Devolution of Power to Provincial Councils – II
April 7, 2014, 12:00 pm 
By R. M. B. Senanayake
I wrote in an earlier article that in my opinion the Provincial Councils Act no 42 of 1987 contravenes the 13th Amendment in the extensive powers it confers on the Governor of the Provincial Council since Art 154 C must be subject to Art 154 F.
Article 154C says. "Executive power extending to the matters with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province for which that Provincial Council is established, either directly or through Ministers of the Board of Ministers, or through officers subordinate to him, in accordance with Article 154F. But Art 154 C is subject to the Art 154 F. This matter may be examined further by lawyers.
Dr Jehan Perera and I carried out an opinion survey and studied the working of the Provincial Councils in the North and the East under the auspices of the National Peace Council.
Staffing in Provincial Councils
The Provincial Councils have been given a variety of functions and subjects . They are wide-ranging, and extend to such spheres as police and public order", planning; education and educational services; provincial housing and construction; roads and bridges; social services and rehabilitation; regulation of road passenger carriage services; agriculture and agrarian services; rural development; health; food supply and distribution; cooperatives; land; irrigation; animal husbandry; regulation of mines and mineral development and similar subjects. The intention obviously is to devolve subjects which are relevant for the districts and the third tier of government- the Pradesiya Sabhas.
But despite this, the Line Ministries of the Government in spheres like livestock and Co-operatives have continued to function. In the field of education and educational services, which are a devolved subject and where the role of the Government is restricted to institutions like national universities, coordination and determination of standards for higher education and the like, the Government has opted to exercise a significantly larger role as is manifest in the increase in the number of national schools.’ In order to exercise its powers the Governor insists that every PC must make "Statutes" in respect of any matter set out in the 9th Schedule to the Constitution. This is despite the Provincial Councils (Consequential Provisions) Act.
Staffing
To carry out these functions the Provincial Council needs staff to be attached to it. They should establish their own secretariat. The Kachcheri was the traditional agency for carrying out many of these functions at the district level. But the Government was not prepared to transfer the Kachcheri staff and buildings to the Provincial Council although this would have avoided the need to recruit a large new cadre of staff for the Provincial Council (PC). But in the beginning the Assistant Government Agents officers who were the next lower level in the District, were brought under the PC. They were made Secretaries of the Pradesiya Sabhas. The field staff attached to the AGA’s office were also transferred to the PC and so were the Grama Niladharis.
But the Central Government took back some of these officers and the field staff.
In 1992 the Center passed the Transfer of Powers Act under which the former AGA offices now called Divisional Secretaries offices were transferred back to the Central Government. They were also given a host of new functions and the powers of the Government Agents were vested in the Divisional Secretaries. The land staffs of the 20 odd kachcheris were re-distributed among the Divisional Secretaries. A Provincial Land Commissioner was appointed to the PC under the Provincial Land Ordinance of 1993, to overlook the land administration which now came under the Divisional Secretaries. But the Divisional Secretaries continued under the Central Government. The Divisional Secretary exercised the powers of land alienation and land settlement previously carried out by the Government Agent. But the Divisional Secretary had to send his recommendations regarding land alienation or regularization of encroachments on State land to the Provincial Land Commissioner of the PC who in turn sent them to the Commissioner General of Lands in Colombo.
Land Powers
When the Central Government required State land it has to consult the PC and vice versa for the PC. The allegation is that the Central Government uses the land given to government departments not for the purposes of the Department but to settle Sinhalese people from the South in the guise of re-settling the Sinhalese who had earlier lived in the North but had been driven out by the LTTE. So the Tamil people are suspicious of the exercise of the land powers of the Center. They allege that new Army camps are being established on lands given to the government departments for their needs. The 13th Amendment provided for the establishment of a National Land Commission where the PCs were also members to decide on national land policies but the institution has not been set up. Disputes between the Center and the PCs were envisaged originally to be referred to such a National Land Commission. Instead of appointing the National Land Commission as provided in the 13th Amendment there are said to be proposals to appoint a fourth Presidential Land Commission – an ad hoc body instead of the permanent body provided for in the Constitution.
Another criticism is that all major colonization schemes which span two or more districts are taken over by the Center and brought under its jurisdiction, because their coverage spans two provinces. This means that the Provincial Council loses control of what is presently under their control. So the Tamil people are wary of any suggestion to divert Mahaweli waters to the North after the restoration of the Moragahakande tank because they assume that it would mean the loss of control over the Iranamadu Tank and Colonization Scheme opening the way for the settlement of Sinhalese from outside the Province. This opposition is despite a water shortage in the Jaffna peninsula and amidst suggestions to divert water there from the Iranamadu tank. Further, Mahaweli waters to the Iranamadu tank will provide a way to mitigate the opposition of the Iranamadu farmers who cultivate the lands under the Iranamadu Scheme. The obvious solution is to augment the Iranamadu tank with Mahaweli water but it would mean the takeover of control of the Iranamadu Scheme under the Mahaweli Authority and this would enable the Authority to settle Sinhalese in the Vanni.
There is similar suspicion regarding the vesting of State land in the National Housing Development Authority, the Sri Lanka Ports Authority, the Urban Development Authority, the Archaeology Department and the Mahaweli Authority as they fear the authorities would bring in Sinhalese from the South and settle them under their auspices. They refer to the Weli Oya settlement in the Mullaitivu District where many Sinhalese were settled and a separate Sinhalese Division was set up although previously there were no Sinhalese in the district except for a few migrant fishermen from Chilaw and Negombo. It is these fears of settlement of Sinhalese in the Northern Province which has led to the demand for land powers to be vested in the NPC as provided for in the 13th Amendment in order to block colonization of the North by Sinhalese from the South under central government sponsorship. This problem must be discussed by the Center with the NPC preferably under the auspices of a National Land Commission which should be appointed to allay the fears of the Tamil people about Sinhalese colonization of the North with a view to make them a minority in their usual home lands.
Reform Administrative Structures
A successful devolution of power requires a major reform of the administrative structures. There cannot be a dual administration where the Divisional Secretary exercises powers given to the PC while remaining an official of the Center and not subject to the administrative control of the Provincial Council. This is a violation of the principle of unity of command which states that no officer should be in a position to receive orders from two different superiors for he would not know which orders to comply with where there are contradictory orders. It makes good administration impossible and undermines accountability of the officials for the work they do on behalf of the PC. The PC staff although under the PC and paid for by the PC they work under the Divisional Secretary in his office. This arrangement undermines provincial administration and the exercise of power by the PC. It violates the canons of Public Administration and must be changed if devolution of power to the PCs is to work. The dual administration must be done away with and the Divisional Secretaries should be brought under the Provincial Council as before and the Divisional Secretary himself should serve as the Secretary of the Pradesiya Sabhas. There has to be a linkage between the Provincial Council and the Pradesiya Sabha. There is no role for decentralized administration of central government general functions which have been devolved on the Provincial Councils and the Pradesiya Sabhas. The Central Government agencies in the district and below should be confined o the specialized technical functions not devolved to the Provincial Administration. The present Government Agent is in an anomalous position since he is in charge of general functions and not specialized technical functions.
Presently the PCs are run by officers of the Sri Lanka Administrative service on secondment for a specified period of 2 years. This militates against good administration for these officers have no permanent stake in their jobs working for the PC. The PCs will have to recruit their own staff and absorb officers of the central government only if they opt to join permanently and not merely on temporary secondment. The existing dual control system should be done away with. The Line Ministries should use their staff for implementing Government programmes and projects. Unless this is done the PCs cannot function properly and hold its officers accountable.
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