Full implementation of 13A– Final solution to ‘national problem’ or end of unitary state? – Part VII

by Kalyananda Tiranagama

Executive Director
Lawyers for Human Rights and Development

(Continued from yesterday (03 Oct.)

President Wickremesinghe’s solution

From the statements made by President Ranil Wickremesinghe before Parliament and at public fora at different times it appears that he believes that the most urgent task before him is providing a solution to the ethnic Issue acceptable to the Tamil political parties in the North-East. Soon after assuming duties as the Prime Minister in Gotabaya Rajapaksa government in May 2022, he declared in Parliament that he would take steps to address the grievances of the People in the North and the East for meaningful devolution of power through Constitutional amendments with the consensus of other political parties. Addressing the Convocation of Kotelawala National Defence College in September 2022, he declared that he would provide a final solution to the Tamil People’s problem within the next few months and that he had already commenced discussions with Tamil MPs. In his discussions in London with the leaders of the Tamil Diaspora Groups he had told them that he would provide a solution to the Tamil People’s problem acceptable to them and sought their support for economic development in Sri Lanka. Winding up the Budget Debate in Parliament on November 22, 2022, President Wickremesinghe said that he believed that he would be able to provide a solution to the Tamil national problem satisfactory to the Tamil People, with the support of all the political parties, before the 31st of December 2022 and that it was his wish to celebrate the 75th Anniversary of National Independence on February 4, 2023 with the participation of people belonging to all nationalities in a country free from ethnic problems.

On August 9, 2023, addressing the All Party Conference in Parliament, President Wickremesinghe said that the 13th Amendment is part of the Constitution, they all are bound to give effect to all the provisions in the Constitution, and that he is ready to fully implement the 13th Amendment, granting all powers, except Police powers, to the Provincial Councils.

However, when we carefully go through his speech, we can see that he is not only standing for the implementation of the 13th Amendment fully, but is taking steps to grant powers going far beyond the 13th Amendment, and in the guise of addressing issues faced by the Provincial Councils in the implementation of their powers, is planning to enact new laws for implementation of several key proposals in the Reports of the Steering Committee and the Sub-committee on Centre – Periphery Relations of the 2016 Constitutional Assembly.

Let us examine President Wickremesinghe’s Address to All Party Conference on August 9, 2023:

‘‘The devolution of power within provincial councils is governed by the 13th Constitutional Amendment, which holds the status of the highest law of our nation. We cannot afford to disregard it. Both the executive and the legislature are obligated to execute its provisions…

‘‘Numerous issues surround the implementation of the 13th Amendment, as well as the functioning of provincial councils. … If our nation is to progress, these issues must be addressed. The 13th Amendment needs to be implemented in a manner that aligns with our country’s development and future. This can only be achieved if all parliament members come to a consensus after a thorough and open-minded discussion.

‘‘The division of power and authority between provincial councils, central government and local governing bodies lacks clarity. Consequently, subjects overlap between provincial councils and the central government, resulting in duplication of efforts and delayed actions. Instead of resolving people’s issues, problems are escalating due to these inefficiencies.

‘‘Today, I present my proposals and forthcoming actions concerning the 13th Amendment and devolution of powers to this House.

‘‘In recent years, numerous Committees associated with the Parliament have produced several documents that thoroughly examine the subject of provincial councils and their prospective trajectory. Among these documents is the interim report released on September 21, 2017 by the Steering Committee of the Constitutional Council of SL under my leadership. Importantly, all parties represented in Parliament endorsed the recommendations outlined in this interim report.

· This statement is far from the truth. Many parties represented in Parliament had their reservations on the recommendations in the Interim Report.

‘‘The Interim Report offers recommendations concerning amendments to Articles 3, 4 and 5 of the Constitution. We now bring forward these proposed constitutional amendments for consideration by the Parliament….

· Here the President speaks of recommendations in the Interim Report for amendment of Articles 3, 4 and 5 of the Constitution. Articles 3 and 5 being entrenched clauses, they cannot be amended without the approval of the people at a Referendum. Article 4, not being an entrenched clause, can be amended by two thirds majority in Parliament, without a Referendum.

· Article 4, though it is not entrenched, is a most important and vital Article in the Constitution describing in detail how the sovereignty of the people, powers of government are exercised by different organs of government – the Legislature, the Executive and the Judiciary – and enjoyed by the people.

· In many Judgements our Supreme Court has held that Articles 3 and 4 must be read and considered together in determining the constitutionality of Bills of Parliament.

· The formulation of Article 4 proposed in the Interim Report is as follows: ‘The legislative, executive and judicial power of the people shall be exercised as provided for by the Constitution.’

· At a glance this formulation appears to be innocuous. This is a crafty formulation drafted by cunning politicians enabling them to achieve their sinister motives detrimental to the people and the country to enact laws without touching Article 3.

· There is nothing in this proposed formulation of Article 4 that needs to be considered together with Article 3 in the Constitution and all the said Supreme Court Judgements will become irrelevant and the Govt would be able to pass Bills which it could not hitherto pass without being declared inconsistent with the Constitution.

The President is planning to give effect to the recommendations in the report of the Sub-committee on Centre – Periphery Relations. The following are among the main Recommendations in the Report of the Sub-committee on Centre – Periphery Relations:

(1) This Report recommends to do away with Item 1 in the Reserved List of the present Constitution ‘National Policy on all Subjects and Functions’ and make provision to ensure a consultative mechanism, involving the participation of the provincial representatives in the formulation of national policy.’

The President says: ‘‘In formulating National Policy on matters contained in the Provincial List the Central Government shall adopt a participatory process with the Provincial Council. No transfer of decentralized powers to the Central Government through the creation of national policies related to the topics within the Provincial List nor any impact on the executive and administrative powers under the jurisdiction of the Provincial Council. The executive and administrative powers required to enact the decentralised subject will remain under the jurisdiction of the Provincial Councils. The Province will retain the executive and administrative powers (implementation powers) with regard to the said power.’’

The President had stated that he would present the above proposals to Parliament as Constitutional amendments so the House could take it forward for necessary action.

· When this is done, the Provincial Council will get all the powers- legislative, executive and administrative – in respect of the devolved subject. He has craftily used the phrase – to enact the decentralised subject – instead of openly saying powers to enact legislation on the devolved subject, to cover up the real intention and the effect. Now the subject is fully devolved, the Provincial Council can pass any statute required for its implementation. The Parliament has no power to pass any legislation on the subject as it is no longer a subject in the National List.

· The Governor’s power to withhold statutes for consideration by the President also automatically disappears as there is no need for that.

In his speech the President states: ‘‘Furthermore, attention should be directed towards the report of the committee established to examine the relationship between the Parliament and the Provincial Councils, as well as the report from the Sub-committee on Centre – Periphery Relations.

‘‘Through these documents, the provincial council system is affirmed as an institutional framework that cannot be excluded from our governance system. Even parties like the JVP and JHU, which do not view provincial councils as a solution to ethnic conflicts as units of decentralization have acknowledged the need for specific amendments within the provincial council system and its unchanged aspects.

‘‘This reinforces the notion that the provincial council has become an enduring component that cannot be excised from Sri Lanka’s governmental structure or political landscape. ‘‘It is important to note that provincial councils were established not exclusively in the Northern and Eastern Provinces but across all nine provinces.’’

However, other than saying that the Provincial Councils were established and governed under the 13th Amendment to the Constitution and that they have become an enduring component that cannot be excised from Sri Lanka’s governmental structure, in his speech, the President has not given any reason as to why they should be continued or any example as to what benefit the people have received from the Provincial Councils. Nor has he pointed out how they would bring about national unity and national reconciliation through the proposed amendments.

In his own words, Provincial Councils have resulted in a colossal wastage of public funds that could have been used for the benefit of the people. This is what the President says:

‘‘Our annual expenditure on provincial councils amounts around Rs. 550 billion. Have these councils justified this investment? Has this substantial funding truly benefited the populace? This is an aspect that deserves attention. We spend Rs. 22,000 for each person every year. We are spending Rs. 22,000 that could be spent on our students for provincial councils. That is Rs. 88,000 that can be spent on a family of four. Are we getting benefits from it?’’

Provincial Councils are functioning without elected representatives and Board of Ministers since 2017. In the 9 Provincial Councils there are 9 Chief Ministers, 36 PC Ministers and 408 PC Members. The Chief Minister is entitled to the salary, perks and other benefits of a Cabinet Minister, a PC Minister entitled to the salary, perks and other benefits of a State Minister and a PC Member is entitled to half the salary, perks and other benefits of a Member of Parliament. Most probably, the above amount of Rs. 500 billion may have been calculated without calculating this expenditure. This would almost amount to the same cost required for the maintenance of the Diyawannawa lot. If this cost is also added to Rs. 500 billion one can imagine the amount of loss caused to the country.

(To be continued)