Federal demand in TNA manifesto Need for a recalibration

• In multi-ethnic countries the world over, a Federal Constitution has been the solution for holding them together
• There remains a real fear among the Sinhala people of the division and disintegration of the country and of a Federal Arrangement being a step in this direction
• The Constitutional framework severely limits the revenue-raising capacity of the Provincial Councils

The TNA manifesto which reiterates its position with regard to a Federal Constitution has been received with a storm of protests from Southern politicians and even threats of bloodletting from some quarters.
It would seem that Federalism is equated to separatism and despite the Supreme Court judgement in Chandrasoma v Senathiraja, that held that Federalism is not Separatism, this fallacy continues unabated. 
In multi-ethnic countries the world over, a Federal Constitution has been the solution for holding them together. To cite an example that stares us in the face is the neighbour on our doorstep namely India. This country has been since its inception a Federal Union and continues to be one country despite its myriad ethnicities.
India, which is as much a country as a subcontinent, has 22 languages recognised by the Constitution, besides hundreds of dialects and more than 2,000 ethnic groups, and every major religion is represented.

In Sri Lanka, DNA studies reveal that the major ethnic groups in the island namely Sri Lankan Tamils, Sinhalese (Upcountry and Low Country) and Veddahs are genetically related. In India, on the other hand, there is no genetic affinity between for instance a Kashmiri and a Tamilian or a Punjabi and an Assamese, to cite but a few examples. 
Despite these differences but also because of these differences the Federal Constitution is the bedrock that ensures “unity in diversity”, and has unified this subcontinent in what Prime Minister Modi referred to as cooperative Federalism in his address to the Sri Lankan Parliament in 2015.
In Sri Lanka, the Federal “bogey” was originally created by the Lake House Moguls of yesteryear to carry forward the political agenda of certain political parties and continues in many of the print and electronic media channels today. A canard that has been used to whip up fear and deflect the people from the path of inclusive and secular politics and towards communal politics.

Further, one must acknowledge that though the reasoning mind would know better there remains a real fear among the Sinhala people of the division and disintegration of the country and of a Federal Arrangement being a step in this direction.
In the context that this interpretation of federalism cannot be easily erased, I would suggest that the TNA should re-calibrate its demands to focus on Devolution and not Federalism per se. 
As pointed out in a recent article “the only tangible gain that the Tamil speaking people have got in the years since independence is the Provincial Councils brokered with India’s assistance and pursuant to the Indo Sri Lanka Peace Accord of July 1987.” Hence the pragmatic course as pointed out by another commentator is to functionalize this institution.
Power-sharing through a Federal Structure can involve devolution to regional units and comes in many forms.
In the United Kingdom, for example, which is a Unitary State, powers have been devolved to the different ethnic regional units of Scotland, Wales and Northern Ireland. Scotland has its own Parliament, while still sending members to the Parliament at Westminster and similarly Wales and Northern Ireland have their respective Legislative Assemblies while being represented at the Parliament in Westminster.

"Without attempting to do away with the Provincial Council system it should be implemented in full, making the necessary changes by amendments and administrative action and thereby removing the factors which have inhibited its successful implementation"

The powers appertaining to these bodies, and the Federal States in the Indian Union, are not very much different from those vested in the Provincial Councils under the 13th Amendment. In the above instances, power-sharing has worked efficiently and provided the people of the regional units and states with a good measure of autonomy. The question arises as to why the Provincial Councils in Sri Lanka have not been able to function effectively and are considered by many especially in the south as white elephants.
An examination of the powers conferred on them and the workings of the Councils shows that they need to be amended and rectified in certain areas. This does not call for any major constitutional changes requiring a two-thirds majority or a referendum but could be carried out by amendments which require a simple majority in Parliament.
The Provincial Councils were set up by virtue of the 13th Amendment to the Constitution 1987 and the Provincial Councils Act No. 42 of 1987. The Councils have both Legislative as well as Executive powers in respect of a number of subjects which are set out in the Provincial List in the 9th schedule to the Act, i.e List 1.
The list also covers law and order i.e Police Powers but this has thus far been not implemented. The subject matters appertaining to the Central Government are set out in the Reserved List 11 and confined mainly to Defence, Foreign Affairs, and national institutions such as airports, higher education etc.

However, the Central List starts with the rubric ‘National Policy on all subjects and functions’, which allows it to cover most areas.
There is also a Concurrent List with both the centre and the provinces having overlapping powers. In order for the Councils to function effectively, there has to be clarity on the allocation of subjects between the Central Government and the Provincial Councils. This is a matter which needs to be looked into and rectified.
In order to function efficiently, the Councils require adequate finances to run the Provincial Councils. This is where the Councils have been most hamstrung as the Provincial Councils Act, gives the Governor a controlling power over the finances of the Province. Furthermore, the Provincial Council cannot pass any statute imposing or abolishing any taxes without the consent of the Governor. There are instances of Governors declining to give the formal recommendations thereby preventing the particular Provincial Council from proceeding further with a statute. According to the 13th Amendment, the Provincial Councils are entitled to collect Business Turnover tax.

However, the Government introduced the Value Added Tax (VAT) depriving Provincial Councils of their income. Hence the Councils have to depend largely on Central grants. The report of the Parliamentary Sub – Committee on Centre – Periphery Relations, November 2016, states
“The concept of devolution of power is nullified by the unimpeded discretionary powers of the Governor over the finance of the Provincial Council.”  The Sub -Committee points out that the dependency of the Provincial Councils on Central grants can only be justified if an effective system is in place to ensure that Provinces are provided with adequate resources by the Centre to discharge their responsibilities.

But this has not been the case and in fact, the Constitutional framework severely limits the revenue-raising capacity of the Provincial Councils. In addition to the limited tax-raising power vested in the Provinces are the limitations placed on obtaining loans and investment, and on seeking or at least administering projects financed by foreign aid and investments.
The Committee concluded that “the corrosive effect of inadequate or unprincipled financing arrangements is that they impair Provincial and local level service delivery, leading to an erosion of confidence in what are constitutionally established democratic institutions.” In fact, most of the stumbling blocks to the smooth functioning of the Provincial Councils are as a result of the provisions of the Provincial Councils Act. It gives the Governor power over the finances of the PCs and also gives the Governor control of the Provincial Public Service, and the Provincial Public Service Commission. 

"There is also a Concurrent List with both the centre and the provinces having overlapping powers. In order for the Councils to function effectively, there has to be clarity on the allocation of subjects between the Central Government and the Provincial Councils. This is a matter which needs to be looked into and rectified"

These are powers that even the President of the Country does not exercise over the National Public Services and the Public Services Commission. As remarked in one publication the Provincial Councils Act ensures that the provincial public service is subservient to the Governor. 
 It gives the example where even drivers of vehicles could not be appointed by the Chief Minister without the approval of the Governor and the Governor had refused to give his approval because the appointments were his prerogative. In Provinces where the ruling party at the Centre was also the party in control of a Provincial Council, Governors have been less assertive of their prerogatives and the Chief ministers have been better able to operate. However, the Provincial Councils of the North and East have had less leeway.
Another area which needs looking into is the administrative service in the province. Provincial governance does not include all sectors of government but only those specified in the 13th Amendment to the Constitution.
As a result, sectors that do not fall under the area of competency of the Provincial governance have separate officers at provincial and district level, namely the District Secretaries and the Divisional Secretaries who come under the Central Government. These officers perform administrative functions within the territory of the Province but without any control from the Provincial Government. This leads to a dual administration.

Furthermore, although the local authorities are under the supervisory control of the Provincial Councils as per the devolved list, most of the power at the local level remains with the Central Government. The Majority Report of the Expert Committee appointed to advise the APRC recommended in 2006 itself, that for devolution of power to be effective it should be devoid of duality. It recommended that the District administration has to be restructured so as to form part of the Provincial Administration. This recommendation has been echoed by the Parliamentary subcommittee on Centre –periphery relations in 2016. We have outlined above many of the shortcomings in the Provincial Council system and the ways in which they can be overcome. Also the need for amendment of the Provincial Councils Act, which is also suggested by the Subcommittee on Centre-Periphery Relations.
All these changes can be implemented by amending the 13th Amendment by a simple majority in Parliament where all the Provincial Councils agree, or by a two-thirds majority vote in Parliament in the situation where one or more Provincial Council does not agree to the amendments.

Similarly, the Provincial Councils Act can be amended by a simple majority. The administrative changes and restructuring of the Administrative services and the present dual system can be changed by gazette notifications by the President as provided for in the 13th Amendment itself. 
In July 2006 at the inaugural meeting of the APRC (All Party Representative Committee) and the multi-ethnic Experts Committee appointed by the President to assist the APRC, President Mahinda Rajapaksa stated as follows.
“People in their own localities must take charge of their own destiny and control their politico-economic environment.... In sum, any solution needs to as a matter of urgency devolve power for people to take charge of their own destiny. Any solution must be seen as one that stretches to the maximum possible devolution without sacrificing the sovereignty of the country, given the background of the conflict. ”
Although this was not carried out by his Government when in office, it puts succinctly what we must aim for in a meaningful devolution of powers in Sri Lanka. Hopefully in his next term as Prime Minister Mr Rajapaksa will fulfil this vision.

The present Provincial Council system which now prevails in all the nine Provinces of the country is based not on any specific regional or ethnic criteria but is directed towards all the people of the country. It seeks to empower the people in their localities, whether it be Jaffna or Matara. This system allows for decisions to be taken closer to the local people and communities and not only by politicians and bureaucrats in Colombo and has the potential to leads to the more efficient delivery of services to the people. In other words, it leads to participatory democracy.
The greater empowerment of the Local Authorities in the local government sector as the third tier of government and a Grama Raja at the Village level would further enhance this process and has been recommended by the Parliamentary Sub-Committee on Centre Periphery Relations. It must be noted that the APRC Report of 2010 set out in addition to the National and Provincial list a Local Government list so that this tier of Government would have its defined area of competence. Today the Provincial Council system prevails in all the Provinces of Sri Lanka and has taken root even though with many restrictions and encroachments by the Central Government. In the Tamil speaking provinces ie the Northern and Eastern province, the Tamils and Muslims have through this institution been able to some extent, to give expression to their aspirations and economic interests.

This is a safety valve which is necessary for any multi-ethnic state as we see in the United Kingdom where the ethnic Scots, Welsh and Northern Irish have autonomous regional units.
Without attempting to do away with the Provincial Council system it should be implemented in full, making the necessary changes by amendments and administrative action and thereby removing the factors which have inhibited its successful implementation.
As it has formed a part of the Sri Lankan Constitution for over 30 years, it is time that bureaucrats and Central Government Ministers cease to view it with suspicion or antipathy, but cooperate in its implementation and see it as a supportive institution making for a more efficient administration and a more democratic form of governance for the whole country. The Tamil parties could by working towards meaningful devolution and further empowered systems of Provincial Councils and Local Authorities, become engaged in a process that is in the national interest of all Sri Lanka ’s people, while also promoting the aspiration and interests of the Tamil speaking people.