Shenali D Waduge

13^th Amendment was signed on 14 Nov 1987. Sri Lanka had several choices over the years – it could have used 2/3 majority in Parliament to annul it altogether or it could have brought amendments that would have negated the clauses in the 13A. Successive governments did neither & simply passed the pillow. What needs to be clearly understood is that State Land as a RIGHT is not vested in the Provincial Councils but the 13A allows the President to vest State Land to the Provinces. There are reasons why Police & Land powers were not devolved & it is time people especially politicians & political parties, understood why.

STATE LAND

• Appendix II – 13A was forced upon Sri Lanka by India immediately after forcing Sri Lanka to sign the Indo-Lanka Accord in July 1987.
• 13A is a virtual cut & paste of the Indian quasi-federal set up.
• Appendix II of 13A states that State Land has be vested in the Republic & may be disposed as per Article 33(d) There is mandatory requirement to vest land in provinces. Exclusive power of land has not been vested in the Provincial Councils (Article 33 (d)
• Article 33(d) states that the President has powers to execute grants & dispositions of lands & immovable property vested in the Republic. (This is the dangerous aspect where vesting land to provinces is at the discretion of the President)
• Therefore, it is the decision of the President on granting State land to the provinces not an entitlement given under 13A to the provinces.
• Land & Land Settlement though in the Provincial List – its disposition is with the President. State land remains with the Republic & under the Presidents control. The Centre controls State land.
• The tragic scenario is that judgements of the judiciary is also subject to controversy – a bench giving a judgement today can be overturned by another bench on another day. These areas need to be addressed in a new constitution. Thus the 2013 SC Judgement delivered by Justice Sripavan concluded that State land shall continue to vest in the Republic”. The Courts must first identify State land” is with the Republic & ensure no conflicts arise in judgements.
• Appendix II (1.2) Provincial Council can only utilize State land” if it is made available by the President to the Provincial Councils. Is this what the current President with a deaf ruling Govt attempting to do?
• The powers that the Provincial Councils have is to only administer, control & utilize State Land” as per laws by Parliament & by statutes made by the Provincial Councils only after State land is vested to them.
• Provincial Council statutes are limited to administering, controlling & utilizing State land which the Govt vests to the Provincial Council. The issue at hand is that while the Constitution does not provide the Provincial Councils direct access over State Land, it allows the President to vest State Land to the Provinces after which the Provincial Council is free to administer it. The danger at hand is what an unelected President is proposing to do! 

POLICE POWERS – Appendix 1 / Police & Public Order 

• Appendix 1 – 9^th Schedule says IGP is head of Police.
• Police is divided as National & Provincial Police.
• 9 Provinces will have 9 Provincial Police plus divisions of National Police & IMF says to reduce the armed forces! 
• The 9 Provinces will have 9 Deputy IGPs (DIGs).
• The 9 DIGs of the Provincial Police are selected from the National Service & appointed by the IGP ONLY after concurrence” of each of the 9 Chief Ministers. This is where the politicization of police becomes an issue.
• The 9 Provincial DIGs report to the 9 Chief Ministers of the 9 Provinces
• The 13A does not provide how the Chief Ministers are to control the 9 DIGs. This is likely to result in further chaos & confusion at operational level if a DIG refuses orders.
• 3 member Provincial Police Commission – DIG of Province (indirect selection of the Chief Minister), person nominated by Central Public Service Commission & nominee of Chief Minister. This means the Chief Minister has a bigger say in the selection of the provincial police
• A Chief Minister is elected by a Political Party. DIGs reporting to the Chief Minister means the Police are under control of a political party. A police force cannot come under 9 different political parties! For this very reason Police Powers should not be vested to the Provinces.
• Imagine at a time of an election when the police are under a political party.
• Recruitment to Provincial Police – by Provincial Police Commission.
• Imagine the confusion & the chaos within the police itself with 9 chief ministers ordering police as & how they like with the IGP having little or no control of a police force & at the mercy of 9 Chief Ministers while the 9 DIGs have to take orders from the 9 Chief Ministers. This scenario will result in a plethora of grievances that require time to solve impacting public order & destabilizing the country further.
• National Police will handle national security aspects only.
• Executive powers of the State is vested only in the country’s President – thus, the 9 Chief Ministers CANNOT be vested executive powers on par with the President or above the President.
• Sri Lanka has a history of unexpected violence – 1970s-1980s JVP, 1980s to 2009 LTTE, 2019 Easter Sunday & thereafter the violence that ensued after May 2022. All of these incidents have covert/overt ties to external players given the geopolitical importance of Sri Lanka.
• Foreign intel repeatedly warn of more security threats. In national security interest, the national police cannot come under political parties.
• Sri Lanka is an island & only the State must be responsible for Public Law & Order & the protection of its borders not political parties controlling police force.

Though eventually the final say over Police even at Provincial level vests with the IGP & President, the confusion & chaos likely to occur in the operation of this bizarre set up warrants not to venture into it.

STATUS OF LAND & POLICE POWERS

• Land is a reserved subject & cannot be devolved by Supreme Court.
• Police powers should not be devolved
• There have been 3 instances that 13A could have been annulled with 2/3 majority – CBK & Mahinda Rajapakse both failed to do so despite requests.

ISSUES

• 36 of the 37 subjects are already devolved to the Provincial Councils. What is prudent is to ascertain what the PCs have done to the People & the Provinces since being set up against the expense incurred for them. It is a costly affair to maintain 9 PCs.
• The Divisional Secretary is a Govt official responsible for Central Govt functions but he has been placed under the Ministry of Home Affairs & he is supervised by the District Secretaries. District Secretaries are not directly linked to the PCs. The Divisional Secretary has to not only take care of Central Govt functions but provincial subjects & functions delegated by the Governor too. This means the Divisional Secretary is serving both the Govt & the PC. This conflict of interest needs to be addressed & a proper structure set up.
• Exercising of devolved powers varies from province to province. The districts have a better arrangement & are in unison. The haphazard manner that PCs function against a structured district level function showcases the futility of continuing with PCs.
• The PCs cannot attribute their poor performance to the lack of Land & Police powers. PCs had administrative control over 36 subjects since implementation of 13A.
• The primary reason for PCs to fail is that the system was a cut & paste of India’s quasi-federal system. This is another example of a failed political solution & joins a string of other political solutions that have failed – CFA, PTOMs, ISGA, Indo-Lanka Accord.

With 13A, Sri Lanka is constitutionally unitary, but with a quasi-federal set up. The aim of the separatist lobbies is pretending to demand more federal” but insert confederal provisions so as to eventually secede in a scenario similar to US confederation where lack of cooperation was argument used to separate. This is the gameplan of parties like ITAK. If only we had a Parliament that could read & understand instead of making foolish promises that are constitutionally impossible & likely to create chaos & destabilize Sri Lanka further.

Shenali D Waduge