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Working of Provincial Councils in Sri Lanka — I

”It is a Parliamentary form of Government that operates in the Provinces. In relation to matters set out in the Provincial and Concurrent Lists, the Governor must act on the advice of the Board of Ministers and the Chief Minister. A Governor cannot disregard the advice of a Chief Minister and dissolve a Council on the directions of the President.
Today, we publish the summary of the report.

The Institute of Constitutional Studies (ICS) carried out a comprehensive study of the working of Provincial Councils in the 22 years of their existence.

The senior consultants who conducted the evaluation were Prof. Ranjith Amarasinghe, Emeritus Professor of Political Science, University of Peradeniya Mr. Asoka Gunawardena, Former Chairman of the Finance Commission and former Secretary, Ministry of Provincial Councils,  Dr. Jayampathy Wickramaratne, President’s Counsel and Prof. A. M. Navaratne Bandara, Head, Department of Political Science, University of Peradeniya.
ICS has published the evaluation report in all three languages under the title Twenty Two Years of Devolution: An Evaluation of the Working of Provincial Councils in Sri Lanka (Institute for Constitutional Studies, Rajagiriya 2010).

Examining the Thirteenth Amendment Bill, the Supreme Court took the view that the unitary nature of the Constitution was intact. Provincial Councils were bodies subordinate to Parliament and the President.

It is a Parliamentary form of Government that operates in the Provinces. In relation to matters set out in the Provincial and Concurrent Lists, the Governor must act on the advice of the Board of Ministers and the Chief Minister. A Governor cannot disregard the advice of a Chief Minister and dissolve a Council on the directions of the President.

The appointment of politically active persons as Governors undermines the prestige of the Governor’s office. This was evidenced by Governors of two provinces appointing a member of the ruling party at the Centre in preference to a member who commanded the support of a majority in the Council. There have been instances of undue delay in the Governor assenting to a statute. A statute referred to the President was not heard of thereafter.

The idea of Provincial Councils is stills a controversial issue for both elites and non-elites. The debate that took place in Parliament and outside, identifying them as a symbol of surrendering national sovereignty to India continues in different guises. The implementation of the 13th Amendment has been manipulated to by the political regimes in Colombo achieve their power objectives. Instead of devolving power as stipulated in the Constitution, successive governments were engaged in recentralization of the powers already given. During the last twenty two years, Provincial Councils were never given the necessary public space to justify their relevance to the Sri Lankan polity. Finally, both proactive and reactive politics involving the Provincial Council system during the last two decades have made the Provincial Councils yet another extended apparatus of the centralized governance system initiated by the 1978 Constitution.

Several Parliamentary Bills on devolved matters but not referred to Provincial Councils for their views were successfully challenged. But many such Bills may have gone unchallenged. The question whether such a Bill has “become law” is moot.

Although the Centre could make national policy on devolved subjects by framework legislation only, it has legislated for the Provinces in the guise of making such policy and declared ‘national policy’ by Cabinet decisions and Ministry circulars. A Supreme Court decision that an amending Bill on agrarian services laid down national policy was misinterpreted and provincial departments taken over by the Centre. Despite a subsequent clarification that agrarian services was devolved, the subject remains with the Centre. International best practice is for national policy to be formulated with the participation of the devolved units.

For a Provincial Council to exercise exclusive executive power, it must have its own statutes. The Provincial Councils (Consequential Provisions) Act does not take away the powers of the Centre to use pre-1987 laws and the Centre has been making use of the difficulties faced by Provincial Councils in making statutes to encroach on devolved matters.

The powers of the Governor over the provincial public service have a dampening effect on the Board of Ministers. Provincial Councils wish the Board of Ministers to have a say in the appointment of Secretaries and heads of departments and to determine matters of policy and for the provincial public service to come under the Provincial Public Service Commission. Such a change would strengthen devolution and would also be in line with constitutional provisions applicable to the national public service.

A Provincial Council is entitled to legislate by means of ‘statutes’ for a specific province on a range of subjects specified under Lists one and three in the Ninth Schedule of the Constitution. During the initial period of their existence the Provincial Councils made statutes essential for the functioning of the Provincial Council establishment and to set up the institutional structure essential for the provision of basic social services. Across the provinces few bold attempts at taking new initiatives is observed, but the statutes devoted for essential social economic development have been very few. Where the Provincial Councils are required to share responsibilities with the Centre, either through Line Ministries or on Concurrency, the record of statute making is dismal. The lack of clarity in the subjects assigned and technical difficulties such as the non-availability of competent draftspersons have been contributory factors for the poor record in making statutes. The replacement of the initial optimism of the possibility for realistic power devolution to the provinces with disillusionment caused by the subsequent recentralization measures seems to have discouraged the provincial leaders. The reality of party politics where the same party controls both the centre and the provincial councils has tended to make provincial rulers take a back seat and continue to work with existing laws which has been made possible thanks to the Provincial Councils (Consequential Provisions) Act.

Fiscally, the shift to devolution created a new provincial mandate, subject to nation policy, for delivering services as would meet the locally defined needs. Provinces were vested with powers to raise revenue and undertake expenditures, with a guarantee of fiscal transfers to meet any imbalances.

The case for devolution rests on the on its ability to address more efficiently the needs of regions and communities by matching public functions with appropriate levels of decision making power and responsibility to deliver public services. However fiscal devolution was introduced and practiced within the framework of centralized planning and budgeting rules and procedures. It failed to establish an appropriate fiscal framework to support devolution.

Several factors have constrained the performance of fiscal devolution.

a. Fiscal devolution a centralized than a shared responsibility.

b. Service delivery responsibility of provinces not clearly defined.

c. Central controls marginalized provincial finance.

d. Provincial fiscal governance lacking in participation, transparency and accountability.

e. Inadequacy of the Finance Commission in mediating fiscal devolution.

Fiscal devolution in Sri Lanka remains unfinished in establishing provinces as efficient and accountable providers of public services.

The model adopted in the devolution of power in Sri Lanka places the Centre in a dominant position in the context of Centre – Provinces relations. The dominance of the Centre is embedded in the very design of the system of devolution. The practice of devolution which entails direct interference by a range of central authorities and indirect control through allocation of funds and political pressure has reinforced this dominance. The Provincial Councils are also handicapped in the use of the powers legitimately assigned to them on account of not having a system of provincial administration which is totally under its control. Moreover the prevailing reality of having the same political party controlling both the central and provincial governments tend to make the provincial authorities routinely look to the Centre for guidance instead of being assertive and cater to the specific needs of the provinces. The Provincial Governor expected to operate as a constitutional head in the original design has evolved to function as a representative of the Executive President at the Centre.

The political and administrative leaderships failed to properly design the public administrative organization that should have been provided to the Provincial Councils, despite the Administrative Reform Committee making recommendations for the restructuring of the public administrative system of the country, post-devolution. An examination of the legal and administrative arrangements set up for the establishment of provincial public administration shows administrative de-concentration rather than devolution of government. However, provincial administrators have been able to overcome these obstacles by developing the necessary structures and practices together with several positive contributions.

The Provincial Public Administration has matured enough to take up the task of regional development within the unitary polity of Sri Lanka utilizing powers devolved by the Constitution. The administrative systems of the Provinces have proved that given power, time, space and resources, they are able to deliver public services and undertake regional development improving local governance capabilities.

Introduced under colonial rule, local authorities were assigned responsibility as providers of public health, thoroughfares and utilities. However, they were marginalized in the post-independence discourse and practice of “decentralization for development”in favour of the de-concentrated territorial administration. The issue of moving beyond the territorial administration for coordination of development was addressed through District Councils, linking the district administration with the local government system. A parallel imperative was the demand for regional autonomy by the Tamil people. District Councils established in 1983, though considered a landmark, failed on both counts, leading to devolution introduced by the 13th Amendment.

The subject of Local Government, the supervision of local authorities was assigned to the Provinces. It marginalized local authorities in the intergovernmental context of multi-level governance, continuing to function as marginal players in service provision with little intergovernmental space administratively and fiscally. Whereas local government should have deepened devolution, local authorities have got entrapped in increasingly centralized fiscal and administrative arrangements. The parallel presence of central and provincial providers delivering through the “territorial administration” has made local government incoherent as institutions of democratic governance.

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