NPC replys to JHU Udaya Gammanpila’s chellenge: Centre does not allow North & East PCs to use the devoled powers

In an interview given to the Daily News of 24.04.14, Western Provincial Council minister Udaya Gammanpila has taken issue with a statement of the National Peace Council with regard to Provincial Councils in the North and East. He has quoted from the NPC statement that “although the government has held elections in the Northern Provincial Council, it is useless unless the Council is allowed to function without undue interference from the centre”.

He says “I challenge NPC activists to name any powers which the center has withheld from the Northern Provincial Council that are enjoyed by the other Provincial Councils” and goes on as follows:  “They say that a measure of autonomy must be given to the Tamils. This is to allude that Provincial Councils have no autonomy.  All the Provincial Councils in the country, including the Northern Provincial Council have autonomy in regard to their administration,” he adds. 

The NPC wishes to reply to this challenge by Mr. Udaya Gammanpila regarding the actual devolution of power to the PCs and to name any powers which the centre has withheld from the Northern Provincial Council that are enjoyed by the other PCs.

Although on paper the same powers are devolved to all Provincial Councils those in the former North-East Provincial Council and the present Northern Provincial Council have been stultified in their functioning by the manner in which the Governors of these two provinces have used their powers with respect to these two Provincial Councils (the former North –East and later Eastern Provincial Council) and the Northern Provincial Council. Unlike the manner in which the Governors have functioned in the South where they have played a largely passive role and allowed the Chief Ministers and the Councils to function as per their initiative,  the Governors in the former North Eastern Provincial Council  and later in Eastern and the Northern Provincial  Councils have stymied the legislative and executive powers of these  Provincial Councils.

There are several ways of blocking statute making by the Provincial Councils.

1.       Receiving assent of the Governor is delayed withholding implementation of a statute. A quoted example is as follows: It is reported said that the  Eastern  Provincial Council (EPC hereafter) introduced a draft Bill to set up a Tourism Authority for the province, on the lines of similar Statute passed in the Southern Provincial Council. Since Tourism was a Concurrent subject, the draft statute had to be sent to Parliament in the first instance for its views. Parliament expressed certain views and the EPC decided to incorporate some of them in a redrafted statute. It was not mandatory under the law for the Provincial Council to accept the views of Parliament. It could even reject all the views expressed by Parliament. But the Provincial Council redrafted the draft statute accommodating the views of Parliament and sent it again to the Governor for his recommendation.  The procedure stipulated in the Provincial Councils Act No 42 of 1987, is to first obtain the recommendation of the Governor prior to  introducing any  Bill to the PC vide Section  24(1) of the Provincial Councils Act. (This Section strictly refers to matters involving taxation and money matters).  But the Governor insisted that he would not give his recommendation unless the draft was in line with the views of Parliament. With regard to this draft Statute on Tourism the Governor took up the position that it exceeded the scope of the Provincial Council and is in conflict with the powers of the central government ( despite a similar Statute  already passed by the “Southern Provincial  Council) and wanted the Bill referred to Parliament a  second time to get its concurrence. But the law requires only consultation [Art. 154G () (5) (b)] and not the concurrence of Parliament. In the first instance Parliament took up the position that the statute had to be redrafted and that the EPC should not pass the Statute in that form. This was done but there was no necessity for the EPC to consult Parliament the second time to get its concurrence as decided by the Governor. The draft Statute was not allowed.

2.       The Governors in the North and East are also insisting that before any devolved subject or function is implemented by a Provincial Council it must necessarily pass its own Statute after obtaining the recommendation of the Governor and then after passing it in the Provincial Council, obtain the assent of the Governor.  But the Provincial Councils Act was an enabling Act to facilitate the provisions of the 13th Amendment to be given effect to. There was also the Provincial Councils (Consequential Provisions) Act No. 12 of 1989. which empowered Provincial Ministers in the same manner as the national level Ministers in respect of  laws passed before  the setting up of the Provincial Councils where the subjects and functions and been devolved to the Provincial Councils.  So a Provincial Council was required to pass a Statute only to regulate the manner in which a particular function of a Provincial Council, not provided for earlier, was to be carried out. But it is reported that in practice the Governor is insisting on such a Statute for every exercise of power by the Provincial Councils referred to, despite the Consequential Provisions Act. He is also exercising his discretion in recommending or giving assent to any such draft Statute.

3.       The 13th Amendment provides that if the Governor is unwilling to assent to any Statute approved by the Provincial Council he should send it back to the Provincial Council for reconsideration and amendment by the Provincial Council and if it is passed a second time he must either give his assent or refer it to the President to be referred to the Supreme Court to determine its constitutionality. He has no other option. But the Governor of the EPC chose to keep a statute with him and effectively disallow it by default. This is an unwarranted exercise of power to nullify the powers of the Provincial Council. The Governor is also required to give his assent to Statutes passed by the  Provincial Council before it can come to force  (Article 154H) and he could therefore withhold his assent.

4.       Even if the Statute is sent to the President after passage for the second time the Governor can obstruct its passage by delaying its sending  to effectively by-pass the one month stipulation in the Constitution [Article 154H (4)]. That would stop the President from referring it to the Supreme Court.

5.       Agrarian Services and Minor Irrigation taken over by the Centre:

It would stand to reason that minor irrigation works and rural development activities should be logically with the PC and even the Pradeshiya Sabhas. This is particularly relevant for the Dry Zone where the Agrarian Services play an important role. It was so in the beginning of the operations of the Provincial Councils up to 1990.  But the Centre in 1990 appointed the Provincial level Agrarian Service Commissioners as Additional Commissioners of Agrarian Services of the central government department and paid them an extra allowance.  This was followed by passing an administrative order which brought all the employees of the Agrarian Services Department at the provincial level to be part of the central government Department of Agrarian Services. In 1994, in a case brought up in the Provincial High Court of the Central Province, the Court held that the subject of agrarian services which includes mirror irrigation was not a devolved subject. This matter was challenged subsequently before the Supreme Court in the case of Madduma Bandara vs. The Assistant Commissioner of Agrarian Services. The Supreme Court held in 2003 that agrarian services was a devolved subject and directed the High Court of the Central Province to hear the case and determine it. The Court included the Chief Justice Sarath Silva and Justice Shirani Bandaranayake. But the Central Government has disregarded this judgment of the Supreme Court and continues to keep the subject under its control. With these proceedings of the Courts on one side the Centre under the guise of laying down national policy on the rights of tenant cultivators, repealed the existing Agrarian Services Act No. 58 of 1979 as amended by Act No. 4 of 1991 and enacted the Agrarian Development Act No. 46 of 2000. The EPC prepared its own Agrarian Services Statute in 2011 and submitted it to the Governor for his recommendation. He refused to recommend the same stating that the Statute of the EPC was inconsistent with the Agrarian Development Act. The EPC thereupon amended the long title of its statute stating that the statute was to be consistent with national policy and submitted the same for the Governor’s recommendation. This was not given.

6.       In another instance, the EPC passed the Chief Minister’s Fund statute twice and sent it to  the Governor for assent, who in turn referred  that Statute  to the President to be referred to the Supreme Court as per the provisions of the law (Article 154H(4). But the President did not refer it to the Supreme Court even though this referral to the Supreme Court is a requirement of the Constitution.

Mr. Udaya Gammanpila seems to be unaware of the several studies done by local scholars and by international institutions like the UNDP on the functioning of the Provincial Councils particularly the former North-Eastern Provincial Council.  There are several such studies such as