A second house and a third level: Ideas for the new Constitution

It is possible that the poor Sri Lankan experience with centre-periphery relations was caused primarily by a majority of decision makers, politicians as well as officials, not fully buying into the 13th Amendment

Democracy is about compromise. A good Constitution will create the conditions for groups with different interests to reason together and compromise. The hurriedly-approved 13th Amendment created a second level of government in the form of Provincial Councils, but failed to provide a mechanism for the Centre and the Provincial Councils to find compromise solutions when conflicts of interest emerged. The mess of the Development (Special Provisions) Bill which has been rejected by multiple Provincial Councils vividly illustrates the need for such a mechanism.

Bills which impact the powers of the Provincial Councils are not the only problem. The 13th Amendment contains two lists which assign subjects to the central and provincial governments. A third concurrent list contains subjects that both levels of government legislate on, conditional on prior consultation with the other. The subcommittee dealing with centre-periphery relations in the current Constitutional reform process has proposed the elimination of the concurrent list because it has been routinely abused to the detriment of the provinces. 

Violations of the Ninth Schedule which assigns the subjects to three lists are widespread. For example, the Provincial Councils are entitled to impose business turnover taxes on wholesale and retail sales. Yet, this considerable source of revenue has been pre-empted by a value-added tax regime adopted without any structural accommodation being made for Provincial Councils. 

It is difficult to argue that there are no subjects that require extensive centre-province coordination. But based on the experience of three decades, it is also not possible to contend that the division of subjects has worked well. 

Improvements are needed. Useful lessons may be extracted from the experiences of other countries, not just from the language of their fundamental laws, but more importantly from how they have been actually interpreted and implemented. For example, the new mechanisms for centre-state coordination set in place by the 101st Amendment to the Constitution of India making provision for a General Sales Tax (GST) should be studied for insights on how to improve the economic aspects of devolution of power.

It is possible that the poor Sri Lankan experience with centre-periphery relations was caused primarily by a majority of decision makers, politicians as well as officials, not fully buying into the 13th Amendment, which was introduced under special circumstances. But it is not unreasonable to postulate that the absence of a second chamber and other mechanisms that would have allowed the provinces to reason together and shape central legislation or achieve compromises also contributed.

Given the concerns expressed by political parties representing geographically dispersed minorities such as Tamils of Indian Origin (IOT) and Muslims outside the Eastern Province regarding inadequate representation under MMP, there may be value in accommodating them in the second house, in addition to simply the representatives of the provincial governments and professionals needed to round out the front benches. This is a much simpler process than the conniptions that politicians and the media go through when appointments are made to the National List in order to form an effective Cabinet in Sri Lanka. This is how the world’s first woman Prime Minister entered Parliament, something many who criticise national-list appointments forget.

The Centre-Periphery Subcommittee also points out that the third level of government in Sri Lanka, local government, is not formally a part of the Constitution. By contrast, the 73rd Amendment to the Indian Constitution sets out the role of the Panchayat as the lowest level of government in that country.

The electoral system is First-Past-The-Post (FPTP) at all three levels in India at present, and by most measures is inferior to the more advanced systems we already have in place. However, unless an explicit change is made through the new Constitution or a new law, we are likely to have a different, and unnecessarily convoluted, method for electing representatives at the local government level. Bringing the third level of government into the Constitution may allow for harmonisation. 

Stronger coordination between the provincial and local government levels and the reduction of the costs of elections is worthy of consideration. For example, it may be possible to combine the provincial council and local government elections, with a subset of representatives from the third level represented in the second level legislature though not necessarily through a second chamber. At a minimum, the two sets of sub-national elections can be conducted simultaneously to minimise disruption and costs.