Remerge NE Province for Meaningful Devolution
(Courtesy: The Nation of February 10, 2008)
[The writer is the General Secretary of the Akhila Ilankai Tamil United Front. He served as the Secretary to the Chief Minister of the North-East Province at the inception of the NEPC. He has had hands-on experience in implementing devolution of powers under the 13th Amendment. He took part in the political negotiations that preceded the presentation of the Constitution Bill in the House. He was a Member of Parliament in 2000 when the Bill was debated. In 2006, he was a signatory to the Majority Report of the Experts Panel, appointed by the President to assist the APRC].
In The Nation of 3rd February 2008, Mr. Austin Fernando, my former colleague in the public service, who as an officer of the Sri Lanka Administrative Service had held several key positions, including the offices of Secretary in charge of the subject of Provincial Councils and Secretary in charge of the subject of Defence, has raised very pertinent questions regarding the Interim Advisory Council (IAC) proposed by the APRC in its Report submitted to the President on 23rd January 2008. I prefer not to refer to the Report submitted by the APRC as the APRC Proposals, but rather as an Ad Hoc Report (AHR) of the APRC, being a prelude to its main Report. The contents of the AHP is centred around implementing the 13th Amendment and the 16th Amendment to the Constitution, with particular reference to the North and East.
The Mandate of the APRC
The Proposals of the APRC which must be the response to the President’s call for a homegrown solution to the national question made on 11 July 2006 at a joint meeting of the APRC and the Experts Panel which was also graced by members of the diplomatic community and other dignitaries is being awaited eagerly by moderates among the Sinhalese, Tamils and Muslims, and the international community.
At this point, it must be emphasised that neither I, nor the Party to which I belong, the Akhila Ilankai Tamil United Front, consider the AHR of the APRC to be the political solution proposed by the APRC for the national question, in response to the call made by the President on 11 July 2006.
At the outset, I would like to look at the most irrational recommendation made by the APRC, that is the recommendation for holding an immediate election to the Eastern Provincial Council. At the meeting the APRC and Party leaders had with the President on 9th February, the President indicated that he expected interim arrangements for both the North and the East. But the APRC went overboard and recommended immediate elections and even gave a certificate that the situation in the East was conducive for free and fair elections, as if the members of the APRC were experts on the security situation in the East. Subsequently, some of them had argued that holding elections advances the cause of democracy. Perhaps they wanted to advance the cause of gun-carrying democracy. Similarly, attempting to hold elections to the Northern Provincial Council in the near future would only advance the cause of gun-carrying democracy. Elections have no meaning in a gun-carrying society. They only help to militarise the society further. In my view, an interim arrangement is required for the East as well as indicated by the President.
Distribution of Power under 13th Amendment
At the outset, it would be appropriate to have a glimpse of the Lists of power distribution in the 13th Amendment. Subjects have been grouped under three lists, namely, the Provincial List, the Reserved List and the Concurrent List. If any subject had not been mentioned in any of the Lists, that subject shall be deemed to be subject in the Reserved List. Thus, ‘Water Supply’ becomes a subject under the Centre! There are 36 items in the Concurrent List. In my view, two-thirds of the items in the Concurrent List should have been placed under the Provincial List. Further, even in respect of subjects in the Provincial List, the Centre has snatched several schools, hospitals and roads from the Provinces. Even subjects like agrarian services and minor irrigation works, social services and indigenous medicine have been grabbed by the Centre using the devious mechanism called ‘National policy on all subjects’.
The 13th Amendment devolved police powers on the Provinces by creating a Provincial Police Division under a DIG. This however was not implemented by President Premadasa, as by that time he had a deal with the LTTE and the LTTE had requested him not to give police powers to the EPRLF-led North East Provincial Council!
Most people wrongly believe that that substantial land powers have been conferred on the Provinces. It is far from the truth. The two and a half pages of an Appendix in the 13th Amendment can be summarised thus: A Province can make requests for land for any subject in the Provincial List, but not for any subject in the Concurrent List. The Province can also make recommendations to the Centre for alienation of State land in that Province, but not in respect of lands under inter-provincial irrigation schemes within the Province.
One has to advert to the Indo Sri Lanka Agreement of July 1987 which paved way for the 13th Amendment at this juncture to understand the whole picture. The Agreement signed by President J.R.Jayewardene on behalf of Sri Lanka, recognized inter alia that “the Northern and the Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples, who have at all times hitherto lived together in this territory with other ethnic groups.” It further provided for a temporary merger of the Northern and Eastern Provinces and conditions relating to a referendum in connection with a permanent merger or a demerger.
What is important to be empahssised at this stage is that the Government of India was able to persuade the Tamil side, comprising the TULF, TELO, LTTE, PLOTE, EROS and EPRLF to accept the limited devolution offered by President Jayewardene as a quid pro quo for the merger of the North and East. The Government of India promised to get enhancement of devolution later. In this context, the then Legal Advisor in the Indian Home Ministry told me sometime later that Article 154G(2) was incorporated in Chapter XVIIA in order to achieve that objective.
It is in the above context that the conduct of some of the Tamil parties have to be assessed. It does not surprise me at all that the EPDP has turned its back on the North-East merger. But what is shocking to me is that Mr.V.Anandasangaree, the President of the TULF whose erstwhile leader Mr. A. Amirthalingum fought hard for the merger in Thimphu and elsewhere, Mr.Dharmalingam Siddharthan of the PLOTE and T.Sritharan the protégé of Mr.K.Padmanabha have also turned their backs on the merger issue by giving silent nod to the AHR of the APRC.
Legality of the Interim Advisory Council
Mr. Austin Fernando raises the question whether the appointment of an IAC for the Northern Province would be legal. Such a question could be applied to the Eastern Province as well. He rightly argues that a Provincial Council has not been constituted for the Northern Province under Article 154A(2). I would go further than that and state that the two Provincial Councils established for both the North and the East under Article 154A(1) have not been constituted under Article 154A(2) since constitution takes place only upon the election of the members of such Councils. It therefore follows that a Provincial Council which has been established, but not constituted could only exercise executive powers vested in the Governor of the Province and nothing more. Legislative powers conferred on a Provincial Council cannot be exercised. As a corollary, it cannot also exercise executive powers conferred on the Province in respect of the Concurrent List since such powers cannot be exercised without the power to make statutes. Also, Articles 154K, 154L and 154M will not be applicable to the Provincial Councils of the North and East.
In attempting to answer Mr. Austin Fernando’s question about the legality of the IAC, I would like to draw from the Indian experience. In India, Presidential Rule is imposed on a State when there is a failure of the constitutional machinery and the Government of the State is dismissed and the Legislative Assembly dissolved or kept in suspended animation. At that point, the Governor of the State appoints a body of advisors to aid him in his work. This body is generally referred to as the Council of Advisors. However, this body is not established under any of the provisions of the Indian Constitution. It does not have a constitutional status. Yet they function in the name of the Governor and give directions to the State bureaucracy in the name of the Governor. They also aid the Governor in making laws, had the President requested Parliament to confer powers to make laws on him and thereafter to delegate that power to the Governor. In the present context in the North and East, it is my view that an IAC in each of the Provincial Councils could be a body of persons who are mandated to aid and advise the Governor of the Province, but only in respect of executive powers. It would however not be obligatory on the part of the Governor to act according to the advice tendered by his advisors, but there could be some unofficial arrangements made in respect of such advice.
With no powers to make statutes and with no executive powers over concurrent powers, the Governor with his IAC would appear to be a glorified Government Agent with his District Development Council. Mr. Austin Fernando has alluded to such a situation.
Options before the President
The only other alternative would be to revive the merged North-East Provincial Council, the merger of which had been held by the Supreme Court to be ‘void ab initio’ for the technical reason that section 37(1)(b) of the Provincial Councils Act No.42 of 1987, was not properly amended prior to President Jayewardene making the Proclamation under section 37(1)(a). In my view the President has to take a bold initiative and present a Bill to Parliament and amend section 37(1)(b) with retrospective effect. Article 75 of the Constitution provides for enacting laws having retrospective effect.
If the President were to take such a bold initiative he would be applying a soothing balm to the deeply hurt Tamils of this country and would be able to convince the moderates of this country as well as the international community that he is genuinely interested in sharing power with the Tamils and the Muslims. I see this as a window of opportunity for the President to prove his bona fides.