Interim Advisory Council for North:Problems In Setting It Up
by Austin Fernando
APRC proposals are to be implemented through a governor and Interim Advisory Council (IAC) for the Northern Provincial Council (NPC). Mark the words IAC, NPC and governor. Even as a non lawyer, I foresee legal barriers which have to be surmounted.
Let me explain some of them:
Firstly, there is no institution called IAC in the Constitution, but this could be overcome under 154L (1) (c), through consequential provisions.
Secondly, a PC is an institution constituted under Article 154A (2) of the 13th Amendment, which says that, “a PC shall be constituted upon the election of the members of such a Council.” There were no elections held after the de-merger and therefore, NPC is simply not legally constituted. If the first PC election is applied, it was under a merged north, east, which is legally and politically redundant now.
Thirdly, according to Article 154B (1), the governor’s appointment is constitutionally right and he can exercise executive power under Article 154C. Without a constituted PC, when “a one man show” (OMS) prevails, for it to be called “devolution” is a misnomer. This happened for 20-years in the north and east, which is bad enough, but that was at least after constituting a PC. Other PCs have an elected Council and a governor and therefore, this would be half baked devolution, as it had been for 20-years.
Therefore, appointing a constitutionally unmentioned IAC to a non existent NPC, to aid an OMS governor, is similar to giving an electricity connection from an unconnected main to a non-existing house! The unconstitutionality of the PC, and the potential manipulations through the governor, cannot be satisfactory devolution.
Indians have reportedly said that this could be a “good first step.” Surprisingly, the South Block bureaucracy and politicians in New Delhi have considered the non-existent PC and OMS governor, as adequate for devolution, probably to demand more.
Apart from these, another hurdle will be the appointment of the IAC.
The government derives authority to devolve power from the 13th Amendment. Article 154K requires failure to comply by a PC or a governor not carrying out directions, for the President to hold that the administration cannot be carried in accordance with the constitutional provisions. PC issue does not arise as a PC is not in existence. I do not think the governor has not carried out presidential directives, if any. Therefore, Article 154K may not be based for appointment of the IAC.
To implement under Article 154L, the President should receive a report from the governor. If he receives such report from a governor, it would be awkward, as the governor cannot be evaluated in such a short time. My personal knowledge is that he performs more actively than other governors. Therefore, the President will depend on being “otherwise” satisfied to make a Proclamation under Article 154L (1).
Such Proclamation is to assume “all or any functions of the administration of the Province and, all or any powers vested in or exercisable by the governor or, anybody or, authority in the Province” [Article 154L (1) (a)] (Note it is not that of the PC but of the Province.), and declare “the powers of the PC shall be exercisable by or under the authority of Parliament”. [Article 154L (1) (b)]. When the President does so, while Article 154L (1) (a) states that he cannot assume the powers of the PC, (i.e. “other than the PC”) there will be legal conflict, as I understand, because we are discussing a non existing quantum. According to Article 154M (1), 154M (1) (a) and (1) (b), the powers that will be declared under Article 154L will belong to a PC and not merely to a Province. Is it not tantamount to conflict between Articles 154L (1) (a) and 154M (1), (1) (a) and (1) (b), because there is no constituted PC?
Anyway, if Parliament takes charge of NPC administration, thereafter, [Article 154L (1) (b)] it would mean centralising than power sharing or devolution. It will be conceptual and ideological checkmating.
[Austin Fernando]
Dr. Vigneswaran, in an article in The Nation, compared IAC appointment to Indian experiences. Accordingly, in India, the governor, not the president, appoints any committee of IAC’s nature. This too, when the constitutional machinery has failed, state government dismissed and legislative assembly dissolved. In the NPC situation, constitutional machinery had been forced to fail by constitutional strangulation. How can a non-existing PC (state government) be dismissed or a non-existing council (Assembly) dissolved, if Indian comparison is accepted?
The constitutional solution proposed by Dr. Vigneswaran is to merge the north and east. Would not the government be checkmated, if Indian legality is to be honoured by merging?
Assuming that the governor’s appointment is legally valid, irrespective of an OMS, he has to adhere to Article 154B (8) (d) in receiving advice. Accordingly, he shall exercise powers in accordance with the advice of the chief minister, so long as the Board of Ministers commands, in governor’s opinion, the support of the majority of the PC. There is no PC and hence, no Members or Board of Ministers. Are we constitutionally consistent in considering the IAC members aiding and advising the governor as equivalent to chief minister + PC ministers, when IAC members are not even elected PC members?
The IAC chairman cannot be the chief minister equivalent, as the latter’s appointment is specifically stated in the Constitution, Article 154F (4). In such an event, how could the governor accept any advice from a group of presidential appointees in the IAC, other than on the basis of political expediency, not mentioned in the Constitution?
The other legal loop-i.e. Article 154T-empowers the President “to take action or give such directions, not inconsistent with the provisions of the Constitution, as appears to him to be necessary or, expedient for the purpose of giving effect to the provisions of this Chapter or for administrative changes necessary therefore, or for the purpose of removing any difficulties.” The legal issue I highlight is that the APRC propositions fail due to quoted constitutional inconsistency on the constitution of the PC. Therefore, APRC recommendations implemented under Article 154T, could be challenged and be unproductive, other than for OMS governor’s actions.
I appreciate and endorse government’s interest to share power, if they are pure and genuine. However, I am unconvinced of the practicality, constitutionality and legality of the APRC proposals to impact devolution, because it contradicts the basic practices of devolution and partly fails constitutionally. Do not misunderstand me; I say so not to discredit the President whom I respect or, APRC or, Indians but, because I like to see honourable attempts to solve the national crisis and bring “honourable peace.”
As I lack legal knowledge, I look forward for courts or legal luminaries to do what is right. Finally, I say that, if weak formulation of APRC proposals was to deliberately delay through legal bouts, then, the APRC has fulfilled that need superbly! [courtesy: nation.lk]
M.thiru said,
February 19, 2008 @ 2:22 am
It looks like by signing a pact with Rajiv and introducing the 13th amendment and forcing it on Tamils , dharmica JR Jeyawardne really foxed India in 1987. LTTE was right then and it looks like JVP /JHU going to the courts over the 13th amendment now is going to be right like the NE de-merger verdict.
But how about the 1972 constitution which experts say illegal and deletion of Soulbury’s provision for the protection of minorities? How about the UN charter and the protection minorities from state terrorism ? Will Ban Hee Moon representative will look into these when he visits the Island on 24/2/2008 and declare cease the war on Tamils? or Will it be another endorsement of state terror by Rajapakse regime to continue ?
ilaya seran senguttuvan said,
February 19, 2008 @ 9:14 am
The whole facade is quite simple, really. No Sinhala Govt whether of the UNP or SLFP, ever wanted to sincerely share power with the Tamils in the North East. Perhaps Chandrika went a little ahead of others around Yr 2000 in her own Draft Proposals – and that too because of International pressure, India that legal stalwarts like GL Peiris and Neelan pointed out we shall become international pariahs if we don’t. And, therefore, the LTTE gained not only internal acceptance but external as well – though not for their violent methods even of a responsive nature to State violence. In the nature of things, Mahinda R has reduced even what the 13th Amendment gave and JRJ’s 5/6th majority govt accepted in writing. But he thinks he has outfoxed the international community by showing them a different face. He has’nt and he cannot.The success he fools himself with having achieved will be limited to that of the pledge he gave the Indians – the people, the GoI and all in that widely televised NDTV Interview with Shekar Gupta – about the memorial Statue GoSL under his leadership will unveil in the vicinity of Parliament vicinity by Feb 04, 2008. It is in a way expected those of plebian backgrounds, now and then, indulge in lying – and that too privately. When this happens when heads of State resort to what is referred in polite society as “being economic with the truth” then you have sold the image of the nation recklessly. That is both sad and totally unacceptable. Mahinda R tells the world the “Tamils are my people and I will share power with them to their areas” and then he tells others “I am a prisoner of the JHU/JVP. They are not allowing me what I want to do in the Tamil question”
Sir, you are only creating a situation for another Kosovo here
and that is inevitable unless you rein in the forces of
reaction and obstinacy within your Govt.
Devinda Fernando said,
February 19, 2008 @ 1:04 pm
*** Sir, you are only creating a situation for another Kosovo here
and that is inevitable unless you rein in the forces of
reaction and obstinacy within your Govt. ***
As if you really want there to be power sharing,….? Come on, Stop lying Ilaya, you want it to get worse,…. secretly you do, admit it……this way you can Claim ANOTHER ‘Kosovo’… Face it , you can see the Glee in the Voices of Tamil Separatists upon Kosovo’s UDI announcement because the precedent being set is hopefully something that you Separatists can try to spin to the UN and other countries for Sri Lanka’s Situation…but if you wanted power sharing and Federalism you could have voted for Ranil in 2005….
Yet Tamils boycotted the 2005 Election…. ? LOL now what do you have? Nothing, except the hope that the SL government will drop the ball and start actually killing Civilians on purpose, then you can perpetuate the Myth of an Ethnic Conflict to the Uninformed International Community and hopefully get some sort of Western country’s ‘Heroic’ Intervention to SAVE THE TAMILS from Destruction! LOL!
ilaya seran senguttuvan said,
February 20, 2008 @ 12:43 am
Dear Devinda (3#)
I note you have taken upon yourself to comment on various matters in these columns advancing Sinhala interests. Why not? After the Tamils and the British, Sinhalese are those closest to my heart. I have dozens of wonderful friends in Sri Lanka and abroad. I am part of their families and their regular personal functions. So do be assured I do not wish any harm to come to my Sinhala friends, their ancient race or the Sinhala Buddhist religion. I grant they have many fears – almost all of them unfounded – and many myths created by ignorance. Recently, a Priest I personally like
Ven Sobita Thero – was in a discussion with us at the OPA discussing the 17th Amendment You know millions of Sinhala Buddhists rely on the Ven Thero’s pronouncement. In the eloquent speech he gave that day in beautiful Sinhala – that I know reasonably well – he referred to the 13th Amendment and said although it is over 21years old, it is being presented by the govt as something new. He laughed at this and said what is being bandied about now is the same instrument that was presented 21 years ago and added “kadadhasi vitharai marukarala thiyannai” (Only the paper that it is presented now is changed) Without openly contradict him, I told him later when I accompanied him to his car that the 13th Amendment that is being presented now cannot be compared to what was presented in 1987. I told him the central feature of this was the De-Merger that has been killed by a legal technicality and added I do not want to press on this since it hurts Sinhala feelings.
I told him Police Powers, Land, the right of Colombo to dismiss the CM/Council makes the whole Bill lost its identity entirely.
He politely told me “Mahathmaya! Mama sathutui Api megana wadiwela davasak kathakaranna” (Sri, you and I must sit down and talk about this in detail one day soon)
You ask about power-sharing. Believe me, if the Sinhala South had the good sense to devolve the agreed power to the North East 20 years ago, Sri Lanka would have enjoyed an annual income well over US$10,000 by now – 1/3rd of the Singapore dream.
Even today if you and your extremist friends can pump sense into the Sinhala side to devolve power to the North East, the LTTE will become irrelevant. CBK and Mahinda told umpteen times, they will develop infra-structure in the North and East,
help agriculture, fishing, hospitals, drinking water facilities,
roads, electricity etc bud this remains rhetoric onlyl. All what you have succeeded in bringing is PC’s to the rest of the country – which never asked for them. You merely denied PCs to the District that really needed. What you have succeeded is making multi-millionaires out of many PC Councillors in the rest of the country because almost all of them have got Pajero/Montero permits they are openly selling at
Rs10 million – while it costs them Rs3 million and less. Isn’t that the raw truth? So are you surprised the country is going down the drain and remains disunited?
Tamils did not boycott the 2005 Election. Mahinda “won” by about 100,000 votes over the swollen headed and arrogant Ranil. Mahinda got Tiran to bribe the LTTE to prevent half a million votes going to Ranil – which is now out in the open. There would have been better evidence if Siripathi was living.
Then your friends conspired with JVP Grama Sevakas in the South and ensured over 400,000 certain UNP votes were sabotaged because when these voters went to the Polling Stations their names were simply not there – including mine.
The GSs were ordered to make sure these people (suspected UNP supporters) do not get their Polling Cards so that their names are out of the Voters List. So the actual fact of the 2005 Presidential Election was Ranil W won by over 500,000 but Mahinda R cheated Ranil and the people out of it.
So you see the quality of government and the country in
2002-2004 and now. You cannot now go in the street, in buses, trains or in your vehicles. It is not only the LTTE that is behind the bombs but sections of the Govt as well – something which everyone is all too clear about. Children cannot go to school.
School Cricket matches will be vurtually banned soon. You will be in a prison that you very much deserve – while the Brothers Inc and their friends will do low-flying in their luxury vehicles
in our main roads with hundreds of Police keeping you out
until the savari is over. When the next tranche of US50 billion notes is printed by the Central bank petrol will be Rs200.litre Bread/Rs100 Rice/Rs200 Coconuts/Rs100. We will have to run to India for our food – a reverse trip that the Indians made here until the 1950s. That is the Sri Lankan Democracy that is now your due, Sir.
The Tamils here and I do not want a Kosovo here. We did’nt want the IPKF here either. They came here at JR’s invitation to
save his tottering Govt – then under attack both by the JVP, the LTTE and sections of the Army. We want the Lanka of pre-1956 when we were all together as friends and brothers. Don’t make the mistake of identifying all Tamils here with the LTTE. The LTTE is only, in a way, is an emotional condition. You remove the causes that gave birth to the LTTE and you regain the pre-56 Status Quo. Dear Devinda, I know you have more political sense and education than many of our current leaders to distinguish between the woods and the trees. So, Good luck to you, my friend, in the interest of OUR MOTHERLAND.