central Agriculture Ministry. That was challenged in the Supreme Court. The Court ruled that “Agrarian Services” is in the Provincial List. And yet, the Central Agriculture Ministry continued to hold on to the subject by changing the name of the Department to “Department of Agrarian Development!”.
The Turnover Tax on wholesale and retail sales is the main revenue earner for the Provinces provided in the 13A. But that tax was done away with, and the Centre began collecting the Value Added Tax (VAT) and sharing a percentage with the Provinces. The PCswere thus deprived of an independent source of revenue.
As per the Constitution, the Finance Commission’s duty is to make recommendations to the President on the principles on which funds should be granted to the Provinces. But in practice, the Finance Commission gives directions as to how the fund should be spent also. This is not the intended function of the Finance Commission.

As per the Provincial Councils Act, No. 42 of 1987, the appointment, transfer, dismissal and disciplinary control of officers of the public service of the Provinces are vested in the Governor of that Province and the Governor, in turn, could delegate that power to the Provincial Public Service Commission. But in defiance of this provision, the Secretary of the Central Health Ministry directly decides all appointments.
On the controversial issue of devolving Police Powers, the EPDP says that the PCs should be permitted to enroll Provincial police personnel for deploying them on duties “without carrying weapons, such as traffic duties, controlling crowds etc.”
Stage III involves Constitutional Provisions that need to be Repealed or Amended. The Centre’s power over National Policy on all Subjects and Functions, including those in the Provincial List, should go. The Concurrent List should also go. The requirement of the Governor’s assent for the statutes passed by the Provincial Council to be done away with. And the Governor should be appointed by the President with the concurrence of the Chief Minister.
Some of EPDP’s suggestions are too radical, but its case that there is a wide measure of agreement on most of its proposals may not be off the mark.

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