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One of the main problems we have had with regard to devolution is the failure of our law makers to draft legislation properly. The 13th Amendment is a case in point, since it is full of confusion about how power should be exercised.

The most obvious example of this is in relation to what is termed the Concurrent List, where the Constitution says that, where there is conflict, the decision of the Central Government will prevail. This is not concurrence. When this is pointed out, the response is that the clause was taken from the Indian Constitution.

In India that provision did not matter much, since the States had had governments before the Centre did. State governments therefore had experience in passing legislation, and the Central government would not counter such legislation, unless there were potentially destructive consequences.

In Sri Lanka however, Provincial Councils were new, and Jayewardene compounded the problem by choosing good fighters to head the lists for the elections that were held. This was understandable, given the violence in the country at the time, but it put paid to constructive development in the Provinces, except in Wayamba, where the toughie chosen also happened to be an able and imaginative administrator.

But even there, hardly any of the powers the Province has were used. Thus no Province has even thought of establishing Universities, which it is allowed to do. Some of the problems Provinces have with regard to teacher supply could be solved by imaginative use of the powers regarding Education and Higher Education that they possess, but they have been content instead to stick to existing practice.

I should note though that I have been told by Mahinda Samarasinge that he tried to resolve problems relating to transport when he was Western Province Minister of Transport, but this was knocked on the head by President Premadasa. This suggests an understanding of the real work Provincial Councils could do, but unfortunately I don’t think anyone since then has sought to develop Provincial transport in terms of local needs – and my own view now is that even a Provincial Minister will not have his ear to the ground to an adequate extent. Powers with regard to the administration of transport, and institutionalization of mechanisms responsive to local needs, should in fact go down to the Division. Incidentally, the manner in which the Jaffna Municipal Council has taken on some responsibility for school transport shows how effective such small scale initiatives can be.

My argument then is that we should encourage Provincial Councils to use the powers available to them, by removing the fear that any regulations they introduce will be countermanded by Central government intervention, as occurred to poor Mahinda Samarasinghe. The obvious answer is to introduce a consultation mechanism when any conflict arises.

Consultation should lead to resolution of any dispute in terms of the Constitution, where the Centre has a dominant role in terms of its responsibility for National Policy on all subjects. This too is an aspect which is not emphasized enough in discussion about the problems of Provincial Councils. Legislation since 1987 had not taken into account that, given the primacy of Policy made by the Centre, mechanisms should be in place for ensuring the implementation of such Policy. This will involve monitoring, with the promotion of satisfactory implementation by Provincial institutions.

Given this responsibility for National Policy, I cannot really understand the current arguments about Land powers. In perhaps the only positive achievement during the bilateral discussions between Government and the TNA, their National List MP and I developed a consensus on Land issues based on the Constitution, which should have been acceptable to everyone. Of course there were claims for more, and unfortunately this led to historical disquisitions on both sides, which became emotional. But had we continued with our discussions, I believe there would have been no difficulty in accepting the paper we had drafted.

We should now, given the importance of land issues, as indicated in both the Human Rights Action Plan and the LLRC Action Plan, formulate policy with due consultation, and then ensure its implementation, not at Provincial level, which is impossible, but at Divisional level. For this purpose, of course, both legislation, and regulations, should lay down clear guidelines about how the Centre will monitor that implementation is in accordance with Policy, albeit through officials with more immediate contact with the people.

I am not sure about the exact balance between officials in this regard, in terms of whether they report to the Centre or the Province, but I suppose there could be analogies with officials in a field I have studied closely in recent months, namely the protection and development of children. According to the 13th Amendment, ‘Probation and Child Care Services’ are Provincial Responsibilities, but all that was before we became signatories to the Child Rights Convention, and understood the importance of Child Protection and indeed Development. Accordingly, in the 90s, we set up a National Child Protection Authority, which should be the apex body for formulating policy and ensuring its implementation. We also strengthened the Central Probation Department, which appoints Child Rights Protection Officers to Districts and Divisions, while the Children’s Secretariat appoints Early Childhood Development Officers.

At a recent consultation we drafted job descriptions for all these officials, while emphasizing the important of Probation Officers, who work for Provincial Departments, in being the initial agents of service delivery. They cannot however ensure coordination with Education and Health and Police officials, and also the judiciary which has an important role to play, and this must be done by the NCPA. However, to prevent duplication of services, we recommended that the Central Probation Department and the NCPA be combined, or at least work together, so that there will be coherence of approach, and the Provincial implementing agencies will be briefed clearly about how National Policy is to be promoted.

Daily News 3 Dec 2012