Devolution under the 13th AMENDMENT
Neville Ladduwahetty
The defeat of the LTTE is not expected to bring a closure to Sri
Lanka’s national question. It would however, create the space for the
evolution of a political solution free of threat and intimidation.
It would also create the space for the Government to totally focus on
issues relating to resettlement, rehabilitation and development. Opinion
is that both issues need to be addressed concurrently if the military
gains are to be consolidated.
The emphasis of the International Community has been on a political
solution that addresses the concerns of all communities. While endorsing
this view, India has been particular that such a solution should be
based on the concept of devolution as contained in the 13th Amendment
and if necessary beyond.
An All Party Representative Committee in session |
These readings have influenced the deliberations of the APRC.
Consequently, the approach of the APRC has been to evolve a new and in
their view an improved version of the Provincial Council system under
the 13th Amendment.
After experiencing the functioning of the Provincial Council system
for two decades, consensus is that its costs outweigh the benefits.
Irrespective of the explanations for its below expected performance
it would be worth the cost if it served its intended purpose of
addressing the concerns of all the communities.
Since Law and Order affects all members of all communities, it would
be appropriate to assess whether the current provisions in the 13th
Amendment would assure fairness and impartiality in its dealings with
Provincial Police Commissions.
Provincial Police Commissions (PPC)
Appendix 1 of the Provincial Council List (List 1 of the Ninth
Schedule of the 13th Amendment) describes the devolved powers relating
to Law and Order.
According to Clause 4 the PPC is to consist of three members: the
D.I.G. of the Province, a person nominated by the Public Service
Commission in consultation with the President and a nominee of the Chief
Minister of the Province.
Clause 6 states: “The I.G.P. shall appoint the D.I.G. for each
Province with the concurrence of the Chief Minister of the Province.
However, where there is no agreement between the Inspector-General of
Police and the Chief Minister, the matter will be referred to the
President, who, after due consultation with the Chief Minister, shall
make the appointment”.
Clause 11.1 states: “The D.I.G. shall be responsible to and under the
control of the Chief Minister thereof in respect of the maintenance of
public order in the Province...”.
Thus in addition to the D.I.G. being under the control of the Chief
Minister, 2 out of 3 members of the PPC would in all likelihood have
political affiliations which would make them lean towards the
“interests” of the Chief Minister. To expect fairness and impartiality
under such provisions is to be naive.
In the real world the tendency for the PPC as presently constituted
would be to encourage a high degree of partiality in favour of the Chief
Minister’s interests, not to mention the interests of his/her loyalists
as well.
While attempts are being to depoliticize Presidential powers through
the 17th Amendment, provisions in the 13th Amendment foster
politicization in regard to this one aspect of Law and Order. This is a
serious anomaly that needs to be corrected. However, the task is a
daunting one because of the inbuilt procedural labyrinth.
Amendments to the 13th Amendment
Any amendment to provisions in the 13th Amendment requires
conformance to the procedures set out in Article 154G:
154G (1) “Every Provincial Council may, subject to the provisions of
the Constitution, make statutes applicable to the Province for which it
is established, with respect to any matter set out in List 1...”
(2) No Bill for the amendment or repeal of the provisions of this
Chapter or the Ninth Schedule shall become law unless such Bill has been
referred by the President, after its publication in the Gazette and
before it is placed in the Order paper of Parliament, to every
Provincial Council for the expression of its views thereon, within such
period as may be specified in the reference, and -
(a) where every such Council agrees to the amendment or repeal, such
Bill is passed by a majority of the Members of Parliament present and
voting; or
(b) where one or more Councils do not agree to the amendment or
repeal such Bill is passed by the special majority required by Article
82.
According to the above procedure it is unlikely that a President
would initiate action unless there is a public demand. This would mean
that the public would have to organize themselves to give expression to
such a demand.
legislation
Assuming a President is convinced that an amendment is needed the
process involves drafting appropriate legislation, Gazetting it, and
then circulating it to the Provincial Councils for comment. If even 1
out of the 9 Councils objects, a 2/3 majority of the Parliament would be
needed before it could become law.
Since no Provincial Council would agree to relinquish the advantages
it possess under current provisions as to the composition of the PPC,
one can be certain that any amendment in respect of Law and Order would
require a “special majority” meaning 2/3 of those present in Parliament
voting for the amendment.
Representation
The fact that it is near impossible to secure a 2/3 majority under
the proportionate representation scheme is a fact that has to be
recognised and accepted. Furthermore, in the course of his determination
Justice J. Wanasundara stated: “Factually speaking even the President
has said recently that under the proportionate scheme, no political
party would be able to secure anything more than a bare majority in the
future” (Supreme Court case on The 13th Amendment to the Constitution,
P. 347, 1987).
Equality
Thus the reality is that the public may not succeed in securing the
needed 2/3 majority to redress a provision that has the potential to
seriously undermine its right to equality before the law when it comes
to provincial matters.
In such an eventuality would not the sovereignty of the People be
compromised? As stated by Justices L.H. de Alwis and H.A.G.de Silva in
their determinations: “Article 154G (2) therefore imposes a fetter on
the Parliament in amending or repealing Chapter XVIIA or the Ninth
Schedule and thereby abridges the Sovereignty of the People in the
exercise of its legislative power by Parliament, in contravention of
Article 3 and 4 (a) of the Constitution” (Ibid).
The determination of the Chief Justice and 3 other Justices however
were: “...the legislative competence is not exclusive in character and
is subordinate to that of Central Parliament which in terms of Article
154G (2) and 154G (3) can, by following the procedure set out therein,
override the Provincial Councils.
Article 154G conserves the sovereignty of Parliament in the
legislative field... In our view 154G (2) and (3) do not limit the
sovereign powers of Parliament. They only impose procedural
restraints”(Ibid, P.320).
While legally the sovereignty of Parliament may not be compromised
the “procedural restraints” imposed prevent the People from seeking
redress due to these very restraints arising from the reality of
adversarial and coalition politics.
Sovereignty
The irony is that while Parliament which is an instrument of the
People’s sovereignty may retain its sovereignty, a fetter or an
abridgment, has been imposed on the People’s sovereignty in respect of
amending provisions pertaining to provincial Law and Order by 154G (2)
and (3); a restraint that was not there prior to the introduction of the
13th Amendment. The removal of this fetter, this abridgment, would have
to wait until such time the political formations in Parliament are
conducive to the People’s requests for amendment.
The issue raised above relates only to one aspect under the 13th
Amendment; that being Law and Order. Without fairness and impartiality
in matters relating to Law and Order there cannot be Justice and it is
both that contributes to a sense of security.
Under the current provisions where to 2/3 of the PPC is not only
partial to the interests of the Chief Minister, but also the provincial
D.I.G. is under the Chief Minister’s control, it is unlikely that the
People would experience a sense of security under the current
provisions.
Issues addressed thus far relate to amendments and repeals. 154G (3)
relate to Bills in respect of any matter. Here too, the President has to
Gazette the Bill and circulate it to all Provincial Councils. If all
Councils agree the Bill is passed with a simple majority. If some
disagree a 2/3 majority is required for the Bill to become Law.
On the other hand, if only some agree and only a simple Parliamentary
majority is possible, the Bill would apply only to those Provincial
Councils that agreed with the Bill.
Would this not foster asymmetrical devolution? If one or more
Provincial Councils request Parliament to make law on any matter, the
passage of such a law by a simple majority would apply only to those
Councils making the request. This too would foster asymmetrical
devolution.
Intensive Study
The Government is under pressure to implement the full provisions of
the 13th Amendment. If Police powers as required by the 13th Amendment
are devolved the Law and Order situation in the country would be
politicised far beyond what exists today. What impact full devolution
would have on other issues needs further intensive study.
However, since Law and Order is central to Justice and overall
security, provisions relating to Law and Order as currently constituted
need to be amended. However, since the procedures involved to amend are
the same as what is needed to repeal the entirety of the 13th Amendment,
the People should be given the opportunity to make the decision as to
whether to accept or reject the 13th Amendment by a referendum.
The suggestion may be considered by some or even many to be too late
in the day. The question to them is how familiar were they of the
existing provisions relating to Law and Order. This applies also to
those who press for devolution of Police powers. If current provisions
relating to Law and Order are acceptable to them they would be
sanctioning a politicised Provincial Police.
Repealing the 13th Amendment is justified because it is a byproduct
of a political intervention by India following the Indo-Lanka Accord.
Real independence and the right of true self-determination require that
all Sri Lankans are governed by Laws of their own making and not by what
is imposed.
Therefore, the Government has a moral obligation to its People to
create the necessary conditions for them to decide whether to accept or
reject the 13th Amendment. Only then would their long denied democratic
rights be restored in full measure. |