Constitutional manoeuvres of separatist forces:

Move to remove the concurrent list and expand the provincial list

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From the report presented by the author at the national seminar held on May 4 at the BMICH in Colombo organised by the World Alliance for Peace in Sri Lanka

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Manohara R. De SILVA

Recently Prof. Tissa Vitarana speaking to the media said that the APRC had decided to drop the concurrent list from their proposals clearly demarcating the powers of the Central Government and the Provincial Governments. This step is a deviation from the existing unitary status paving the way for a federal form of Government that may lead to secession.

In the 13th Amendment the powers of government are enumerated in three lists namely,

1. The reserved list,

2. The provincial list and,

3. The concurrent list

The 'reserved list' embody the powers vested exclusively with the central government which cannot be exercised by provinces. 'The provincial list' include the powers given to the provinces. And the 'concurrent list' contains those powers, which can be exercised both by the central government and by the provinces.

Importance of the concurrent list

The importance of a concurrent list is that it enables both the national government and the regional governments to exercise the powers included in the concurrent list. This arrangement is important particularly in areas where communities of different religions and ethnicities are intermixed. In the Eastern Province Tamils constitute approximately 40 percent while Singhalese and Muslims constitute 30 percent each. Over 50 percent of the land area in the Eastern province is occupied by the Singhalese. Due to the terror unleashed by the LTTE on Singhalese and Muslim villages in the North and East, there is much concern among the regional ethnic minorities of the North and East of their predicament under a Tamil Regional Administration run by former LTTE members.

The concurrent list of the 13th Amendment contains a number of important subjects that are relevant to the day-to-day affairs of the people. Acquisitions and requisitions of property, social services and rehabilitation, relief rehabilitation and resettlement of displaced persons, relief of distress due to floods, droughts epidemics or other exceptional causes, restoration, reconstruction and rehabilitation of towns and public institutions, business places and places of worship, agricultural and agrarian services, health irrigation, higher education national housing and construction are some of the subjects which are included in the concurrent list in the 13th Amendment.

The importance of a concurrent list can be explained with a simple example. For instance if Padavisiripura in the Eastern Province where Singhalese constitute 100 percent or Gomrankadawela or Seruwila where Singhalese constitute 99.5 percent and 97.2 percent respectively is attacked by terrorists and the provincial/regional government fails to give relief to the people of such village, the central government, would not be in a position to help these villages unless the central government is possessed with powers in relation to social services, relief and rehabilitation.

The 2000 August draft Constitution, did not include a concurrent list, where both the central government and the provincial government could share power. This draft which was presented to Parliament as a constitutional bill listed powers such as social service, relief and rehabilitation in the regional list where only the regional government could exercise such power. In the absence of such power in the Central Government, it would be natural for the Sinhalese of the Eastern province to express fear with regard to their fate under regional administration consisting of former LTTE members.

In the Indian Constitution too, there exists a concurrent list which includes important powers such as relief and rehabilitation of displaced persons, acquisition and requisition of property etc.

In the South African Constitution, the National Legislature has the power to pass any law including the following powers enumerated in schedule 4. It is interesting to note that even in South Africa an exhaustive concurrent list is provided like in Sri Lanka. Schedule 4 is reproduced below.

Schedule 4 - Functional areas of concurrent national and provincial legislative competence

Part A

* Administration of indigenous forests

* Agriculture

* Airports other than international and national airports

* Animal control and diseases

* Casinos, racing, gambling and wagering, excluding lotteries and sports pools.

* Consumer protection

* Cultural matters

* Disaster management

* Education at all levels, excluding tertiary education

* Environment

* Health services

* Housing

* Indigenous law and customary law, subject to Chapter 12 of the Constitution

* Industrial promotion

* Language policy and the regulation of official languages to the extent that the provisions of Section 6 of the Constitution expressly confer upon the provincial legislatures legislative competence

* Media services directly controlled or provided by the provincial government, subject to Section 192

* Nature conservation, excluding national parks, national botanical gardens and marine resources

Police to the extent that the provisions of Chapter 11 of the Constitution confer upon the provincial legislatures legislative competence

* Pollution control

*Population development

* Property transfer fees

* Provincial public enterprises in respect of the functional areas in this schedule and schedule 5

* Public transport

*Public works only in respect of the needs of provincial government departments in the discharge of their responsibilities to administer functions specifically assigned to them in terms of the Constitution or any other law

* Regional planning and development

* Road traffic regulation

* Soil conservation

* Tourism

* Tourism

* Trade

* Traditional leadership, subject to Chapter 12 of the Constitution

* Urban and rural development

* Vehicle licensing

* Welfare services

Part B

The following local government matters to the extent set out in Section 155(6)(a) and (7):

* Air pollution

* Building regulations

* Childcare facilities

* Electricity and gas reticulation

* Firefighting services

* Local tourism

* Municipal airports

* Municipal planning

* Municipal health services

* Municipal public transport

* Municipal public works only in respect of the needs of municipalities in the discharge of their responsibilities to administer functions specifically assigned to them under this Constitution or any other law

* Pontoons, ferries, jetties, piers and harbours, excluding the regulation of international and national shipping and matters related thereto

* Stormwater management systems in built-up areas

* Trading regulations

* Water and sanitation services limited to potable water supply systems and domestic waste-water and sewage disposal systems.

Expanding the provincial list

What has been given in South Africa exclusively to the provincial legislature are set out in schedule 5 of their Constitution which is reproduced below. It is interesting to note that this list is not as exhaustive as our provincial list.

Schedule 5 - Functional areas of exclusive provincial legislative competence

Part A

* Abattoirs

* Ambulance services

* Archives other than national archives

* Libraries other than national libraries

* Liquor licences

* Museums other than national museums

* Provincial planning

* Provincial cultural matters

* Provincial recreation and amenities

* Provincial sport

* Provincial roads and traffic

* Veterinary services, excluding regulation of the profession

Part B

The following Local Government matters to the extent set out for provinces in section 155 (6) (a) and (7):

* Beaches and amusement facilities

* Billboards and the display of advertisements in public places

* Cemeteries, funeral parlours and crematoria

* Cleansing

* Control of public nuisances

* Control of undertakings that sell liquor to the public

* Facilities for the accommodation, care and burial of animals

* Fencing and fences

* Licensing of dogs

* Licensing and control of undertakings that sell food to the public

* Local amenities

* Local sport facilities

* Markets

* Municipal abattoirs

* Municipal parks and recreation

* Municipal roads

* Noise pollution

* Pounds

* Public places

* Refuse removal, refuse dumps and solid waste disposal

* Street trading

* Street lighting

* Traffic and parking

To be continued