Constitutional Assembly: Analysis of Centre-Periphery Relations Report - Part I

November 23, 2016, 12:00 pm 

"What is remarkable is that in discussing the devolution of power in a situation where the existing system of devolution was based on the Indian model, the entire report of the Subcommittee on Centre-Periphery Relations has not mentioned India even once!"

By C. A. Chandraprema

The Provincial Governor

The report submitted to the Constitutional Assembly by its Subcommittee on Centre-Periphery Relations focuses on several areas such as the role of the provincial Governor, and the fiscal, administrative, land and police powers of the provincial councils. What the subcommittee report says about the institution of the provincial governor is plain and direct as follows: "The present powers of the Governors are excessive and should be curtailed. The Thirteenth Amendment and the Provincial Councils Act No. 42 of 1987 vests a multitude of powers to the unelected Governor to intervene, control and regulate the executive and legislative functions of the provinces. The position of the Governor with such powers represents central dominance in the province..."

The subcommittee has observed that according to the Constitution, the executive power of the Provincial Council is exercised by the Governor. The Chief Minister and the Board of Ministers are only supposed to ‘aid and advise’ the Governor in the exercise of his functions and the Governor, in turn, is supposed to act in accordance with such advice except in circumstances where he is required to exercise certain functions at his discretion. In the exercise of these functions, the question whether any advice was tendered to him, and if so the nature of such advice, is not a matter which can be questioned in any court. In the event that a dispute arises as to whether any matter is or is not a matter in respect of which the Governor could act in his discretion, the decision of the Governor shall be final and the validity of such decision cannot be called in question in any Court.

In the subcommittee’s opinion, this gives the Governor unfettered power in the exercise of executive functions of the Provincial Council. Article 154C of the constitution provides that the Governor shall exercise executive power ‘either directly or through the Board of Ministers or through officers subordinate to him’. The term ‘officers subordinate to him’ refers to the officers of the Provincial Public Service. The subcommittee observed that hence, the provincial executive does not even have power over its public officers who are expected to implement the decisions of the Board of Ministers. The provincial public officials are obliged to comply with directives of the Governor and as such, they cannot be expected to be loyal to the Provincial Executive. As a result, the Secretaries of the Provincial Ministries, who are to carry out the executive functions as directed by the respective Ministers, have been controlled by directives from the Governors. There have been instances that the Governors were insisting on their prior approval being obtained even to conduct a training programme!

Provincial Governors’ powers

Moreover, a statute cannot be even introduced into the Provincial Council for its consideration without the recommendation of the Governor if such statute has financial implications. Every statute made by a Provincial Council shall come into force only after that statute receives the assent of the Governor. The Governor can return the statutes to the Provincial Council without assent and recommending reconsideration on the grounds that one or more of the provisions are inconsistent with the Constitution. The Subcommittee on Centre-Periphery Relations has rhetorically posed the question: ‘The President at the national level does not have this power with regard to the enactment of laws by Parliament. Why this at the provincial level?’

If the Provincial Council enacts the statute without incorporating the recommendations of the Governor and sends it back for his assent, it is not compulsory for the Governor to grant his assent. If he does not agree with the statute, the Governor has to forward it to the President to refer it to the Supreme Court for a determination on the constitutionality of the statute. However, the 13th Amendment did not provide a time limit within which the President should forward it to the Supreme Court. As a result, whenever the Governors were of opinion that certain provisions of the statutes were inconsistent with the constitution; such statutes have not been subjected to the procedure for the determination of constitutionality as laid down in the constitution.

The subcommittee also observed that the Provincial Councils Act vests the Governor with powers of appointment, formulation of schemes of recruitment and codes of conduct, transfer, dismissal and disciplinary control of officers of the provincial public service. Although there is provision for a Provincial Public Service Commission this body too functions under the Governor who appoints the members of that body. The Governor has the power to alter, vary or rescind any appointment, order of transfer, or dismissal or any other order relating to a disciplinary matter made by the Provincial Public Service Commission. Accordingly, the Governor’s power in this regard is analogous to that of an appellate body. It is evident from these provisions that the authority to control public servants of the province is vested in the Governor. The provincial Governors thus enjoy power which even the President of the country does not exercise with regard to the public officers at the centre.

Subcommittee lost its bearings

The Subcommittee has recommended that the above stated powers of the Governor be abolished and the Governor be made a nominal head, who should be constitutionally required to act on the advice of the Chief Minister and Board of Ministers, except in so far as he is constitutionally required to act at his discretion. They also recommended that the requirement of the Governor’s assent for statutes passed by the Provincial Council be done away with and the present parliamentary practice of a bill being declared an Act of Parliament upon receiving the Speaker’s signature be adopted in respect of the Provincial Councils with the Chairman of the PC signing the statutes passed by the Provincial Councils. The Subcommittee recommended that such statutes could be subject to judicial review by a Constitutional Court which they have recommended be set up. They have also suggested that even if the Constitutional Court has ruled in favour of the constitutionality of a Bill in pre-enactment review proceedings, that should not be a bar to subsequent post-enactment review proceedings.

It was further recommended that the power of the Governor in relation to statutes that have financial implications should be repealed and the approval of the Board of Ministers deemed sufficient for introducing financial bills in the provincial council. The subcommittee recommended that while providing for a nominal office of Governor, the provisions relating to the central government’s power to bring a provincial government under direct rule for any actual or threatened break-down of law and order in the province, should be strengthened. However, such decision should be subject to judicial review by the constitutional court within a specified period. The subcommittee clinched their argument for dismantling the powers of the Governor by stating that in a situation where the elected Executive Presidential system is being dismantled in the country, it does not make sense to perpetuate what they called an ‘executive governor’ system - unelected at that - in the provinces!

In the report they submitted to the Constitutional Assembly and the recommendations they made, it is quite clear that the Subcommittee on Centre State Relations has acted as if they were discussing the executive powers of sovereign nations instead of provincial administrations in a sovereign nation. Under the provisions of the 13th Amendment, the provincial Governor is the principal figure who acts as the link between the central government and the provincial administration. The provincial councils system in our country was based on the Indian model and the powers and role of provincial Governors in our constitution is almost exactly the same as that of state Governors under the Indian constitution and if there is any divergence, that is only because the Indian state Governors have even more powers that our provincial Governors.

Everything that the Subcommittee on Centre- Periphery Relations has objected to in the role of the provincial Governor – the fact that the executive power of the State is vested in the Governor, that he will exercise these powers either directly or through officers subordinate to him, that the council of ministers exists only to ‘advice’ the governor in the exercise of his functions, that no one can question a decision made by the governor regarding any matter requiring his discretion, that no court can question whether a Governor acted in accordance with the advice given to him by the Council of Ministers, that all executive action in the state is taken in the name of the Governor, that laws passed by the state legislatures take effect only when the Governor signs them, that the governor can send the Bills back even after they are passed while recommending changes, that if his recommendations are not carried out the governor can withhold his ascent and refer the matter to the president; etcetera, etcetera, are all the same in the Indian constitution as well.

The Indian constitution

In India, the states which function under Governors empowered by such provisions are much larger than most nation states in the world. Indeed the whole of Sri Lanka is comparable to some of the smallest states in India. In India, the Haryana state which has a population of over 26 million qualifies for only five out of 233 Rajya Sabha seats. If we were a state of India, we would barely qualify for four seats in the Rajya Sabha. In such a situation a subcommittee appointed to look into devolution in Sri Lanka has come up with a proposal that is a blueprint for nine independent states. If one removes the powers the provincial Governor has at present, there is nothing to stop the provinces from becoming independent states. To cap it all, the Subcommittee on Centre-Periphery Relations has recommended that even after taking away all the above mentioned powers of the provincial Governor, he should be appointed only with the concurrence of the chief minister of the province.

This will enable every chief minister in Sri Lanka to appoint one of his stooges as Governor and do just as he pleases. What is remarkable is that in discussing the devolution of power in a situation where the existing system of devolution was based on the Indian model, the entire report of the Subcommittee on Centre-Periphery Relations has not mentioned India even once! The Sub committee has recommended doing away with the existing powers of the provincial Governor in a situation where some of the most important safeguards available to the central government in India vis a vis the states have not been given to the central government in Sri Lanka by the 13 th Amendment. In India, parliament has the power to legislate on any matter on the ‘state list’ if two thirds of the members of the upper house of parliament - the Rajya Sabha - present and voting pass a resolution approving such intervention.

The Rajya Sabha is made up of representatives of the Indian states according to a constitutionally mandated formula. What this means is that in India, if the representatives of the states feel that intervention is necessary in a certain state, parliament can override the state legislature in that state and pass legislation on any of the powers reserved for the states. Such intervention will last one year after which it can be renewed for so long as is necessary – even for perpetuity. (Article 249 of the Indian Constitution) This is one of the most important provisions designed to safeguard the Indian union. Note also that the majority needed is two thirds of those present and voting – not two thirds of the whole number of members. Thus in India, the Hindi speaking northern states can mandate intervention in a separatist southern state if necessary. But such a safeguard does not exist in Sri Lanka.

In India, one of the most important safeguards that the centre has is the ability to impose ‘President’s rule’ on a state if necessary. What happens in such circumstances is that President takes over the executive functions of the state with its legislative functions being taken over by parliament – in which event parliament in turn can empower the president to make laws for that state. In India, every such proclamation will have to be approved by parliament within two months and will last up to six months and this can be continued for up to three years with approvals being granted by both houses of parliament once every six months with simple majorities.

In Sri Lanka, however, any imposition of president’s rule on a province has to be approved by parliament within fourteen days and can last for two months with a maximum period of one year if the resolution is approved by parliament once every two months. Thus we see that even though our system of devolution is based on the Indian constitution, we don’t have the same safeguards as the Indian central government. It is in such circumstances that the Subcommittee on Centre-Periphery Relations is suggesting that we do away with the powers of the provincial Governor. In India, the report of the Sarkaria Commission on Centre State Relations of 1988 observed in relation to the position of state Governor that it functions as a ‘bridge’ between the centre and the State and that the Governor is the ‘sentinel’ of the constitution. If Sri Lanka is to remain as one country after this constitutional reform process is over, the institution of provincial Governor should not be touched. It should on the contrary be strengthened.

Tomorrow: Land, police, fiscal and administrative powers