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The principles that underlay the 13th Amendment were based on the Westminster system. But the 1978 Constitution established a hybrid form of government where the principle of separation of powers required of an Executive Presidential form of government was not adhered to. Instead, the Executive arm of the State was drawn from the Legislature – the Parliament. This gave the Executive President the power over Parliament – the Legislature in addition to his powers as the Chief Executive; and it paved the way for an elected dictatorship
So the provision was for the Governor to exercise his Executive powers on the advice of the Chief Minister and the Board of Ministers of the Provincial Council except whereby or under the Constitution he is required to act in his discretion.
But the Provincial Councils Act No. 42 of 1987 (which is an Act under the Constitution) has gone beyond the constitutional requirement and given the Governor wide powers to act in his discretion without consulting the Chief Minister. This is not consistent with the 13th Amendment and the provision for Devolution of Power to a Provincial Council for the Governor is appointed by the President and not elected by the people of the Province.
The Governor has been given wide powers under the Provincial Councils Act to make rules for the allocation of business among the Ministers Section 15(1); in relation to the custody and payment of money from the Provincial Fund Sections 19(5) and 20(3).
Criticism
The criticism all along was that the administration was too centralised and that the district administration was not accountable to the local representatives of the local people. They were accountable to the Ministers in Colombo under whom the District offices and the local field officers functioned. The Kachcheri was the dominant institution in the general administration and it came under the Ministry of Home Affairs. The Local Authorities were regulated by the Ministry of Local Government. The appointments, transfers, and disciplinary control of public officers were entrusted to an independent Public Service Commission until 1972. The PSC delegated some of its powers in respect of the subordinate grades of employees to the Heads of Departments under whom they were employed
What the Tamil people wanted was devolution of power to the Provincial Councils. The spirit of this devolution was to reflect the constitutional principles under the Westminster system of government and not the Executive Presidency that was established in 1978. The 13th Amendment envisaged the pattern of devolution in India which followed a Westminster form of government where the President was not the Chief Executive but only the Head of State who was required to act on the advice of the Prime Minister except for certain reserve power to act at his sole discretion where the Prime Minister did not command a majority in Parliament.
So the principles that underlay the 13th Amendment were based on the Westminster system. But the 1978 Constitution established a hybrid form of government where the principle of separation of powers required of an Executive Presidential form of government was not adhered to. Instead, the Executive arm of the State was drawn from the Legislature – the Parliament. This gave the Executive President the power over Parliament – the Legislature in addition to his powers as the Chief Executive; and it paved the way for an elected dictatorship
The Provincial Councils were given limited legislative powers to enact “statutes” (a distinctive meaning was given to them as the laws passed by the Provincial Council). There was a Board of Ministers drawn from the elected members of the Provincial Council serving under a Chief Minister was who like the Prime Minister under the Westminster system – the first among equals and not like an Executive President.
The Executive Presidency form we adopted in 1978 incorporated disparate constitutional principles of both systems of government unlike the Executive Presidential form in USA or France where the Executive was drawn from outside Parliament.
The constitutional principles underlying the Provincial Council system were based on the Westminster form of government prevailing in India where the Governor was required to act on the advice of the Chief Minister of the State Council. Vide 154F.(1) There shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advise the Governor of a Province in the exercise of his functions. The Governor shall in the exercise of his functions act in accordance with such advice except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion”. But the Provincial Councils Act No. 42 of 1987 departed from the principles under-lying the Constitutional Amendment.
Provincial Councils Act No. 42 of 1987 undermined devolution
So the hybrid system of government at the Centre seems to have crept into the Provincial Council system as well and since the Governor was appointed at the sole discretion of the President he was given some power to act in his sole discretion under the Provincial Councils Act No. 42 of 1987.In the Westminster system the Governor could act only on the advice of the Chief Minister of the regional State Council. But the Provincial Councils Act gave power to the Governor to act in his discretion and not only in respect of his reserve power where the Constitution is violated by the Chief Minister or the Provincial Council. This law has the potential to destroy entirely the devolution of power to the PCs.
It would appear that the previous Governor of the North-East Provincial Council, Brigadier Nalin Seneviratne always consulted the Chief Minister and acted on his advice. But not so with the present incumbents in office. Under the 13th Amendment the Governor (Head of State or his representative) and under the Westminster system of government he has reserve power only in the event of the Chief Minister losing his majority in the P.C and not in normal circumstances. Of course he could refuse to allow any violation of the Constitution. In other matters he should act only on the advice of the Chief Minister if devolution of power is to be meaningful.
The fly in the ointment is the Provincial Councils Act No. 42 of 1987 which extended the subjects and functions on which the Governor could act in his sole discretion without consulting the Chief Minister and the PC. Under Section 15(2) the decisions of the Governor are deemed to be the actions of the President. But all contracts entered to by the Governor in the exercise of his executive power are to be treated as contracts and executed in the name of the Provincial Council and any actions (legal) in relation to the exercise of such executive shall be brought by or against such Provincial Council( Section 16(1) and (2). Nor can the Provincial Council discuss the conduct of the Governor in the Council (Section 18). This is despite Art154 B in the 13th Amendment which allows action to remove the Governor for moral turpitude upon a resolution of the PC by a simple majority. This Act allows for the exercise of power without responsibility and militates against accountability for executive actions. Are these not administrative anomalies if not monstrosities?
Nor can the Provincial Council (hereafter called the PC) introduce any draft “Statute” relating to several matters relating to finance or the appropriation of moneys in its budget or charge to the Provincial Council Fund in the Council without the recommendation of the Governor (Section 24). Any demand for a grant also requires the recommendation of the Governor Section (3).The Governor also has the power to authorise expenditure from the Provincial Fund (similar to a Contingencies Fund at the Centre) for a period of six months. The Governor in effect is exercising the powers of the Finance Minister at the Centre. But even these provisions require making rules and will not justify any individual acts in relation to the conduct of financial matters.
This Act also goes beyond the 13th Amendment in giving power to the Governor to act in his discretion without consulting the Chief Minister and the Provincial Council on general matters without being confined to extra-ordinary situations as in Act 154.
The entire scheme of devolution of power under the 13th Amendment has been undermined by the Provincial Councils Act No 42 of 1987. In the Westminster system the Governor could act only on the advice of the Chief Minister of the P.C. But the Provincial Councils Act gave power to the Governor to act in his discretion and not only in respect of his Reserve power or where the Constitution is violated by the Chief Minister and the Provincial Council.
The Northern Provincial Council has reached a stalemate and wants a change in the Governor. But what is warranted is an amendment to the Provincial Councils Act which should reflect the position of the Governor under the Westminster system of government. It is more than a problem of personalities. The problem has to be resolved by a suitable legislative amendment to reflect the spirit of the 13th Amendment or even repealing the Provincial Councils Act in toto.
Governor’s sole control over Public Service allows him to bypass Chief Minister and PC
Even this Provincial Councils Act provides only for the Governor to make rules on various subjects. But the Governor has taken control over the appointments, transfers, disciplinary control over the public officials. Under the pre 1972 Constitution there was the independent Public Service Commission. The 17th Amendment restored this old position but the 18th Amendment did away with the independent exercise of its powers by the PSC. But the Governor instead of the Provincial Public Service Commission was given power over the provincial public service long before the 18th Amendment. Vide Sections 32 and 33 of the Provincial Councils Act No 42 of 1987. So the officials are beholden to him, which allows the Governor to exercise his executive power through officers subordinate to him bypassing the Chief Minister and the PC. But the 13th Amendment Article154F although it allows this as an alternative, makes it subject to Art 154 F. He has full and effective control over the Provincial Council officials under the powers given to him under the Provincial Councils Act.
Article 154C of the 13th Amendment states that: “Executive power extending to the matters with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province for which that Provincial Council is established, either directly or through Ministers of the Board of Ministers, or through officers subordinate to him” but in accordance with Art 154F. The Governor has chosen the last option but it is another administrative monstrosity unheard of in the theory of Public Administration. All these provisions make the Provincial Councils a powerless body if the Governor so chooses.
It is said that the Governors in the southern Provincial Councils generally follow the advice of the Chief Ministers and exercise their executive powers through the Chief Minister and the Provincial Council bureaucracy. They allow the Chief Ministers in the PCs to act without opposing their decisions.
Legislative powers of the PC are stymied
The PC in the Northern Province was elected only recently. But there was the North- East Provincial Council earlier and it has faced the same problems which now dodge the path of the Northern Provincial Council. It is reported said that the (North) 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 P.C. 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 for the PC to accept the views of Parliament. It could even reject all the views expressed by Parliament. Once the draft statute was redrafted after the views of Parliament was obtained, it was sent to the Governor for his recommendation. The procedure stipulated in the Provincial Councils Act is to first obtain the recommendation of the Governor prior to introducing the 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 PC and is in conflict with the powers of the central government and wanted the Bill referred to Parliament the second time to get its concurrence. But the law requires only consultation (Art. 154G(4)(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 There was no necessity for the EPC to consult Parliament the second time.
The Central Government and the Governors also seem to be insisting that before any devolved subject or function is implemented by a PC it must necessarily pass its own Statute after obtaining the recommendation of the Governor and after passing it in the PC, obtain the assent of the Governor. The Provincial Councils Act was an enabling Act to enable the provisions of the 13th Amendment to be given effect to. So a PC was required to pass a Statute only to regulate the manner in which a particular function of a PC was to be carried out- in short it provides a legal framework to implement its particular function devolved under the 13th Amendment. But the Governor is exercising his discretion in recommending or giving asset to any such draft Statute.
The 13th Amendment provides that if the Governor disagrees with any draft Statute he should send it back to the PC and if it is passed a second time he must either give his assent or refer it to the Supreme Court to determine its constitutionality. He has no other option. But a Governor of the (N)EPC chose to keep a draft statute in cold storage with him and effectively disallow it by default. This is an unlawful exercise of power to nullify the powers of the PC. The Governor is also required to give his assent to every draft Statute of the PC before it can become law. (Article 154H).
The Provincial Councils Act has given powers to the Governor to act in his sole discretion and without even consulting the Chief Minister. Under the Provincial Councils Act the Governor has been given powers over the Provincial Public Service Commission (Section 32) and powers in relation to Finance and Budgeting in the Sections 19(5) and 20. But these provisions require making rules and will not justify any individual acts in relation to the conduct of financial matters
The powers of appointment transfer and disciplinary control of public servants is not vested in the Provincial Public Service Commission as previous to 1972 but instead in the Governor (Section 32) The Governor also appoints the Members of the Provincial Public Service Commission and he doesn’t have to consult the Chief Minister to do so (Section 33).
Governor is exercising the Executive power of the President at the Centre
The Governors of the North and East in short are acting like the Executive President at the Centre. They meet Heads of Departments and the Chief Secretary and give them orders directly. The Governors have to review the budget proposals even before they are tabled in the PC. They have to approve them before they can get into the budget to be tabled in the PC. The Governor’s salary and allowances are included in the provincial budget and has to be passed by the PC. He has a separate Head of Expenditure in the budget Estimates similar to that of the President at the Centre. The Governors have established Governor’s Fund on the lines of the President’s Fund. They can use the money in such Fund at their sole discretion.
Although the statutory authority for the allocation of funds to the PCs is vested with the Finance Commission in practice the allocations seem to be decided by the Treasury. The Governor has to approve every project before it can be included in the Provincial Budget.
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 Pradesiya Sabhas. 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 an un-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. The Governor simply did not budge.
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 but ignored it. But this referral to the Supreme Court is a requirement of the Constitution
Similarly the NEPC sought to collect motor vehicle revenue license fees but the Governor referred this draft Statute to the President to be referred to the Supreme Court as per the provisions of the law. But the President did not refer it to the Supreme Court but ignored it. But this referral to the Supreme Court is a requirement of the Constitution? Vide Art 154H (3) and (4).
I must acknowledge the sponsorship of the National Peace Council which enabled me to do this study by visiting the Northern Province to gather data and also the assistance of Dr. Jehan Perera its Executive Director, and several public servants both serving and retired.
I must acknowledge the assistance and contribution of Dr. K. Vigneswaran, formerly of the Sri Lanka Engineering Service, former Secretary to the Chief Minister, North-East Province and former Senior Advisor to the Chief Minister of the Eastern Province.
(The writer is an economist.)
