President’s speech to the Parliament is to be understood correctly. He keeps telling about the decentralization of powers through Provincial Councils (PCs). However, it is to be noted that he refers to TWO types of PC systems which are structurally and functionally different from each other. One type is the PCs created by the 13th Amendment. The other is PCs proposed to be created by the Steering Committee Report of the Constitutional Assembly dated 21.09.2017. But he entangles both PC systems in the same speech, causing confusion and misdirection in the minds of the public. These come as two alternative or consequential strategies for the gradual (in his words) “establishment of decentralized governance”.
Strategy 1: Maximum powers to existing PCs (Without amending the Constitution)
The President expressed his intention to go for maximum decentralization of powers within the permitted limits of the present constitution.
In that several new laws would be introduced with the following objectives; i.e.- “Appointment of Divisional Secretaries (apparently at the PC level), Granting Authority to Provincial Councils for Education-related Services; This involves exercising all powers related to school education listed in Schedule 3 of the Provincial Council List, Establishment of Provincial Boards for Vocational and Technical Training Services, Empowerment of Provincial Councils to Establish Universities, Authorization for Provincial Councils to Provide Grassroots Agricultural Innovation and Services, Creation of Provincial Tourism Promotion Boards, Amendment to the Industries Act to Increase the Limit For industries of national importance, to raise the limit from Rs.4 million to Rs.250 million or 500 million if the Parliament agrees, Correction of Errors in Delegated Functions to Provincial Councils and Establishment of District Development Councils in accordance with the 13th Constitutional Amendment.”
He also stresses the need to change the Provincial Council Act No. 42 of 1987 to irradiate confusion on precise definitions regarding the responsibilities of provincial council ministers, their secretaries, and other officials.
He proposes to amend the Provincial Councils Elections Act to adopt the District Proportional System for Voting and allow Members of Parliament to contest in provincial council elections.
Granting Police powers to PCs and other controversial matters would be handled carefully, he said.
In short, the President strategizes to grant the maximum and excessive powers to the PCs without amending the constitution by taking the following measures;
A) Letting free the Governors and other officials carrying out executive powers at the PC level to function with executive and administrative powers with minimum or no interference by the President and the (Central) Government (the term “Central Government” is not technically accurate but used for convenience).
B) Weakening the legislative and executive authority of the (Central) Government by repealing or amending existing laws and regulations which deal with the subjects in the PC list and give a free hand for PCs to pass statutes usurping the maximum powers to the Province;
C) Bring necessary changes to election laws paving way for separated exercise of sovereignty by the people at the PC level, which could be manipulated to forward false claims for cessation, separation and autonomy in the future;
D) PCs would be gradually and systematically empowered with extensive executive and legislative powers and finally ended up with granting of sensitive and controversial powers such as police powers.
If such measures were taken by the President (as the head of the Executive and the State) there would be very little need to amend the constitution in order to annihilate powers of the “Central Government”.
Strategy 2; Establishment of PCs proposed in the Interim report of the Steering Committee in 2017 (By amending the Constitution).
The other system of PCs the President was referring to is one proposed by the Interim report of the Steering Committee of the Constitutional Assembly presented in 2017.
The salient difference between those two systems is based on the “direction of flow of Sovereignty” through such systems. In the Present system (under the 13th Amendment) the Power flows outwards; from the centre to the periphery, leaving much important powers at the Centre and the remaining powers needed for provincial administration at the periphery.
However, in the system proposed by the President, the power flows inwards; from the periphery to the Centre, bestowing the maximum powers to the Periphery (PCs) and the residual powers to the Centre. It is based on the “Principle of Subsidiarity”; the opposite of the present PC system.
President also made it clear of his second strategy to establish more independent and autonomous PCs in several passages of his speech.
The Interim report of the Steering Committee of the Constitutional Council proposed to make drastic changes in the existing system by applying the Principle of Subsidiarity.
It is stated that:-
“This principle of subsidiarity, (i.e. whatever could be handled by the lowest tier should be vested in it) has been generally accepted in submissions made before the Steering Committee, the Sub-Committees, as well as the Public Representations Committee for Constitutional Reforms.
The Report of the Sub-Committee on Centre-Periphery Relations also recommends that more power and authority be devolved to the Local Authorities. This principle should be a guide in deciding on the allocation of subjects and functions between the three tiers of government.”
“4.1 There is general consensus, including among the Chief Ministers who made submissions before the Steering Committee, that powers must be clearly and unambiguously divided and that the present Concurrent List should be abolished.
4.2 The Public Representations Committee for Constitutional Reforms recommends the introduction of two lists, (i.e. a National List and a Provincial Lists) and also a Local Government List.”
Accordingly, the changes proposed by the President would penetrate to the root of the Unitary State of Sri Lanka. It would convert the PCs into highly powered and independent systems of peripheral governments with little or no room for the Central Government to interfere with. The Central government will be placed in equal with PCs endangering the practical validity of Article 2 of the Constitution.
The interim report recommended the following amendments to Articles 3, 4, and 5 of the constitution, which would be forwarded for consideration by the Parliament;-
In Sri Lanka sovereignty is in the People and is inalienable, and includes the powers of government, fundamental rights and the franchise.”
The legislative, executive and judicial power of the People shall be exercised as provided for by the Constitution.”
The territory of Sri Lanka is constituted of its geographical territory as recognised under International Law, including the Provinces as set out in the Schedule of the Constitution, and including its territorial waters and airspace, together with such additional territory as may be acquired in future. Sri Lanka shall have all rights recognised by law, customs and usage, pertaining to its territory.
No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any Province or part thereof, from Sri Lanka.”
The aforementioned amendments cannot be made without a referendum.
Therefore it is highly unlikely for the President to succeed with such drastic constitutional amendments, which would change the unitary character of the Constitution.
Therefore the President may opt to implement mechanisms of the first strategy to weaken the centre and strengthen the PCs by making subtle and strategic changes in the existing legal framework in both the legislative and executive/administrative spheres.