Constitutional manoeuvres of separatist forces:
Move to remove the concurrent list and expand the provincial list
On a comparison of the provincial legislative powers enumerated in
the South African Constitution with ours, it will be seen that in the
South African Constitution exclusive powers to the provinces have been
given very sparingly.
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
Almost all the important powers are within the national sphere of
government. As described above, even the few powers that have been given
exclusively to the provinces can be exercised by the national
legislature to maintain national security, economic unity, essential
national standards etc.
Extension of the Provincial Councils (consequential provisions) Act
No. 12 of 1989 as an interim measure
The LSSP recently demanded that the Provincial Councils
(consequential provisions) Act No. 12 of 1989 should be extended to the
concurrent list pending the proposals of the APRC.
This Act provides for provincial ministers and provincial council
public officers to exercise power under laws enacted by Parliament in
respect of a subject in the Provincial List.
Where any power or function is assigned to a Minister or to a public
officer in any written law made prior to November 14, 1987 on any matter
set out in the provincial list in the 13th amendment, such power or
function can be exercised and discharged by a provincial minister or
provincial public officer with regard to their province.
If this law is extended to the concurrent list a provincial minister
or a provincial public officer could simultaneously exercise powers
enumerated in the concurrent list.
The effect of such an amendment would be that the Central Minister or
official would not be in a position to override a decision of a
provincial minister or a provincial public officer with regard to a
subject in the concurrent list.
The disastrous consequences of such a move could be explained by
reference to an incident that occurred in 1996 which attracted much
A powerful Muslim politician was instrumental in demolishing an
ancient monument close to the Deegawapi Maha Vihara, much to the
annoyance of the Buddhist public. Further destruction to these ancient
monuments were stalled by the intervention of the relevant Minister of
the Central Government.
The Central Government Minister of Land over the phone directed to
stop the bulldozing of the ancient monuments.
If such an incident is to happen after the full implantation of the
13th amendment it would be doubtful whether the Central Government
Minister would have the same power to intervene in such a matter
If the perpetrator of the crime is the provincial government itself,
then by the extension of the aforementioned Act to the concurrent list
both the provincial minister and the Central Government Minister will
have equal powers and one would not be able to override the other.
One argument that has been put forward to do away with the concurrent
list is the opportunity for the Central Government to resort to the
power of formulating National Policy with regard to any subject.
Even the South African Constitution clearly sets out the power of the
National Legislature to deal with national policy - vide Article 146 (2)
of the South African Constitution which is reproduced below.
146. Conflicts between national and provincial legislation
2. National legislation that applies uniformly with regard to the
country as a whole prevails over provincial legislation if any of the
following conditions is met:
a. The national legislation deals with a matter that cannot be
regulated effectively by legislation enacted by the respective provinces
b. The national legislation deals with a matter that, to be dealt
with effectively, requires uniformity across the nation, and the
national legislation provides that uniformity by establishing
i. norms and standards;
ii. frameworks; or
iii. national policies.
c. The national legislation is necessary for
i. the maintenance of national security;
ii. the maintenance of economic unity;
iii. the protection of the common market in respect of the mobility
of goods, services, capital and labour;
iv. the promotion of economic activities across provincial
v. the promotion of equal opportunity or equal access to government
vi. the protection of the environment.
To be continued