Sri Lanka: Summary of the report of the Sub-Committee on Centre-Periphery relations

Current framework

Recommendations

Relationship of local authorities with the centre are not mediated by the Provincial Administration, undermining the integrity of local authorities and role and function of the Provincial Councils

Local authorities to be recognized as a third tier of Government and should have authority over their subject areas including fiscal authority by collection of taxes)

Providing an opportunity for minority communities to exercise their authority

Use the local authorities to strengthen the participation of minority communities in matters that are of concern to them

Devolve more power to the local authorities while incorporating the principle of subsidiarity

Constitution to include a Local Government List specifying subject areas for the administration by local authorities

Provincial role in administration of finances has been undermined

Inadequate fund raising capacity of the local authorities by dependence on Central budgetary allocations and departmental funding allocations

Provide adequate financial resources for the local authorities

Implement a centralized tax collection system for the Provincial Councils through which finances are immediately transferred to the local authorities

Divisional Secretariat detracts from the functions of local authorities and is the central hub of resources including human resources

Use a “Boundary Commission” for demarcating and defining the administrative boundaries of Grama Niladhari and Divisional Secretariat divisions.

Ensure that Pradeshiya Sabha boundaries are coterminous with the boundaries of Divisional Secretariats

Lack of comprehensive laws regarding local authorities

Consolidate the existing laws on local authorities and codify such Acts and Ordinances and provide criteria for types of local authorities and their powers and functions.

Form smaller units of local authorities as smaller units are likely to be more effective

Establish Grama Rajya as an independent community level body to advise, assist and coordinate in development and other activities of the local authorities see below)

Criteria for defining and demarcating smaller units of local authorities to be based on population, land area, available infrastructure etc.

Lack of public consultation and engagement in status quo

Statutorily establish the Grama Rajya as a community level body.

Statutorily establish Grama Rajya institutions at a village level comprising of three or four Grama Niladhari divisions

Grama Rajya to not undermine the Provincial Councils and Local Government institutions

Grama Rajya provides an opportunity for active and direct participation by ethnic, religious and minority groups in affairs of peripheral development and other activities

Grama Rajya to assist, advise and monitor activities of local authorities, Provincial Councils and National Government

The centre provides for uniform practices regarding election, form, structure and powers of the local authorities

Upgrading of local authorities to be brought within the powers of the Provincial Councils

Estate population are unable to access the services of local authorities in their areas

Human estate sector to be declared as part of the village system and as part of the local authorities

Repeal the following sections of the Pradeshiya Sabha Act No.15 of 187

Sections 2(1), 33, 19(xiv), 19(xxii) and 134(4)

Current framework

Recommendations

Lack of cohesion amongst members of the Provincial Councils

Lack of meaningful devolution due to the Thirteenth Amendment operating under a restrictive framework.

Lack of meaningful devolution is embodied by constitutional ambiguity on the exercise of executive and legislative authority over subjects assigned to the provinces, powerful executive presidency which centralizes executive authority and limited fiscal authority

A vibrant democracy requires opposition to provide for preventing omissions and commissions which are manifestly wrong and cause ineffective and inefficient administration.

Prevent the establishment of a multiparty system such as the Board of Ministers as it would undermine devolved power.

Establish a multiparty committee system which should be strengthened to enable oversight functions and not restrict such committee to a consultative role.

Current framework

Recommendations

The unelected Governor is vested with a multitude of powers to intervene, control and regulate the executive and legislative functions of the provinces

Certain provisions of the 13^th amendment and the Provincial Councils Act No.42 of 1987 undermine the authority of the Provincial Executive.

Reform the powers of the Governor in respect of exercise of his own discretion. Repeal Article 154C and 154F1)-3) of the Constitution and replace the Provincial Council’s Act No.42 of 187 with a new Act.

Reference to Governor/Minister in Acts of Parliament relating to provinces should be construed to mean reference to the relevant Chief Minister or Provincial Minister.

Article 154C, 13^th Amendment provides that the Governor shall exercise executive power ‘either directly or through the Board of Ministers or through officers subordinate to him’– i.e. the officers of the Provincial Public Service are subordinate to the Governor, and are obliged to be loyal to the Governor, and not the Provincial Executive.

Provincial Public Service to be brought under and independent Public Service Commission similar to the National Public Service Commission.

Provincial Police Commission to be brought under an independent Provincial Public Service Commission similar to the National Police Commission.

Article 154F, 13^th Amendment provides that that Chief Minister and Board of Ministers can ‘aid or advice’ the Governor. However, the Governor can act on his own discretion. Such an exercise of his discretion cannot be questioned in a court of law.

The Governor to be a nominal head who is constitutionally required to act on the advice of the Chief Minister and Board of Ministers.

The Governor’s Powers with regard to Provincial Statutes is not justifiable

E.g. Any statute made by a Provincial Council may only come into force upon the assent of the Governor.

The Governor may withhold his assent or ask for the statute to be reconsidered on the basis that it is unconstitutional, but there are no specified time periods within which the Governor must assent to or return the statute.

The requirement of the Governor’s assent should be repealed

Instead, Provincial Statutes should come into force when the Chairman of the Council signs the statutes passed by the Provincial Council.

Provincial Statutes should be subject to judicial review by the Constitutional Court

Statutes of the Provinces to be subjected to pre and post judicial review by the Constitutional Court.

*Alternative Expert opinion: The Governor should be given a specified time within which to assent to or return a statute. If he fails to do so within the prescribed period, the statute shall be deemed to have been assented to.

If the Provincial Council enacts the statute contrary to the Governor’s recommendations, he must refer the issue to the Constitutional Court within a specified time. If he fails to do so, the statute shall be seemed to have been assented to.

Bills with financial implications cannot be introduced into the Provincial Council for consideration, without the Governor’s consent

Board of Ministers to grant approval for introducing financial bills. The requirement of the recommendation of the Governor for statutes that have financial implications to be repealed.

Issues pertaining to break down of law in the Provinces

Central Government’s power to bring the provincial government under direct rule for any actual or threatened breakdown of law and order in the provinces to be strengthened to deal with real or imminently real grounds which are to be assessed objectively.

Governor is appointed by the President

Governor to be appointed by the President with concurrence of the Chief Minister.

Governor should not have played an active role in politics for a specific period of time before his appointment.

Current framework

Recommendations

Currently, the Governor is vested with a wide range of powers regarding the Provincial Public Service including schemes of recruitment, codes of conduct, and principles to be followed when making promotions and transfers.

The existing Provincial Public Service Commission is largely subservient to the Governor of each province whereby the Governor has the power to alter, vary or rescind, any transfer or dismissal or other order relating to a disciplinary matter.

The Chief Minister and Board of Ministers advise the Governor only in instances where the Constitution provides that the Governor is required in accordance with such advice according to the Constitution .

Therefore, the Governor is vested with unfettered executive functions of the Provincial Council.

Establishment of a Provincial Public Service Commission PPSC)

-The Provincial Public Service Commission to be constituted as an independent Commission such as the National Public Service Commission.

-PPSC to have powers of appointment, promotion, transfer, disciplinary control and dismissal of employees of the Provincial Public Service PPS).

-PPSC to decide on the cadre required for each Province, based on criteria which are equally applicable to all Provinces.

-PPSC should, in coordination with the other Provinces, have uniform professional standards at the centre and provinces.

-PPSC should have an apex committee to maintain a uniform standard among the inter-provincial public service

All Island Service:

-Release and transfer of All Island Service Personnel to be decided by the National PSC in consultation with the PPSC.

-All Island Services to be limited to Sri Lanka Administrative Service, Sri Lanka Engineering Service, Government Medical Officers Service, Sri Lanka Police Officers Service, Sri Lanka Scientific Officers and Sri Lanka Accountants Service as specified in the Constitution.

– Public Officers belonging to an All Island Service of similar rank/category should be equal in every respect including remuneration. This will not prejudice the right off the Provinces to offer additional incentives

Local Government Service

-Public officers attached to the Local Authorities in each province could either belong to the PPS of that province or a separate Local Government service could be created in each province to meet the needed of the Local Authorities

Employees of the LGS should have opportunities to secure employment in or transfer to the PPS or NPS

– For Public Officers belonging to the PPS and LGS, the relevant Provincial Council shall have the right to determine remuneration and terms of service

Provincial Public Service

-Provinces to have the authority to create its own PPS and absorb service personnel required for effective functioning of the provinces.

-Board of Ministers of the Province should have power to determine all matters relating to officers of the PPS.

-Every public officer recruited by the provincial public service commission, should serve in that province for a minimum period of time before seeking transfer

-PPS Employees should have opportunities to secure employment in or transfer to the NPS

-Members of the PPS should be able to appeal to the Administrative Appeals Tribunal against decision of the PPSC to address their grievances

Restructuring District Administration

District Administration should be restructured so as to for part of the provincial administration. This entails :

-Government Agents and Divisional Secretaries should belong to an All Island Service and hold the rank of an Additional Secretary and Deputy Chief Secretary

-All Grama Niladharis should be absorbed into the Provincial Public Service

Other Recommendations :

-There should be a Provincial Management Service (PMS) to handle administration and members of the PMS should be transferable between provinces

-The Chief Secretary and Secretaries to the Provincial Minister should be appointed by the Governor, on the advice of the Chief Minister and the Board of Ministers.

-Each Province should have a Provincial Advocate Department and a Provincial Legal Draftsmen (Suggested by the Chief Minister of the Uva Province)

Expert Opinion : The Centre would require its own representatives within the Province with regard to national list subjects. Such representatives would report to the Centre. A District Secretary may be necessary to act on behalf of the Centre SOLELY with respect to National/Centre List subjects.

Composition of the PPSC

Chief Minister and Leader of Opposition of the Provincial Council to jointly nominate persons to be appointed as members of the Provincial Public Service Commission.

In the event of disagreement between the CM and LO, the appointments can be made on the recommendation of the Constitutional Court.

The Constitutional Council CC) may recommend resubmission of names if there have been inadequate nominations, from which the CC may appoint members.

Current framework

Recommendations

Direct centre-local relations without the involvement of the provinces is detrimental to meaningful devolution

This is especially true of the Divisional Secretariat system, where the central government acts directly at the local level, without the involvement of Provincial Councils.

Constitutional Provisions should be made for Divisional and District Secretariats to carry out functions delegated by the Central Government

The District Secretariat and Divisional Secretariat should be brought under Provincial administration, while they carry out agency functions on behalf of the Centre.

District and Divisional Secretaries should be re-designated as Additional Chief Secretaries and Deputy Chief Secretaries.

The dual administration system (Divisional Secretariat under the Central Government + Local Authorities under the Provincial Councils) is very unsatisfactory. The Divisional Secretariat is far more powerful than the Local Authorities.

Distribution, coordination and demarcation of powers between national, provincial and local tiers are imprecise and unclear.

Define the role and responsibilities of the District and Divisional Secretariats

Pradeshiya Sabha boundaries should be coterminous with Divisional Secretariat Boundaries

All Grama Niladharis should be absorbed into the Public Service of the relevant Province.

Current framework

Recommendations

Highly inadequate powers of fiscal administration in the provinces.

Financial Commission to be reconstituted to have provincial representation and powers over enforcing its recommendations.

Restrain the central Treasury’s discretion over allocations by establishing a formalized liaison mechanism between the Finance Commission and the Provinces.

Allocation of funds to the Provinces to be tabled in Parliament and approved with the National Budget.

Constitution to demarcate taxation and revenue powers of the three tiers of Government.

Ensure that administration of revenue does not derogate from the financial powers of the respective tires of Government.

Repeal of Item 1 in the Reserved List, and replacement of the provision with a new provision on a form of a consultative mechanism

Under the Thirteenth Amendment, allocation of financial resources to the provinces is at the sole discretion of the centre.

Capital Expenditure allocation is termed as a Provincial Specific Development Grant which specifies every form of expenditure to be made by the provinces when using such grant.

The Provincial Fund, which includes the funds allocated to the Provinces from the Consolidated Fund and all other revenue collected by the Province, is regulated by the rules made by the Governor.

Financial Commission should formulate mandatory criteria for financial allocations to the provinces.

Constitution to prescribe for 40% of the revenue collection of the Government to be distributed to the tiers of Government on the following basis:

30% to Provincial Councils

10% to Local Authorities

Current framework/issues

Recommendations

Exercise of exclusive power by the Centre with regard to the subjects on the Concurrent list. Contrary to the 13^th amendment, the Centre rarely, if ever consults with all the provinces with regard to matters in the concurrent list.

Several subjects in the Concurrent list are legitimate functions of the Provincial list

e.g. Centre Ministries relating to Rehabilitation, Social Service, Women and Children, Disaster Relief

Abolish the Concurrent List, and add the subjects to the relevant list – Reserved List or Provincial List

The inclusion of “All Subjects and Functions not Specified in List 1 or List 11” in the Reserved List, effectively meaning that all subjects not specified in the Provincial Lists are the domain of the Centre, gives undue advantage to the Centre.

All Subjects and Functions not specified in any of the two lists (Reserved or Provincial) should be the subject matter of the Provinces.

The inclusion of “National Policy on All Subjects and Functions” in the Reserved List undermines the spirit of devolution

Removal of the rubric “National Policy on All Subjects and Functions” from the Reserved List

Current framework/issues

Recommendations

Powers with regard to Law & Order and the Police have been designated to the Provincial List.

However the requisite administrative arrangements have not been made in order to give effect to those powers.

Administration of the Police should be carried out via an Independent Provincial Police Commission

The Provincial Police Commission could work closely with the National Police Commission on administrative issues

National Police should handle organized crime – narcotics, terrorism etc.

There could be an independent Provincial Prosecutor General to prosecute provincial offenders.

Current framework/issues

Recommendations

Item 18 of the Provincial Council List provides that rights over land is the subject matter of the province, but Appendix II gives authority to the Centre to decide on several relevant matters such as final assent for disposition of land.

State land within a Province should be under the authority of the Province. However, the Central Government should have authority to require a Provincial Executive to release State land for legitimate use as specified in the Reserved List.

The taking over of any State Land under existing Acts of Parliament should be executed only with the concurrence of the relevant Provincial Council

Provincial Could must adhere to policy guidelines issued by the Land Commission

The State Land Commission should have an equitable and representative membership

There is constitutional ambiguity regarding land as it is mentioned in both the Provincial Councils list and the Reserved List.

Current framework/issues

Recommendations

See No.3 on Powers of the Governor with regard to assenting to Provincial Bills.

There should be a Constitutional Court for:

-pre and post judicial review of statutes passed by provincial councils

-Resolution of disputes between the Central Government and the Provinces