Sri Lanka: Interim report for constitutional reform: Principals of devolution

Image:A  banner at a public campaign meeting (16.08.17)by civil society group says solve the ethnic issue by devolving power .

Chapter 6 of the the Interim Report of the Steering Committee of the constitutional assembly of Sri Lanka deals with the issue of devolution.

The chapter called principals of devolution fellows:

1. Principle of Subsidiarity to Apply.

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.

2. Province to be the Primary Unit of Devolution

This also is a recommendation that had been broadly accepted. Submissions from Chief Ministers, Provincial Councils and various Sub-Committees have also proceeded on this basis. Political Parties have also generally agreed with this principle. The Centre Periphery Relations Sub-Committee Report and Public Representation Committee Report also recommend that the Province be recognized as the primary unit of devolution.

The Steering Committee accepted the proposal that the Province be the primary unit of devolution. It was also suggested that the Constitution (by way of a Schedule) should identify the geographical area / districts included within each Province, as well as the geographical area of the Capital Territory.

Provisions relating to possible merger of Provinces require further consideration. The following options have been discussed:

▪ The existing provisions of the Constitution [Article.154A (3)] relating to the possibility of two or more Provinces forming a single unit, should be retained, with the additional requirement that a referendum of the people of each of the Provinces concerned should also be required.

▪ The Constitution should not provide for merger.

▪ The Constitution recognize the Northern and Eastern Provinces as a single Province.

Community Councils

Constitutional provisions shall be made to ensure that at various levels of government and in different geographical areas, the rights of communities which are minorities within such areas are protected.

2.1 Inter-Provincial Co-operation

It is also recommended that the Constitution provide for the possibility of inter-provincial co-operation with regard to matters falling within the executive competence of such provinces.

2.2 Safeguards against secession

It is recommended that the Constitution include a clause(s) including safeguards against secession.

The Constitution should specifically state that the Sri Lankan State is “undivided and indivisible.” It should additionally specify that:

“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 Constitution shall provide adequate safeguards with regard to Public Security. Suggested principles/formulations are contained at page 26 of this Report.

3. Local Authorities

3.1 Local Authorities as a Third Tier of Government Functioning Under the Provincial Councils

It is recommended that Local Authorities should be recognized as a third tier of government functioning under the Provincial Councils, and that provision should be made to ensure that provisions relating to finance etc. do not undermine the supervisory powers of the Provincial Councils, with regard to the local authorities. While such Local Authorities would not exercise legislative power, they would be an implementing agency for specified subjects both of the Centre and the Provinces as prescribed by law.

3.2 Framework Legislation with regard to Local Authorities

It is also recommended that the Centre should be permitted to prescribe, by way of framework legislation, uniformity with regard to the constitution, election, form, structure and powers of the Local Authorities. However, upgrading of Local Authority institutions in accordance with the national standard / framework

legislation should be within the powers of the Provincial Councils. A law may be enacted providing for criteria of different types of local authorities, and their varying powers and functions.

The types of Local Authorities classified based on population / land area etc should be prescribed by law. The powers and functions of the different types of local authorities (including implementation powers) would vary. The details of such classification / powers would be decided by the framework legislation to be enacted.

4. Division of Powers Between the Several Tiers of Government to be Clear and Unambiguous

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. This was also suggested in the Report of the ad hoc Sub-Committee on the relationship between Parliament and Provincial Councils.

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.

The Steering Committee is of the view that there should be a National List (Reserved List) and a Provincial List. It was also decided to consider retaining a Concurrent List specifying subject areas which are necessary to be retained in a concurrent list.

National List will include subjects which are necessary to ensure Sovereignty, Territorial Integrity, Defense/National Security and Economic Unity of Sri Lanka.

4.3 Parliament may by law provide for the implementation of functions on selected Subjects in the National List by the Provinces.

4.4 Parliament or Provincial Councils may by law/statute provide for the implementation of specified functions within their purview, to be carried out by the Local Authorities.

5 National Policy, National Standards and Framework Legislation

Two aspects need to be considered:

1. prescribing ‘national standards’ and enacting ‘framework legislation’
2. formulation of ‘national policy’

5.1 National Standards / Framework Legislation

In particular areas, there could be a necessity for the Centre to prescribe National Standards (e.g. Healthcare, Education, Environment) or Framework Legislation (e.g. Local Authorities’ constitution, powers, functions, elections, and Provincial Councils Elections).

Therefore, the Constitution should identify and include specified items in respect of which the Centre can enact framework legislation or national standards.

With regard to National Standards, such minimum standards may be prescribed where it is necessary to ensure: a) the enjoyment by citizens of a reasonable minimum standard of living throughout the country; b) the enjoyment by citizens of a reasonable minimum standard of state service delivery throughout the country; or c) a reasonable minimum standard of environmental protection throughout the country.

The Centre may also prescribe national standards by way of regulations under authority of law, in the circumstances specified above. Provided that such regulations shall not be valid unless approved by both Houses of Parliament. The substantive and procedural validity of such regulations may be challenged in the Constitutional Court.

* A Constitutional Court has been recommended in the Reports by the Sub-Committees on the Judiciary, Fundamental Rights and Centre-Periphery Relations.

5.2 National Policy

The Steering Committee was of the view that National Policy should be a matter for the Cabinet of Ministers. The following points were also noted:

1. The Constitution should have a substantive separate Article dealing with National Policy. This should not be included in the Reserved List (which deals with legislative powers);
2. In formulating National Policy on matters contained in the Provincial List the Central Government shall adopt a participatory process with the Provincial Council;
3. Formulation of National Policy on a Provincial List matter would not have the effect of the Centre taking over executive or administrative powers with regard to the implementation of the said devolved power;
4. The Province will retain the executive or administrative powers (implementation powers) with regard to the said devolved power;
5. The Constitution should provide circumstances in which the Centre can prescribe National Policy. The following adaptation of Article 72 of the German Constitution is suggested-

The Centre may formulate National Policy on a devolved subject if a need for National Policy arises because:

1. such matter cannot be effectively dealt with by the legislation or policy of an individual Province; or
2. the maintenance of legal or economic unity, especially the maintenance of equivalent living conditions beyond the territory of a Province, necessitates it.
3. National Policy shall not override statutes enacted by a Provincial Council in respect of matters in the Provincial List.

Provided that in the event that the Central Government enacts legislation (to give effect to such national policy) in accordance with the Constitutional provisions relating to the enactment of legislation on devolved subjects, the relevant Provincial statutes shall be read subject to such national legislation.

6. Local Government – Implementation of Specified Functions

The Centre Periphery Relations Sub-Committee recommends that the Local Authorities should be constitutionally empowered to handle some of the agency functions or to act as an implementing agency with regard to specified functions in specified laws of the Centre and Provincial Councils. E.g. Environmental laws, Coast Conservation, Samurdhi programmes, Preschools etc.

The Steering Committee was of the view that, as with the delegation of administrative powers by the Centre, the Provinces should be authorized to delegate administrative powers to the Local Authorities, where the Provinces deem same to be necessary.

7. Governor

Several of the Chief Ministers who made submissions before the Steering Committee were of the view that executive power should be vested in the Board of Ministers, with the Governor playing a largely ceremonial role, while one Chief Minister called for the complete abolition of the position of Governor.

The Steering Committee was of the view that the Governor should act on the advice of the Board of Ministers other than where he/she is specifically authorized by the Constitution.

The Steering Committee was of the view that the Governor should be appointed by the President.

7.1 Governor to be Apolitical

The Steering Committee was of the view that Constitutional provision should be made to prohibit the Governor, while holding office, from engaging in party politics.

8. Constitutionality of Provincial Statutes to be determined only by the Constitutional Court

The Steering Committee was of the view that:

The Governor should be granted a specified period of time (e.g. two weeks) within which he/she should either assent to a Statute or return same for re-consideration. If neither is done within the specified period, the Statute shall be deemed to have been assented to.

In the event that the Provincial Council enacts the Statute, either with or without incorporating such recommendations, the Governor shall assent to same within the specified period of time given (e.g. two weeks) within which he/she should either assent to a Statute, or refer same to the Constitutional Court for a consideration of constitutionality. If neither is done within the specified period, the Statute shall be deemed to have been assented to.

The Steering Committee was also of the view that Provincial Statutes be subject to judicial review.

It is also recommended that once enacted, the Governor should be required to forward copies of such Provincial Statutes to Parliament, in order to ensure that there is a central database of all Acts and Statutes, which is publicly accessible.

9. Independent Provincial Public Service Commissions to be set up. Appointments to such Commissions are to be subject to the approval of the Constitutional Council

9.1 Provincial Public Service Commission (PPSC)

(a) The members of the PPSCs should be of high integrity with required knowledge and experience to handle the disciplinary and human resources matters of Provincial Public Service.

(b) The Chief Minister and the Leader of the Opposition of the Provincial Council should jointly nominate persons to be appointed as members of the Provincial Public Service Commission. The Constitutional Council shall approve such nominations. The Governor shall make such appointments once they are approved by the Constitutional Council.

(c) In the event the Chief Minister and the Leader of the Opposition of the Provincial Council cannot agree, appointments could be made on the recommendation of the Constitutional Council, out of the nominations made by the Chief Minister and the Leader of the Opposition of the Provincial Council.

(d) In the event that the Constitutional Council is of the view that there are insufficient persons suitable to be appointed, out of those nominated by the Chief Minister and the Leader of the Opposition of the Provincial Council, it may request them to resubmit names for consideration.

(e) The Constitutional Council shall then make the recommendations out of the nominations made by the Chief Minister and the Leader of the Opposition of the Provincial Council, or if it is of the view that the persons are not suitable for appointment, it shall then recommend alternate persons for appointment. The Governor shall make such appointments once they are recommended by the Constitutional Council.

(f) The appointment, promotion, transfer, disciplinary control and dismissal of employees of the PPS should be matters for the Provincial Public Service Commission.

(g) The Provincial Public Service Commission is responsible for the implementation of public personnel policy with regard to all Provincial Public Service employees other than the Chief Secretary, Secretaries of Ministries and

Heads of Department including appointment, transfers, promotion, and disciplinary control.

(h) The Chief Secretary shall be appointed by the President with the concurrence of the Chief Minister.

(i) Secretaries of Ministries shall be appointed by the Governor, on the recommendation of the Board of Ministers, subject to criteria specified by the Public Service Commission, and subject to the approval of the High Posts Committee of the relevant Provincial Council.

(j) Heads of Department shall be appointed by the Governor on the recommendation of the Board of Ministers, which shall consult the PPSC in making such recommendations.

10. To Advance Co-Operation between the Provinces, and the Centre and the Provinces – a Chief Minister’s Conference to be set up

It is recommended that a Chief Ministers’ Conference, comprising of the Prime Minister and the Chief Ministers of all Provinces be mandated to meet at regular intervals, in order to discuss issues of common concern, and to promote inter-provincial and Centre-Province co-operation.

The Prime Minister shall preside at the Chief Minister’s Conference.

III. STATE LAND

National List – State Land

1. State land as provided by the Constitution
2. Requisition of private property for the purposes of any matter in the National List.
3. Acquisition of private property for the purposes of any matter in the National List, subject to the payment of just compensation.

Provincial List – State Land

1. State land and its use, alienation or disposal as provided by the Constitution, and in accordance with National Land and Water Use Policy.
2. Requisition of private property for the purposes of any matter in the Provincial List.
3. Acquisition of private property for the purposes of any matter in the Provincial List, subject to the payment of just compensation.

ANNEXURE: STATE LAND

1. All State land shall vest in the Republic.

“State land” means all land in Sri Lanka vested in the Democratic Socialist Republic of Sri Lanka immediately prior to the commencement of the Constitution.

2. The foreshore, all lands, mines, minerals and other things of value underlying the ocean within the territorial waters, rights pertaining to the continental shelf and rights pertaining to the exclusive economic zone of Sri Lanka, shall continue to vest in the Republic and shall be held by the Central Government.
3. The limits of the territorial waters, the continental shelf, the exclusive economic zone and other maritime zones of Sri Lanka shall be such as are specified, from time to time, by law.
4. The regulation of the development and exploitation of mines and minerals including oil fields, petroleum and petroleum products and the collection of royalties thereon shall be a subject and function of the Central Government.
5. The reclamation of land from within the territorial waters of Sri Lanka shall be a matter reserved for the Central Government. Any land so reclaimed shall be vested in the Republic and used by the Central Government except as otherwise provided by law.
6. All State land, whether under the control of the Centre or Provinces, shall be used, subject to the Constitution, and with due regard to national land and water use policy as laid down by the National Land Commission.
7. Alienation of State land shall be made on behalf of, and in the name of, the Republic and shall be subject to national land and water use policy as determined by the National Land Commission.
8. The Centre shall be entitled, subject to national land use policy, to use State land controlled or occupied, in accordance with due process of law, in relation to subjects and functions enumerated in the National List, by the Central Government, its institutions or any public corporation at the commencement of the Constitution.
9. A Provincial Administration may negotiate with the Central Government for the release of any State land referred to above to be used for the purposes of any subject or function in the Provincial List.

The provisions of paragraphs 14, 15 and 16 would apply where the Central Government refuse to release such land.

10. The Centre shall be entitled to the use of State land, situated within the Capital Territory, alienated before the commencement of the Constitution and the title to which continues to be with the Republic at the commencement of the Constitution.
11. Every Province shall be entitled to the use of all other State land within the Province and such State land shall, subject to:

(a) the rights enjoyed, immediately prior to the commencement of the Constitution, by any person in lawful possession or occupation, immediately prior to the commencement of the Constitution, of any such land; and

(b) the provisions of this Chapter, be at the disposal of the Provincial Administration of that Province for the purposes set out in the Provincial List, and the Provincial Administration shall be entitled to exercise rights in or over such land, including land tenure, transfer and alienation of land, land use, land settlement and land improvement, in accordance with applicable written law, and subject to national land use policy.

12. The distribution of allotments of land in land development schemes commenced prior to the promulgation of the Constitution and which have not been completed shall be according to the criteria that applied to such schemes prior to the commencement of the Constitution.
13. Priority in land settlement schemes after the commencement of the Constitution shall be accorded to landless persons. Among such persons, priority shall be accorded:

(a) firstly, to persons of any sub-division, recognized by law, of the relevant District,

(b) secondly, to persons of the relevant District,

(c) thirdly, and to persons of the relevant Province, and

(d) fourthly, to other persons.

14. Where the Centre is satisfied that State land in a Province is required for the purpose of a subject in the National List, the Central Government may, after consultation with the relevant Provincial Administration, require the Provincial Administration to make available to the Central Government or to such public authority as the Central Government may specify, such land as may reasonably be required for such purpose and the Provincial Administration shall comply with such requirement.

Dispute Resolution – Land

15. Where a Provincial Council does not comply with such requirement, the President shall refer the matter for arbitration to a tribunal consisting of a member appointed by the Prime Minister, a member appointed by the Chief Minister and a Chairman nominated by the members so appointed. Where there is no agreement on the nomination of Chairman, the Chairman shall be nominated by the Constitutional Council.
16. A decision of such tribunal shall be binding on the Centre and the Provincial Council, and, subject to the right of the Government and the Provincial Council to appeal to the Constitutional Court against such decision, no other court or tribunal shall have the power or jurisdiction to inquire into, pronounce upon, or in any manner call in question, such decision.

Land Required for National Security or Defence

17. Where after consultation by the Central Government with the relevant Provincial Administration, the President, on the advice of the Prime Minister, is satisfied that State land in a Province is necessary for National Security or Defence, the President may, on the advice of the of the Prime Minister, direct the Provincial Administration to make available to the Central Government or to such public authority as the President may specify, and for reasons to be specified in such direction, such land as may reasonably be necessary for such purpose.
18. The President may thereafter, on the advice of the Prime Minister, authorize in writing a specified institution of the Central Government to take over such specified extent of land, and the said land may be dealt with accordingly.
19. The provisions of paragraphs 14, 15 and 16 shall not apply in the situation dealt with in paragraphs 17 and 18.
20. A Provincial Council, authority or person aggrieved by the aforesaid decision of the President or the takeover of such land, may appeal to the Constitutional Court against such decision or take over, seeking interim or final relief. Subject to the provisions hereof no other court or tribunal shall have the power or jurisdiction to inquire into, pronounce upon, or in any manner call in question, such decision or takeover.

National Land Commission

21. There should be a National Land Commission (NLC) established by the Constitution, along the lines of the other independent Commissions. The constitution of the NLC should ensure the equal representation of the Central Government on the one hand and the Provinces on the other, while also ensuring due representation of all the major communities.
22. The NLC should adopt a broad consultative process with the legislative bodies of the Province and the people in formulating any National Land Use Policy.

Powers and Functions of the National Land Commission

23. The National Land Commission shall, subject to the Constitution and law enacted by Parliament, be charged with:

(a) The formulation of national land and water use policy (which shall include policy relating to inter-provincial irrigation, water supply, hydropower projects), taking into account international standards relating to the appropriate amount of forest cover, exploitation of natural resources, the quality of the environment and other relevant matters.

In formulating such policy, the NLC shall afford a margin of appreciation within which the Central Government or Provincial Administrations may pursue their respective policies.

(b) The formulation of national land and water use guidelines to give effect to the aforesaid policy;

Provided that all such guidelines shall be operative only once approved with a simple majority by Parliament and the Second Chamber.

(c) Making of declarations in terms of approved national land and water use guidelines:

− with regard to areas to be designated as Reserved Forests, Conservation Forests, National Parks, Strict Natural Reserves, Nature Reserves, Sanctuaries and National Heritage Wilderness Areas, which declarations may include reviewing areas already recognized as such; and

− to the Central Government and the Provincial Administrations, with regard to protection of watersheds the appropriate amount of forest cover in each Province, conservation of fauna and flora and the protection of the environment;

Provided that all such declarations shall be operative only once approved with a simple majority by Parliament and the Second Chamber.

(d) Monitoring and reviewing land and water use and compliance with guidelines formulated or declarations made as aforesaid.

24. In formulating policy and guidelines and making declarations, the NLC shall consider the representations of, or applications made by, the Central Government, Provincial Councils, or any authority or officer thereof, or any person.
25. Where, after affording the Central Government or the Provincial Administration an opportunity to be heard, the Commission forms the opinion that the Central Government or a Provincial Administration is acting in deliberate non-compliance with guidelines or directions made by the Commission, the Commission may refer the matter to the Constitutional Court.
26. The Constitutional Court may, where it is of the view that it is necessary to do so, make permanent or interim orders directing the Central Government or the Provincial Administration (or specified officers / authorities thereof) to comply with such guidelines or directions or such parts thereof, as the Constitutional Court may direct.
27. Where the Provincial Administration acts in contravention of a permanent or interim order made by the Constitutional Court, the Constitutional Court may made order that the Central Government shall assume control over such extent of specified land as necessary to ensure compliance, for a period to be specified, or such other appropriate order.
28. The guidelines and declarations of the Commission shall be final and conclusive and shall not be questioned in any court or tribunal save and except the Constitutional Court. No other court or tribunal shall have jurisdiction to inquire into, or pronounce upon, or in any manner call in question, the validity of such guidelines or direction, on any ground whatsoever.

Inter-Provincial Irrigation Projects

29. Inter-Provincial irrigation projects are schemes where the command area falls within two or more Provinces.
30. Inter-Provincial irrigation projects and the relocation of persons displaced as a result of their implementation, shall be a subject and function of the Central Government and such relocation shall be undertaken in consultation with the Chief Ministers of the Provinces which benefit from such projects.
31. CENTRAL LEGISLATION ON PROVINCIAL LIST SUBJECTS
32. All existing Central legislation (on Provincial List subjects) will remain in force and be applicable to the Provinces until amended or repealed by legislation enacted by the Province, and accordingly the powers of Ministers and officials exercisable under such legislation shall be exercisable by the corresponding Provincial Minister or official.
33. The Centre may enact legislation on any subject in the Provincial List provided all Provincial Councils agree to such legislation.

Provided that the Centre should not legislate on matters on the Provincial Council list with regard to any Province that does not agree to such legislation, without recourse to adequate constitutional safeguards to ensure that powers devolved should not be taken back unilaterally from the Provinces.

Miscellaneous

Consequent to the enactment of the Constitution, the Provincial Councils Act and the Provincial Council Elections Act will have to be suitably amended or replaced with new legislation.