Devolution and the concept of concurrency: abolition or reform?
Among proponents of devolution as a means of power-sharing in Sri Lanka, one of the key bones of contention about the Thirteenth Amendment has been the Concurrent List. This is the list of competences, or ‘subjects’ as they are called in the constitution, over which powers are shared between the central government and the Provincial Councils. This list is part of the broader distribution of powers and functions that are arranged in three lists in the Thirteenth Amendment, the other two being the Reserved List and the Provincial Council List. This tripartite arrangement was no doubt influenced by the Indian constitution, which was the sole comparative referent during the drafting of the scheme of devolution in 1987. The significant difference of course was that devolution in Sri Lanka was intended to function within the hierarchy of norms and institutions dictated by the foundational constitutional concept of the Sri Lankan republic, the unitary state, whereas the Indian system operates according to a federal logic.
In the years since, the manner in which the Thirteenth Amendment was implemented, or more accurately, improperly and incompletely implemented, led devolutionists to identify a range of design defects in this framework. These included the powers and functions of the provincial governor, the fiscal and financial framework, the ‘National Policy’ clause, and the Concurrent List. These criticisms, which were and are legitimate in the context of the reluctant and parsimonious way in which successive Sri Lankan governments, and it might be added, the higher bureaucracy and judiciary, have approached devolution, added to the rejection of the Thirteenth Amendment by Tamil nationalist parties on other more fundamental political grounds. Eminent constitutional lawyers like the late Dr Neelan Tiruchelvam and Dr Jayampathy Wickramaratne, and other experts associated with the Majority Report of the APRC’s experts’ panel, have all reflected the position that the Concurrent List is a major impediment to devolution. Minister Tissa Vitharana’s consensus document based on the APRC deliberations also recommended the abolition of the Concurrent List. Likewise, in a thorough and well-informed analysis of the constitutional politics involved in the TNA’s potential participation in the Parliamentary Select Committee proposed by the President, D.B.S. Jeyaraj has recently argued for the removal of the Concurrent List as a core requirement of that process.
I have long felt, however, that these wholly valid criticisms of (a) the particular design of the Concurrent List in the Thirteenth Amendment, and (b) the numerous examples of the way in which the Concurrent List has been abused by the central government so as to denude provincial autonomy, do not add up to a persuasive case for the wholesale removal of the concept of concurrency itself from our constitution and system of devolution. Thus while I agree with the criticisms of the Thirteenth Amendment’s Concurrent List, I believe that responding to the resulting need for reform by abolishing the principle of concurrency itself is akin to using a sledgehammer to crack a nut. This position derives from a conceptual understanding of concurrency as an important element of constitutional interdependence within a devolved polity, as well as constitutional democracy more generally. I will elaborate on this in a moment, but first we need to understand the specific character of concurrent powers as established in the Thirteenth Amendment.
The Concurrent List (List III) enumerates 36 subjects, with some items further elaborated in sub-items. It includes planning (Item 1), education, educational services and higher education (Items 2, 3 and 4, except to the extent specified in Items 3 and 4 of List I), housing and construction (Item 5), acquisition and requisitioning of property (Item 6), social services and rehabilitation (Item 7), agricultural and agrarian services (Item 8), health (Item 9), co-operatives (Item 15), irrigation (Item 17), fisheries within territorial waters (Item 19), tourism (Item 22), food and drug standards (Items 30 and 31), and prevention of infectious diseases (Item 35).
From the perspective of constitutional design, it is quite easy to see why these policy areas have been demarcated as concurrent competences: infectious diseases, for example, do not recognise provincial boundaries and it is necessary therefore that governmental responses to them are co-ordinated between both central and provincial levels. And from the perspective of effective devolution and provincial autonomy, it is better that the constitutional framework designates these areas as concurrent jurisdictions, forcing central and provincial levels to work together (at least notionally), rather than vesting the subject entirely in one level or the other. The latter approach almost always favours centralisation rather than provincial autonomy.
The concept of concurrency in the Thirteenth Amendment is one of ‘central field pre-emption’. That is, central legislation over concurrent subjects prevails over provincial statutes when Parliament unilaterally deems it so. It is this unilateral power of override given to Parliament that attracts the criticism that concurrent powers are nothing more than an extension of the powers of the central government to the disadvantage of the provinces. While this is true, as the reasoning of the Supreme Court in the In re the Thirteenth Amendment case (1987) indicates, it is difficult to see how devolution can be made to fit within the overarching constraints of the unitary state and specific constitutional provisions (some of them entrenched) that give effect to it, without providing Parliament with such a power.
This of course opens up the biggest constitutional issue there is in post-war Sri Lanka: the question of the future of the unitary state. The Thirteenth Amendment probably reflects the maximum extent of provincial devolution that is theoretically possible within the particular conception of the unitary state that is enshrined in the present constitution, and even this is arguable when Justice Wanasundera’s powerful dissent in In re the Thirteenth Amendment is taken into account. Thus any serious traversal down the path of ‘Thirteenth Amendment Plus,’ to the extent it denotes an enhancement of the powers of Provincial Councils, would seem to require substantive changes to the unitary state, even if purely formally or symbolically it retains its place upon the constitutional text. If on the other hand Thirteenth Amendment Plus merely means the addition of a second chamber to the central legislature while retaining the existing or reduced range of provincial powers (i.e., minus police and state land powers), then a different set of political and legal questions arise. These are all interesting constitutional conundrums, but they must await discussion on another day. I am here only concerned with the more specific question about whether the solution to the problems of the Thirteenth Amendment’s Concurrent List lies in the abolition of concurrency, or in its reform.
Under the Thirteenth Amendment, both Parliament and Provincial Councils are empowered to legislate in respect of concurrent subjects. Provincial Council statutes on concurrent subjects may prevail over pre-existing central legislation, but Parliament can by resolution override the application of such statutes. Any future central legislation on a concurrent subject has pre-eminence over a provincial statute. This is obviously an extremely vulnerable framework that renders the notion of ‘concurrent’ competence virtually meaningless by allowing Parliament to legislate over Provinces at will. Even the weak safeguard in Article 154G (5) (a) that Parliament should consult Provincial Councils before legislating on the Concurrent List has almost entirely been observed in the breach. It is for these reasons that devolutionists feel that the Concurrent List should be abolished.
However, to reiterate the point made at the beginning: while criticisms of the particular design of concurrent powers as reflected in the Thirteenth Amendment are valid, it does not follow that the concept of concurrency itself is something that is necessarily contrary to devolution. Neither does it necessarily follow that the solution to this problem is a system of exclusive competences, which presages competition rather than co-operation between the central and provincial levels. It is likely that institutionalising such a competitive logic in the devolution framework would ultimately work in favour of the (by definition) more powerful central government, thereby frustrating the very provincial autonomy that devolutionists seek to protect.
The question of pre-eminence in the concurrent field need not be resolved by constitutionally privileging legislation of one or other tier of government, as in the case of the Thirteenth Amendment, where central legislation has automatic pre-eminence over provincial statutes. A genuine framework of real concurrence or shared competence would be one which enables decisions on which tier should prevail to be made on a case by case basis, by reference to democratically legitimate and constitutionally established principles such as subsidiarity, effectiveness, efficiency and so on. The example of education policy serves to illustrate how a sophisticated use of concurrency in a devolved system can help promote not only provincial autonomy together with state-wide co-operation, but also more generally enhance the quality of democratic government.
If we take secondary education as a policy concern in a democratic society, we see that policy-making must reconcile several layers of competing interests. Local government authorities, the level of government closest to the public, have an interest in the location of schools due to implications they have for local services. The provincial level may have another set of interests in secondary education such as the promotion of a regional language and culture. The central government has the responsibility for the protection of a further set of interests, including the assurance of state-wide educational standards and the regulation of examinations and qualifications. Seen this way, it becomes clear that policy formulation, legislation and executive implementation in regard to secondary education could be undertaken with optimum delivery on democratic expectations if institutions are designed not only to ensure representation for these multiple interests, but also to ensure that they work together. Locating secondary education in a well-designed field of concurrent jurisdiction therefore commends itself over exclusively privileging one tier of government, as the means by which participatory and representative democracy can be maximised.
From the viewpoint of democratic government, such a system seems to be preferable to both the over-centralisation that we see in Sri Lanka today (in which it is assumed, despite clear evidence to the contrary, that only the central government is capable of efficient delivery) or a system of exclusive competences. Obviously, not all policy areas need to be located and regulated within a field of concurrency. Large areas of policy would still belong within exclusive provincial or central competence. But this brief example I hope serves to demonstrate the general utility of the concept of concurrency, over and beyond the specific defects of the Concurrent List in the Thirteenth Amendment.
Even if concurrent powers are not designed by reference to a federal logic that presumes a co-equality of central and provincial institutions, it is possible to build in better safeguards for provincial autonomy. Such safeguards maybe both substantive and procedural, as well as institutional. Thus there needs to a better and clearer articulation of concurrent responsibilities in the constitutional text, which would minimise the opportunities for encroachment. There needs to be a more balanced method of determining pre-eminence within the concurrent field, by reference to clearly articulated principles such as subsidiarity and co-operation, rather than blunt assertions of central supremacy or provincial exceptionalism. Institutional safeguards could include formalised roles for the provincial level in central legislative and policy-making processes such as through a second chamber, and in the executive through inter-ministerial councils.
All multi-level systems, whether devolved unitary states or federal states, reflect a particular institutional configuration between self-rule at the periphery and shared-rule at the centre that answers to specific democratic requirements of each society. In post-war Sri Lanka, the central compulsion and requisite of constitutional reform is to discover this elusive balance, both with regard to the meta-constitutional norms of democracy and power-sharing as well as the particular forms and structures through which we give effect to them. While greater provincial autonomy is clearly needed, and over-centralisation drastically reduced, we should not lose sight of the shared-rule dimension in envisioning a future constitutional order that unites the peoples of Sri Lanka while guaranteeing their autonomy. Many may feel that this is an esoteric debate, and some may feel that the emphasis is misplaced, to the extent that the key focus of moderates, progressives and liberals in the context of the post-Eighteenth Amendment constitution and the problem of hyper-centralisation, should be stronger provincial autonomy. In this view, the democracy rationale only adds impetus to the older power-sharing imperative in the advocacy of greater devolution. I agree, but as I have argued, the debate about the forms and extent of stronger provincial autonomy cannot, and should not be conducted without regard to the way shared institutions are designed to function.
In this regard, in addition to other devices such as a second chamber, I strongly believe that the retention of a field of concurrent jurisdiction – understood as both a key organising principle of a devolved polity and as a norm of constitutional democracy – is particularly desirable. The concept of concurrency supports a co-operative rather than a competitive culture of multi-level governance. Its removal to make way for an exclusive division of subjects between the centre and the provinces may not necessarily ensure the desired protection of provincial autonomy. On the contrary, given the zero-sum nature of our political culture, an exclusive division of powers may well serve to institutionalise a deleterious culture of antagonism between different tiers of government, a tendency to which the crucial relationship between the Tamil-speaking provinces and the central government is especially vulnerable. The resulting constitutional deadlock and failure would be disastrous for our post-war society.
In redressing the problems encountered with the Thirteenth Amendment’s Concurrent List, therefore, we should be careful to avoid throwing the baby out with the bathwater, or if preferred, the champagne out with the cork.