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Devolution of Power to Provincial Councils II

By R. M. B. Senanayake-April 7, 2014

I wrote in an earlier article that in my opinion the Provincial Councils Act no 42 o !"#$ contravenes the !%th Amen&ment in the e'tensive powers it con ers on the (overnor o the Provincial Council since Art !)4 C must *e su*+ect to Art !)4 ,. Article !)4C says. -.'ecutive power e'ten&in/ to the matters with respect to which a Provincial Council has power to make statutes shall *e e'ercise& *y the (overnor o the Province or which that Provincial Council is esta*lishe&0 either &irectly or throu/h Ministers o the Boar& o Ministers0 or throu/h o icers su*or&inate to him0 in accor&ance with Article !)4,. But Art !)4 C is su*+ect to the Art !)4 ,. 1his matter may *e e'amine& urther *y lawyers. 2r 3ehan Perera an& I carrie& out an opinion survey an& stu&ie& the workin/ o the Provincial Councils in the 4orth an& the .ast un&er the auspices o the 4ational Peace Council. Sta in/ in Provincial Councils 1he Provincial Councils have *een /iven a variety o unctions an& su*+ects . 1hey are wi&eran/in/0 an& e'ten& to such spheres as police an& pu*lic or&er-0 plannin/5 e&ucation an& e&ucational services5 provincial housin/ an& construction5 roa&s an& *ri&/es5 social services an& reha*ilitation5 re/ulation o roa& passen/er carria/e services5 a/riculture an& a/rarian

services5 rural &evelopment5 health5 oo& supply an& &istri*ution5 cooperatives5 lan&5 irri/ation5 animal hus*an&ry5 re/ulation o mines an& mineral &evelopment an& similar su*+ects. 1he intention o*viously is to &evolve su*+ects which are relevant or the &istricts an& the thir& tier o /overnment- the Pra&esiya Sa*has. But &espite this0 the 6ine Ministries o the (overnment in spheres like livestock an& Cooperatives have continue& to unction. In the iel& o e&ucation an& e&ucational services0 which are a &evolve& su*+ect an& where the role o the (overnment is restricte& to institutions like national universities0 coor&ination an& &etermination o stan&ar&s or hi/her e&ucation an& the like0 the (overnment has opte& to e'ercise a si/ni icantly lar/er role as is mani est in the increase in the num*er o national schools.7 In or&er to e'ercise its powers the (overnor insists that every PC must make -Statutes- in respect o any matter set out in the "th Sche&ule to the Constitution. 1his is &espite the Provincial Councils 8Conse9uential Provisions: Act. Sta in/ 1o carry out these unctions the Provincial Council nee&s sta to *e attache& to it. 1hey shoul& esta*lish their own secretariat. 1he ;achcheri was the tra&itional a/ency or carryin/ out many o these unctions at the &istrict level. But the (overnment was not prepare& to trans er the ;achcheri sta an& *uil&in/s to the Provincial Council althou/h this woul& have avoi&e& the nee& to recruit a lar/e new ca&re o sta or the Provincial Council 8PC:. But in the *e/innin/ the Assistant (overnment A/ents o icers who were the ne't lower level in the 2istrict0 were *rou/ht un&er the PC. 1hey were ma&e Secretaries o the Pra&esiya Sa*has. 1he iel& sta attache& to the A(A7s o ice were also trans erre& to the PC an& so were the (rama 4ila&haris. But the Central (overnment took *ack some o these o icers an& the iel& sta . In !""2 the Center passe& the 1rans er o Powers Act un&er which the ormer A(A o ices now calle& 2ivisional Secretaries o ices were trans erre& *ack to the Central (overnment. 1hey were also /iven a host o new unctions an& the powers o the (overnment A/ents were veste& in the 2ivisional Secretaries. 1he lan& sta s o the 2< o&& kachcheris were re-&istri*ute& amon/ the 2ivisional Secretaries. A Provincial 6an& Commissioner was appointe& to the PC un&er the Provincial 6an& =r&inance o !""%0 to overlook the lan& a&ministration which now came un&er the 2ivisional Secretaries. But the 2ivisional Secretaries continue& un&er the Central (overnment. 1he 2ivisional Secretary e'ercise& the powers o lan& alienation an& lan& settlement previously carrie& out *y the (overnment A/ent. But the 2ivisional Secretary ha& to sen& his recommen&ations re/ar&in/ lan& alienation or re/ulari>ation o encroachments on State lan& to the Provincial 6an& Commissioner o the PC who in turn sent them to the Commissioner (eneral o 6an&s in Colom*o. 6an& Powers ?hen the Central (overnment re9uire& State lan& it has to consult the PC an& vice versa or the PC. 1he alle/ation is that the Central (overnment uses the lan& /iven to /overnment &epartments not or the purposes o the 2epartment *ut to settle Sinhalese people rom the

South in the /uise o re-settlin/ the Sinhalese who ha& earlier live& in the 4orth *ut ha& *een &riven out *y the 611.. So the 1amil people are suspicious o the e'ercise o the lan& powers o the Center. 1hey alle/e that new Army camps are *ein/ esta*lishe& on lan&s /iven to the /overnment &epartments or their nee&s. 1he !%th Amen&ment provi&e& or the esta*lishment o a 4ational 6an& Commission where the PCs were also mem*ers to &eci&e on national lan& policies *ut the institution has not *een set up. 2isputes *etween the Center an& the PCs were envisa/e& ori/inally to *e re erre& to such a 4ational 6an& Commission. Instea& o appointin/ the 4ational 6an& Commission as provi&e& in the !%th Amen&ment there are sai& to *e proposals to appoint a ourth Presi&ential 6an& Commission @ an a& hoc *o&y instea& o the permanent *o&y provi&e& or in the Constitution. Another criticism is that all ma+or coloni>ation schemes which span two or more &istricts are taken over *y the Center an& *rou/ht un&er its +uris&iction0 *ecause their covera/e spans two provinces. 1his means that the Provincial Council loses control o what is presently un&er their control. So the 1amil people are wary o any su//estion to &ivert Mahaweli waters to the 4orth a ter the restoration o the Mora/ahakan&e tank *ecause they assume that it woul& mean the loss o control over the Iranama&u 1ank an& Coloni>ation Scheme openin/ the way or the settlement o Sinhalese rom outsi&e the Province. 1his opposition is &espite a water shorta/e in the 3a na peninsula an& ami&st su//estions to &ivert water there rom the Iranama&u tank. ,urther0 Mahaweli waters to the Iranama&u tank will provi&e a way to miti/ate the opposition o the Iranama&u armers who cultivate the lan&s un&er the Iranama&u Scheme. 1he o*vious solution is to au/ment the Iranama&u tank with Mahaweli water *ut it woul& mean the takeover o control o the Iranama&u Scheme un&er the Mahaweli Authority an& this woul& ena*le the Authority to settle Sinhalese in the Aanni. 1here is similar suspicion re/ar&in/ the vestin/ o State lan& in the 4ational Bousin/ 2evelopment Authority0 the Sri 6anka Ports Authority0 the Cr*an 2evelopment Authority0 the Archaeolo/y 2epartment an& the Mahaweli Authority as they ear the authorities woul& *rin/ in Sinhalese rom the South an& settle them un&er their auspices. 1hey re er to the ?eli =ya settlement in the Mullaitivu 2istrict where many Sinhalese were settle& an& a separate Sinhalese 2ivision was set up althou/h previously there were no Sinhalese in the &istrict e'cept or a ew mi/rant ishermen rom Chilaw an& 4e/om*o. It is these ears o settlement o Sinhalese in the 4orthern Province which has le& to the &eman& or lan& powers to *e veste& in the 4PC as provi&e& or in the !%th Amen&ment in or&er to *lock coloni>ation o the 4orth *y Sinhalese rom the South un&er central /overnment sponsorship. 1his pro*lem must *e &iscusse& *y the Center with the 4PC pre era*ly un&er the auspices o a 4ational 6an& Commission which shoul& *e appointe& to allay the ears o the 1amil people a*out Sinhalese coloni>ation o the 4orth with a view to make them a minority in their usual home lan&s. Re orm A&ministrative Structures A success ul &evolution o power re9uires a ma+or re orm o the a&ministrative structures. 1here cannot *e a &ual a&ministration where the 2ivisional Secretary e'ercises powers /iven to the PC while remainin/ an o icial o the Center an& not su*+ect to the a&ministrative control o the Provincial Council. 1his is a violation o the principle o unity o comman& which states

that no o icer shoul& *e in a position to receive or&ers rom two &i erent superiors or he woul& not know which or&ers to comply with where there are contra&ictory or&ers. It makes /oo& a&ministration impossi*le an& un&ermines accounta*ility o the o icials or the work they &o on *ehal o the PC. 1he PC sta althou/h un&er the PC an& pai& or *y the PC they work un&er the 2ivisional Secretary in his o ice. 1his arran/ement un&ermines provincial a&ministration an& the e'ercise o power *y the PC. It violates the canons o Pu*lic A&ministration an& must *e chan/e& i &evolution o power to the PCs is to work. 1he &ual a&ministration must *e &one away with an& the 2ivisional Secretaries shoul& *e *rou/ht un&er the Provincial Council as *e ore an& the 2ivisional Secretary himsel shoul& serve as the Secretary o the Pra&esiya Sa*has. 1here has to *e a linka/e *etween the Provincial Council an& the Pra&esiya Sa*ha. 1here is no role or &ecentrali>e& a&ministration o central /overnment /eneral unctions which have *een &evolve& on the Provincial Councils an& the Pra&esiya Sa*has. 1he Central (overnment a/encies in the &istrict an& *elow shoul& *e con ine& o the speciali>e& technical unctions not &evolve& to the Provincial A&ministration. 1he present (overnment A/ent is in an anomalous position since he is in char/e o /eneral unctions an& not speciali>e& technical unctions. Presently the PCs are run *y o icers o the Sri 6anka A&ministrative service on secon&ment or a speci ie& perio& o 2 years. 1his militates a/ainst /oo& a&ministration or these o icers have no permanent stake in their +o*s workin/ or the PC. 1he PCs will have to recruit their own sta an& a*sor* o icers o the central /overnment only i they opt to +oin permanently an& not merely on temporary secon&ment. 1he e'istin/ &ual control system shoul& *e &one away with. 1he 6ine Ministries shoul& use their sta or implementin/ (overnment pro/rammes an& pro+ects. Cnless this is &one the PCs cannot unction properly an& hol& its o icers accounta*le .

Devolution of power to Provincial Councils undermined I