Comments on: 13th Amendment cannot provide genuine devolution http://federalidea.com/focus/archives/315 Sat, 11 Oct 2008 19:28:57 +0000 http://wordpress.org/?v=2.0.2 by: TIC http://federalidea.com/focus/archives/315#comment-5828 Fri, 29 Feb 2008 13:20:02 +0000 http://federalidea.com/focus/archives/315#comment-5828 Response of the Tamil Information Centre 28 February 2008 We thank Sri for the comment (13 February 2008) on our note on the 13th Amendment to the Sri Lankan Constitution. The TIC welcomes comments and opinions on its publications and statements. Sri's comment is not accurate and we believe has arisen by a narrow reading and interpretation of the provisions of the Sri Lanka Constitution. Sri's reference to Article 154B (8) (d) deals only with the issue of summoning, proroguing and dissolving a Provincial Council. It is in that context that the Governor is expected to act in accordance with the advice of the Chief Minister. But this also depends on the opinion of the Governor. According to the constitutional Article, the Governor is expected to listen to the advice of the Chief Minister, where, in the Governor's opinion, the Board of Ministers commands the support of the majority in the Provincial Council. With regard to Article 154F (1) cited, Sri has not referred to Article 154F (2) which gives the Governor discretion to decide whether a matter is or is not a matter regarding which he has to act in his discretion. His decision, taken in his discretion, is final. The validity of anything done by the Governor cannot be called in question in any court on the ground that he ought or ought not have acted on his discretion. Article 154F (2) also provides that the exercise of the Governor's discretion shall be on the President's directions. This Article virtually negates all possible 'aiding and advising' functions of the Board of Ministers referred to in Article 154F (1) except those which are specifically provided for in the 13th Amendment. In the 13th Amendment, there is only one instance where his exercise of power is constrained or structured. This is found in the proviso to Article 154F (4) 'regarding the appointment of the Chief Minister. With regard to the appointment of Ministers, he is expected to obtain the advice of the Chief Minister, but there is no mandatory requirement that he has to act in accordance with such advice. There have been instances where the Governors of Provinces have ignored the advice given by the Chief Ministers and the latter had no recourse. Sri's statement, viz. 'The occasions where the Governor could exercise his discretion is also stipulated in the 13th Amendment', is inaccurate. As indicated above, under the 13th Amendment there is only one instance where the Governor is really required to act on the advice of the Chief Minister. Contrary to Sri's statement, the 13th Amendment has not only left the scope of discretion of the Governor wide and open, giving to the Governor the power to decide, in his discretion, whether he should or should not act in his discretion on a matter, but has also excluded judicial review of such decision. Perhaps this is in line with Article 2, 4(b) and 154B (2) of the Constitution which maintain the unitary character of the State. If elected representatives of the people in a Province can be overruled by an appointed official of the President, though the President is elected by the People, it is not devolution of power, but an affront to democracy. It is evidently demonstrable that a particular candidate who becomes the President of the country could have been defeated by the people of certain Provinces; but he/she could, through his/her agent in the form of Governor, defeat the will of the people in the Province. This is the problem with the whole of the structure and implementation of the 13th Amendment. The TIC wishes to make a further comment regarding the appointment of officers to the Provincial Public Service. If the position at national level is considered, although the President enjoys enormous executive power, the powers relating to the appointment, transfer, promotion, dismissal and disciplinary control of the public officers was vested in the Cabinet of Ministers before the 17th Amendment and not in the President. This position changed after the 17th Amendment and the powers relating to the appointment, transfer, promotion, dismissal and disciplinary control of the public officers was vested in the Public Service Commission [Article 55 (1)]. However, with regard to the Provincial Public Officers, such powers are vested in the Governor and the position did not change even after the 17th Amendment [Section 32 (1) 'Provincial Councils Act]. In other words, the Governor of a Province enjoys significant power, which has a telling effect on the efficiency and impartiality of the Provincial Public Service. It is remarkable that the agent of the President has powers superior to the President in relation the Provincial Public Service. The issue of the Governor acting on the advice of the Board of Ministers with regard to the appointment and disciplinary control of the Provincial Public Service came before the Court of Appeal. The Court, being perhaps centrally minded, held that the Governor need not appoint any person on the advice of the Chief Minister or the Board of Ministers, but can act in his/her own judgment. Even the Judiciary has upheld the position that the Board of Ministers does not play a role in the Provincial Public Service. Articles 154B (8), Article 154F (2) and Article 154F (4) are given below for easy reference. Article 154B (8) (a)The Governor may, from time to time, summon the Provincial Council to meet at such time and place as he thinks fit, but two months shall not intervene between the last sitting in one session and the date appointed for the first sitting in the next session. (b) The Governor may, from time to time, prorogue the Provincial Council. (c) The Governor may dissolve the Provincial Council. (d) The Governor shall exercise his powers under this paragraph in accordance with the advice of the Chief Minister, so long as the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Provincial Council. Article 154F (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question in any Court on the ground that he ought or ought not have acted on his discretion. The exercise of the Governor's discretion shall be on the President's directions. Article 154F (4) The Governor shall appoint as Chief Minister, the member of the Provincial Council constituted for that Province, who, in his opinion, is best able to command the support of a majority of the member of the Council: Provided that where more than one-half of the members elected to a Provincial Council are members of one political party, the Governor shall appoint the leader of that political party in the Council, as Chief Minister. Response of the Tamil Information Centre

28 February 2008

We thank Sri for the comment (13 February 2008) on our note on the 13th Amendment to the Sri Lankan Constitution. The TIC welcomes comments and opinions on its publications and statements.

Sri’s comment is not accurate and we believe has arisen by a narrow reading and interpretation of the provisions of the Sri Lanka Constitution. Sri’s reference to Article 154B (8) (d) deals only with the issue of summoning, proroguing and dissolving a Provincial Council. It is in that context that the Governor is expected to act in accordance with the advice of the Chief Minister. But this also depends on the opinion of the Governor. According to the constitutional Article, the Governor is expected to listen to the advice of the Chief Minister, where, in the Governor’s opinion, the Board of Ministers commands the support of the majority in the Provincial Council.

With regard to Article 154F (1) cited, Sri has not referred to Article 154F (2) which gives the Governor discretion to decide whether a matter is or is not a matter regarding which he has to act in his discretion. His decision, taken in his discretion, is final. The validity of anything done by the Governor cannot be called in question in any court on the ground that he ought or ought not have acted on his discretion. Article 154F (2) also provides that the exercise of the Governor’s discretion shall be on the President’s directions. This Article virtually negates all possible ‘aiding and advising’ functions of the Board of Ministers referred to in Article 154F (1) except those which are specifically provided for in the 13th Amendment. In the 13th Amendment, there is only one instance where his exercise of power is constrained or structured. This is found in the proviso to Article 154F (4) ‘regarding the appointment of the Chief Minister. With regard to the appointment of Ministers, he is expected to obtain the advice of the Chief Minister, but there is no mandatory requirement that he has to act in accordance with such advice. There have been instances where the Governors of Provinces have ignored the advice given by the Chief Ministers and the latter had no recourse.

Sri’s statement, viz. ‘The occasions where the Governor could exercise his discretion is also stipulated in the 13th Amendment’, is inaccurate. As indicated above, under the 13th Amendment there is only one instance where the Governor is really required to act on the advice of the Chief Minister. Contrary to Sri’s statement, the 13th Amendment has not only left the scope of discretion of the Governor wide and open, giving to the Governor the power to decide, in his discretion, whether he should or should not act in his discretion on a matter, but has also excluded judicial review of such decision. Perhaps this is in line with Article 2, 4(b) and 154B (2) of the Constitution which maintain the unitary character of the State.

If elected representatives of the people in a Province can be overruled by an appointed official of the President, though the President is elected by the People, it is not devolution of power, but an affront to democracy. It is evidently demonstrable that a particular candidate who becomes the President of the country could have been defeated by the people of certain Provinces; but he/she could, through his/her agent in the form of Governor, defeat the will of the people in the Province. This is the problem with the whole of the structure and implementation of the 13th Amendment.

The TIC wishes to make a further comment regarding the appointment of officers to the Provincial Public Service. If the position at national level is considered, although the President enjoys enormous executive power, the powers relating to the appointment, transfer, promotion, dismissal and disciplinary control of the public officers was vested in the Cabinet of Ministers before the 17th Amendment and not in the President. This position changed after the 17th Amendment and the powers relating to the appointment, transfer, promotion, dismissal and disciplinary control of the public officers was vested in the Public Service Commission [Article 55 (1)]. However, with regard to the Provincial Public Officers, such powers are vested in the Governor and the position did not change even after the 17th Amendment [Section 32 (1) ‘Provincial Councils Act]. In other words, the Governor of a Province enjoys significant power, which has a telling effect on the efficiency and impartiality of the Provincial Public Service.

It is remarkable that the agent of the President has powers superior to the President in relation the Provincial Public Service. The issue of the Governor acting on the advice of the Board of Ministers with regard to the appointment and disciplinary control of the Provincial Public Service came before the Court of Appeal. The Court, being perhaps centrally minded, held that the Governor need not appoint any person on the advice of the Chief Minister or the Board of Ministers, but can act in his/her own judgment. Even the Judiciary has upheld the position that the Board of Ministers does not play a role in the Provincial Public Service.

Articles 154B (8), Article 154F (2) and Article 154F (4) are given below for easy reference.

Article 154B (8)

(a)The Governor may, from time to time, summon the Provincial Council to meet at such time and place as he thinks fit, but two months shall not intervene between the last sitting in one session and the date appointed for the first sitting in the next session.

(b) The Governor may, from time to time, prorogue the Provincial Council.

(c) The Governor may dissolve the Provincial Council.

(d) The Governor shall exercise his powers under this paragraph in accordance with the advice of the Chief Minister, so long as the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Provincial Council.

Article 154F (2)

If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question in any Court on the ground that he ought or ought not have acted on his discretion. The exercise of the Governor’s discretion shall be on the President’s directions.

Article 154F (4)

The Governor shall appoint as Chief Minister, the member of the Provincial Council constituted for that Province, who, in his opinion, is best able to command the support of a majority of the member of the Council:

Provided that where more than one-half of the members elected to a Provincial Council are members of one political party, the Governor shall appoint the leader of that political party in the Council, as Chief Minister.

]]> by: ilaya seran senguttuvan http://federalidea.com/focus/archives/315#comment-5610 Mon, 25 Feb 2008 11:45:56 +0000 http://federalidea.com/focus/archives/315#comment-5610 The current high profile efforts to devolve power to the Provinces is a farce. No Sinhala political leadership will be allowed to do this by the all powerful buddhist clergy - whose accumulation of power is inconsistent with their knowledge of the political history of this country except their own distorted version. JRJ had the chance to devolve power to the North-East in 1987 only but Premadasa, Athulathmudali, Mathew et al under the influence of the late Maddihe Panaseeha Thero, Until such time Sri Lanka will be immersed in her on going blood bath which, I hope not but fear, will increase in the coming days. The current high profile efforts to devolve power to the Provinces is a farce. No Sinhala political leadership will be allowed to do this by the all powerful buddhist clergy - whose accumulation of power is inconsistent with their knowledge of the political history of this country except their own distorted version. JRJ had the chance to devolve power to the North-East in 1987 only but Premadasa, Athulathmudali, Mathew et al under the influence of the late Maddihe Panaseeha Thero, Until such time Sri Lanka will be immersed in her on going blood bath which, I hope not but fear, will increase in the coming days.

]]> by: Shantha Gamlath http://federalidea.com/focus/archives/315#comment-5155 Wed, 13 Feb 2008 15:24:24 +0000 http://federalidea.com/focus/archives/315#comment-5155 In this examination that can be identified some positive as well as negative point s. But , when we define the 13 th amendment that is a great opportunity in sri lankan Tamil ethnicity becouse that was a first attempt which is introducing of semi federal systemic model for ethnic issue in sri lanka. So, should be look for that kind of positive aspect (if it is possible fully implementation with given constitutional privileges). Some time it ,s very much close to Indian model. as we know existing provincial councils that they have been implementing their subjects in their given privileges by the amendment. Al so should be understand that current system have various practical issues. But, if there any possibility to implement 13th amendment with comprehensively that there will be a positive approach of the devolution of political power from center to regions. In simultaneously, Dispute resolution mechanism should be strength in to constitution. On the other hand as a initial step, 13 th amendment has gained majority consensuses. Even extremist nationalist maxims parties has take part with this system. Therefore any body cant reject current system, and they can strength and strong existing system within constitutional provisions. Beside,This is a good opportunity to response for extremist political parties on devolution of political power in country.Some time singhala majority consensuses will concentrate in this attempt. How can we avoid such a occasion with showing various bargains and logical interpretations. First of all , we should think cost benefit of war in day by day.Technical difficulties of the existing system can be negotiate with the relevant parties. therefor in very simply, should not lost positive steps and consensuses for future compromise politics in sri lanka.Further, should be read 13th amendment very carefully becouse it has very important features for a diverse society . It was born through agreement signed between India and sri lanka. Other hand as a international agreement, parties will responsible fully implementation in practice in real context. 13th amendment ,that it has identified by the international legal experts as a turning point of sri lankan devolution process . In this examination that can be identified some positive as well as negative point s. But , when we define the 13 th amendment that is a great opportunity in sri lankan Tamil ethnicity becouse that was a first attempt which is introducing of semi federal systemic model for ethnic issue in sri lanka. So, should be look for that kind of positive aspect (if it is possible fully implementation with given constitutional privileges). Some time it ,s very much close to Indian model. as we know existing provincial councils that they have been implementing their subjects in their given privileges by the amendment. Al so should be understand that current system have various practical issues. But, if there any possibility to implement 13th amendment with comprehensively that there will be a positive approach of the devolution of political power from center to regions. In simultaneously, Dispute resolution mechanism should be strength in to constitution. On the other hand as a initial step, 13 th amendment has gained majority consensuses. Even extremist nationalist maxims parties has take part with this system. Therefore any body cant reject current system, and they can strength and strong existing system within constitutional provisions. Beside,This is a good opportunity to response for extremist political parties on devolution of political power in country.Some time singhala majority consensuses will concentrate in this attempt. How can we avoid such a occasion with showing various bargains and logical interpretations. First of all , we should think cost benefit of war in day by day.Technical difficulties of the existing system can be negotiate with the relevant parties. therefor in very simply, should not lost positive steps and consensuses for future compromise politics in sri lanka.Further, should be read 13th amendment very carefully becouse it has very important features for a diverse society . It was born through agreement signed between India and sri lanka. Other hand as a international agreement, parties will responsible fully implementation in practice in real context. 13th amendment ,that it has identified by the international legal experts as a turning point of sri lankan devolution process .

]]> by: Gamini http://federalidea.com/focus/archives/315#comment-5152 Wed, 13 Feb 2008 12:00:57 +0000 http://federalidea.com/focus/archives/315#comment-5152 Dont waste time writing five page statements simply and honestly state…. “No political solution will ever be acceptable to the LTTE terrorists and us the Tamil Information Centre as their public relations arm” Dont waste time writing five page statements simply and honestly state….

“No political solution will ever be acceptable to the LTTE terrorists and us the Tamil Information Centre as their public relations arm”

]]> by: Sri http://federalidea.com/focus/archives/315#comment-5150 Wed, 13 Feb 2008 10:51:05 +0000 http://federalidea.com/focus/archives/315#comment-5150 It is a good summary of the 13th Amendment with some ambiquity. The 13th Amendment to the Constitution of Sri Lanka indicates limits in the exercise of power by the governor. Article 154 B (8)d of the 13 th Amendment.”The Governor shall exercise his power under this paragraph in accordance with the advice of the Chief Minister, so long as the Board of Ministers commands, in the option of the Governor, the support of the majority of the Provincial Council". . Article154F (1 )"There shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advice the Governor of a province on the exercise of his functions. The Governor shall, in the exercise of his functions act in accordance of such advice except in so far as he is by or under the Constitution required to exercise his function or any of them in his discretion." You say that the Governor has a discretion to ignore the advice of the Chief Minster and board of Ministers. This is not factually correct and it is not always true. The occasions where the Governor could exercise his discretion is also stipulated in the 13th Amendment. This response is not to defend the 13th Amendment, but to correct a factual error It is a good summary of the 13th Amendment with some ambiquity.
The 13th Amendment to the Constitution of Sri Lanka indicates limits in the exercise of power
by the governor.
Article 154 B (8)d of the 13 th Amendment.”The Governor shall exercise his power under this paragraph in accordance with the advice of the Chief Minister, so long as the Board of Ministers commands, in the option of the Governor, the support of the majority of the Provincial Council”. .
Article154F (1 )”There shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advice the Governor of a province on the exercise of his functions. The Governor shall, in the exercise of his functions act in accordance of such advice except in so far as he is by or under the Constitution required to exercise his function or any of them in his discretion.”

You say that the Governor has a discretion to ignore the advice of the Chief Minster and board of Ministers. This is not factually correct and it is not always true. The occasions where the Governor could exercise his discretion is also stipulated in the 13th Amendment.

This response is not to defend the 13th Amendment, but to correct a factual error

]]>