Several ex-Governors have ganged up against the ongoing Constitutional reforms process, expressing their reservations saying that the reforms can seriously undermine the power and the role of the Governor. They have also said that the weakening role of the Governor could undermine the ability of the Sri Lankan State to prevent the inexorable threat to the territorial integrity of Sri Lanka, while also warning that if powers of the Governors are taken away, Sri Lanka will cease to be a unified country.
President Sirisena
In a letter addressed to President Maithripala Sirisena early this month, eight ex-Governors from the Central, North Western, Southern, Eastern, Northern, North Central and Uva provinces said that after studying the recommendations recently tabled in Parliament by the sub committees appointed by the Constitutional Assembly for Constitutional reforms, they were compelled to express their reservations on some aspects as it will seriously undermine the power and the role of the Governor. “This will adversely impact on the centre periphery relations affecting the unitary nature of the State that was envisaged when the 13th Amendment was introduced to the Constitution in 1987,” they said in the letter to Sirisena.
The letter was signed by Ex Governor Central Province Tikiri Kobbekaduwa, Ex Governor North-Western Province Tissa Balalla, Ex Governor Southern Province Kumari Balasuirya, Ex Governor Eastern Province Mohan Wijewickrama, Ex Governor Northern Province G.A. Chandrasiri, Ex Governor North-Central Province Karunarathne Divulgane, Ex Governor North-Central Province Jagath Balasuriya and Ex Governor Uva Province C. Nanda Mathew.
“As per the 13th Amendment to the Constitution, Provincial Councils are autonomous bodies and derives its authority and power from the Constitution and Acts of Parliament. The functions of the Government and the Provincial Councils are clearly listed in the Ninth Schedule to the Constitution, which comprises of three lists that clearly indicate the power enjoyed by the Provincial Councils where it can make statutes (laws) applicable to that province without violating the Constitution. The Governor is appointed by the President and as such he is his representative. All executive action of the Governor is taken in the name of the President. He gives assent to the Statutes passed by the Council before they can become law,” the letter said.
The governors listed several apprehensions on the recommendation made by sub committees ;
1. The power to assent statutes adopted by a PC to be transferred to the Chairman of the Council from the Governor and the Governors power to refer any statute inconsistent with the Constitution to the Supreme Court for a determination through the President to be abolished. It has been recommended to review the Statutes by a Constitutional Court to be established.
The Constitutional Court would be outside the Court structure and will consist of seven members, not all of them necessarily be judicial officers appointed by the President on the recommendations of the Constitutional Council. The Centre will not have any control in the event of a Province making a Statute inconsistent with the Constitution and will have to solely rely on the Constitutional Court.
2. As per Article 154F of the Constitution, the Governor appoint the Chief Minister (CM) who has the support of the majority of elected members or when one political party obtains more than half of the seats in the Council the leader of that party. The Governor appoints the Provincial Board of Ministers (BOM) on the advice of the CM. The Governor shall at all times act on their advice, except where under the Constitution is required to exercise his functions or any of them in his discretion.
The ‘sub committees’ have recommended to appoint the Governor with the concurrence of the Chief Minister (CM) and will have to perform duties on the advice of the CM and provincial Board of Ministers (BOM). The power where the Governor is required to exercise at his own discretion also had been recommended to be removed. Can the Governor appointed with the recommendation of a CM be independent during a situation where the majority members in the council decides to remove or change the incumbent CM as provided in the Constitution
3. Under the 13th Amendment the Governor is required to report to the President any failure of administrative machinery as per the Article 154L of the Constitution. The ‘sub committees’ have recommended this condition to be deleted. The new recommendation is for the President and Prime Minister to make such determinations. Such determinations also will become subject to Judicial Review if challenged.
4. As per Part (IV) of the Provincial Council Act No. 42 of 1987 the Governor determines all matters relating to members of the Provincial Public Service including the formulation of schemes of recruitment and the codes of conduct for such officers. He is also the Director of Establishments for the Provincial Public Service. The ‘sub committees’ have recommended the Governor’s authority over the provincial public service especially the appointment, transfers and disciplinary control of Secretaries, Deputy Secretaries and Department Heads be carried out on the advice of BOM subjecting to the risk of politicising the public service and compromising its independency. Furthermore, by allowing the Provincial Public Services Commissions to decide on cadre needs including that of the local authorities without the approval of the Treasury will result the present uniformity adopted for all provinces and appropriating funds for salaries and emoluments.
5. The ‘sub committees’ have recommended the list of Concurrent Powers in the 9th Schedule to the Constitution that are wielded by both the Central Government and the Provincial Councils be done sway with and transferred to the Provincial Councils. To further this objective, it has been recommended that the Divisional Secretaries who now function under the District Secretaries networked with Central Government and Grama Niladaris who function under the Divisional Secretaries be placed under the authority of the Provincial Councils. The above may certainly have an impact on the development activity pursued under Ministries of the Central Government in the respective division. Consequently a whole new structure would need to be created to implement 75% of the Central Budget to implement Central Government functions.
6. At present the Governor frames the Financial Rules of the Council, which regulate activities relating to the Provincial Fund and the Emergency Fund of the Province. He causes the Annual Financial Statement to be laid before the Council after due consultation of provincial authorities with the Finance Commission. The new recommendation is to make “provincial and local spheres of government competent spending authorities”. Thus, the monitoring and utilizing of public funds in the Provinces by the Central Government through the Governor would be weakened.
“We are of the opinion that the cumulative effect of the recommendations made by the ‘sub committees’ will curtail the Executive, Fiscal and Administrative powers that are currently exercised by and/or associated with the Governor who will be transformed to a nominal head. The President or the Cabinet of Ministers will no longer be able to exercise power in a Province through the Governor when the need arises. Some of the recommendations made by the sub committees if incorporated to the Constitution would make the Province as distinct and as independent of the Centre as possible; an arrangement that would dismantle the present Unitary character of Sri Lanka and make it operationally Federal,” the letter said.
The ex-Governors noted that Sri Lanka’s system of devolution is modelled on that of India and the Governors of the Indian states have exactly the same powers as the provincial Governors in Sri Lanka. It is through the role of the Governor that the provinces are bound to the centre. “If the powers of the Governors are taken away, Sri Lanka will cease to be a unified country,” they said.
“In view of the above, it is our considered opinion that weakening the role of the Governor and who is the appointed Provincial representative of the President – the Commander-in-Chief – to the point of only being a “nominal head”, would undermine the ability of the Sri Lankan State to prevent the inexorable threat to the territorial integrity of Sri Lanka,” the letter added.