By Austin Fernando
I Support power sharing. Therefore, my attention is drawn to this proposal, irrespective of no acceptance or denial by any government authority of this purported proposal. What the media reported was that a Development Authority is to be established for the City of Colombo. The move is to abolish the Colombo Municipal Council (CMC), vest its functions to this Authority and consequentially scrap the elected Council.
Sometimes CMC’s performance has been criticized as inefficient, ineffective, uneconomic, politicized, corrupt, lethargic and inadequate. Large piles of solid waste, dengue spread, environmental pollution, illegal constructions etc were the areas mostly criticized. Hence this revelation may be welcome news to rate payers and citizens interacting with the CMC. Additionally, there was publicity that the proposed Corporation will function under the Secretary, Ministry of Defence, which would have brought happier smiles.
In the recent past there had been periods where the CMC received accolades. Mayoral terms of Sirisena Cooray [pre Provincial Councils (PCs)] and Karu Jayasuriya (post-PC) are examples. These performances were consequential to the political clout the former had and the professional managerial capacity enhancement during the latter’s, respectively. It is the same organization, laws, technocrats, managers and work force that performed for such positive kudos.
Hence, whether corporatization is the only answer to respond to inefficiency, ineffectiveness, uneconomical status may boggle our minds. We hear of undisclosed political intentions for this proposal, but this exercise is to direct attention to power sharing for reengineering.
Pending legislations for centralization
Firstly, we hear powerful legislators speaking of “enhancing the powers of the 13th Amendment to the Constitution” expected to be law in January 2011, but with reduction of certain powers already devolved Additionally, media indicates the new law to convert CMC to a Corporation to be passed before end 2010. Law to change the elections process to Local Authorities (LAs) is scheduled for early passage. Secondly, there are international and domestic demands to strengthen the 13th Amendment to create minority community confidence. Some parties in the government are unsupportive of “power sharing”. By withdrawal of devolved powers (e.g. schools, hospitals), non-implementation of Land powers, blocking sharing Police powers etc, every government since 1987 has proved their allergy to genuine power sharing.
Even the current reengineering exercise proves the incumbent government’s reluctance to power sharing and the enchantment to centralize already devolved power. Thirdly, we have not yet seen the Draft Bill. If we go by the media, with the establishment of a Corporation (or Authority) the democratically elected body to administer the CMC will be erased.
13th Amendment and Corporatization
The existing law for Local Government is constitutionally based on the 13th Amendment.
I quote Section 4 of the List I- Local Government. “4.1 Local authorities for the purpose of local government and village administration, such as Municipal Councils…..” will be under the PCs. Under 4.2 PCs are empowered for “supervision of the administration of local authorities established by law…”. Therefore, by creating a Corporation under central control, the devolved powers of the Western PC (WPC) will be erased. Several items under List I that matter to the CMC will be withdrawn. Therefore, a constitutional amendment may be required to withdraw the reference to Municipal Councils (MCs) under Section 4 of List I, because Parliament cannot make laws overriding the Constitution.
Section 4.3 under List I offers the most relevant powers for the PCs.
“4.3 LAs will have the powers vested in them under existing law; MCs and Urban Councils will have the powers vested under the MCs Ordinance and Urban Councils Ordinance. …….. It will be open to a Provincial Council to confer additional powers on local authorities but not take away their powers.”
If the government wishes to strengthen the CMC, constitutionally it should be done by the WPC. Withdrawal of power is not permitted by the Constitution. But, the proposed organization will take away PC powers, instead of conferring additional powers, thus contradicting the 13th Amendment. Therefore, this constitutional hurdle must be overcome if the Authority is to gain life.
Media reports, though not specific impresses that this law will be introduced soon. Hence, one may explore the forum to legislate to corporatize the CMC. No PC for the last 23 years has passed the LA Statutes, excepting to remove Chairmen and Mayors! A new corporatization Statute may not be born within the next two months. Therefore, the government may get a resolution passed in the WPC authorizing the Parliament to act according to Article 154G (4). It permits the Parliament to pass legislation on the request from a PC. Still the question will be whether the WPC could ask for reduction of its powers- going against Section 4.3 of List I.
When the 18th Amendment was brought, senior ministers argued that the scrapping of the two election terms [Article 31 (2) of the Constitution] reflected the enlargement of franchise; being more democratic; giving more opportunities to the voters to elect a President. If it was enlarging franchise, what is withdrawing the given opportunity to elect their Municipal Councillors? One democratic principle for LAs and another for Presidency! Our politicians are great innovators and justification will be done! The MCs exist in many districts. The electors in these MCs engage in democratic franchise to elect Municipal Administrations.
Creating a Corporation under the Ministry of Defence as publicized, forcibly withdraw them from the election process -‘an afforded possible opportunity to the People to participate’ at a legally accepted level of ‘national life and in government’. It will thus conflict with enjoying the fundamental right provided by Article 27 (4) of the Constitution, which expects the State to “strengthen and broaden the democratic structure of government and the democratic rights of the People by decentralizing the administration”. What happens here will be centralizing administration and withdrawing a democratic right.
Though the constitutional provisions on exercising franchise does not [Article 4 (e) of the Constitution] speak of LA Elections, by corporatizing the CMC and scrapping an elected LA will consequentially disenfranchise the electors in Colombo. This will be discriminatory to the electors within the CMC, when compared with electors in other MCs.
Corporations and success
It appears that the promoters of this proposal believe that corporatization is the panacea for municipal management ills. The cumulative and continuous weak performance of many corporations like the Ceylon Electricity Board (CEB), Ceylon Petroleum Corporation (CPC) and Ceylon Transport Board (CTB) are examples of centralized organizational failures.
What is the guarantee that a corporatized CMC would perform better than now? Performances during Cooray’s and Jayasuriya’s mayoral terms were proof of the potential to be successful under the MCs Ordinance. Success disappeared after their resignation. The political clout, personality and professional skills of these two could not be sustained afterwards. This could happen with the proposed changes too. Where should we head if and when it happens? The Buddhist theory of impermance is right.
Therefore, if corporatization is to happen as anticipated I caution that the 13th Amendment provisions affecting this proposal have to be erased. Whether, it would suit other political issues is a matter to be reviewed by politicians.
Secondly, the “super managers” with all cross connections may not be available throughout and hence there cannot be solutions to the later emerging problems.
Thirdly, I believe that if the proposed reengineering takes place there will be funds for very sophisticated improvements, such as municipal highways, electric underground trains, mono-rails, infrastructure development, high rise residential areas etc because of the political and official clout of operatives. Will that be eternal for continuing such after the “super managers” withdraw? It is necessary to think on sustainability too.
Lessons learnt from other experiences
I quote an example from India to summarily highlight how the Calcutta Municipal Corporation functions to serve in improving various civic amenities, providing numerous services, slum development programs, sewage and waste management in a city having a 4.6 million population. The lessons from Calcutta could be learnt to avoid major pitfalls in the creation of a Municipal Corporation for Colombo.
1. The Calcutta Municipal Corporation became effective on an appointed date by the State Government, because LAs are a State Government subject. Going along, why not place the proposed Corporation under the WPC? The issue of engaging the Defence Ministry has to be addressed, as WPC does not have authority over a Ninth Schedule List II subject, i.e. Defence.
2. Calcutta Municipal Corporation consisted of elected Councillors and non-voting ‘State Government’ nominees that combined democratic right for franchise and professional contributions respectively. The Defence representatives could be appointed to the Municipal Corporation by providing in the Statute. If the citizens are dissatisfied of the performance of the Corporation they can outvote them. But if it is a centralized Corporation the rate payers will be burdened like our being burdened with the CEB or CPC or CTB inefficiencies.
3. The 149 elected Councillors in Calcutta elect a Mayor, Deputy Mayor and Chairman and later constitute the Mayor-in–Council (MiC). It consists of the Mayor, Deputy Mayor and less than ten other elected Councillors of the Corporation- an arrangement like a Cabinet. The appointees to MiC will be the choice of the Mayor and hence collective responsibility could be established.
4. The Municipal Accounts Committee, Borough Committees, Ward Committees and Municipal Consultative Committees are established and empowered by the Act to enhance participation and ownership. These institutional arrangements can be introduced even in Colombo.
5. Municipal Corporation employees from the Municipal Commissioner downwards are appointed and vacancy filling, disciplinary control etc are stated in the Calcutta Act. This could go along with the provisions of our Provincial Councils Act.
6. The establishment of Municipal Service Commission and Municipal Vigilance Authority are provided in Calcutta, which are not in the MCs Ordinance but could be established by WPC’s Statute.
7. General, Obligatory and Discretionary powers and functions in the Calcutta Municipal Corporation are given in the Act. It includes all activities such as works and contracts, controls, Municipal Fund management, budgeting, loans, accounting and audit, taxation, civic services, sanitation related activities, and importantly the State Government’s actions etc. These are mostly the same functions under the MCs Ordinance in Sri Lanka.
These are some highlights.
Urban Development Authority (UDA) and CMCPresently the UDA is under the Ministry of Defence, which may have been so placed to influence the LAs advantageously. I believe that the UDA could be fruitfully engaged in guidance for efficient and effective municipal management through its available expertise in city planning, architecture, Geographic Information Systems, environmental development etc that is not adequately used.
Hence, a Corporation created under the WPC, with external expertise, having a stake in management, facilitated by the UDA (+Ministry of Defence) could be a workable effective combination that could be considered, rather than to violate the existing power sharing provisions in the Constitution and to steamroll devolved governance. Please do not tell that power sharing has failed, as the retort will be that even the centralized administration has failed. Does this mean that there is no solution for problems? It is a matter to develop Laws, Statutes, systems, expertise, professionalism, cooperation etc to optimally perform to achieve objectives. Sometimes centralization may not be the sole answer for municipal ills.