The “Illegitimate” Appointment of the North-East Governor

March 22nd, 2008

by D.B.S. Jeyaraj

Provincial council elections for the Eastern Province are scheduled for May 10th this year. According to gazette notification on March 13th, nominations for Eastern provincial polls will be accepted from March 23rd to April 3rd. It appears that the eastern provincial stakes would attract more political parties than the recently concluded local authority polls for Batticaloa district.

While the spotlight is all on the east ,the north is being neglected in the current scheme of things. When the All Party Representative Committee (APRC)changed direction by shamelessly surrendering to Rajapakse’s diktat and presented the President’s directives as APRC recommendations , some mention was also made of the North.

It was said then that the North too would get it’s own elected provincial council when the Liberation Tigers of Tamil Eelam(LTTE) organization was dislodged from its present position and the whole province came under Government writ. Until that distant date an interim Advisory council (IAC)would be set up it was proclaimed.

Soon there was hectic lobbying for posts in the envisaged IAC. While anticipatory coo - cooing reached a crescendo within the dovecotes of the hangers - on , a “spoiler”, set the cat among the pigeons.

This was none other than former defence secretary Austin Fernando. In an article published in special section of “The Nation” dated Feb 3rd 2008, Mr. Fernando raised some pertinent doubts.

Mr. Fernando’s chief observation was that there was a difference between a” Provincial Council” and a “PC area”. PC and PC area were two different entities.He pointed out that though this Government had created the northern PC area as a de - merged unit, it had not created a PC under Article 154 A of the Constitution.

Austin Fernando who described himself as a “layman” in law went on to argue eloquently that the proposed Interim administration or IAC ran the risk of being “invalid” in law.

Since the IAC was not an “institutional arrangement to advise the Governor or PC” under the Constitution or any other law the possibility of the IAC being “interpreted as inconsistent with the Constitution” was there stated Austin Fernando.

There was a response to Mr. Austin Fernando the following week in “The Nation” of Feb 10th 2008. This was by Dr. K. Vigneswaran the General Secretary of the Akhila Ilankai Tamil United Front and former Secretary to the Chief Minister of the North-East Province

In 2006, Dr. Vigneswaran was a signatory to the Majority Report of the Experts Panel, appointed by the President to assist the APRC.

Here are some excerpts from Dr. Vigneswaran’s article

“Mr. Austin Fernando raises the question whether the appointment of an IAC for the Northern Province would be legal. Such a question could be applied to the Eastern Province as well. He rightly argues that a Provincial Council has not been constituted for the Northern Province under Article 154A(2).”

” I would go further than that and state that the two Provincial Councils established for both the North and the East under Article 154A(1) have not been constituted under Article 154A(2) since constitution takes place only upon the election of the members of such Councils. ”

“It therefore follows that a Provincial Council which has been established, but not constituted could only exercise executive powers vested in the Governor of the Province and nothing more. Legislative powers conferred on a Provincial Council cannot be exercised. As a corollary, it cannot also exercise executive powers conferred on the Province in respect of the Concurrent List since such powers cannot be exercised without the power to make statutes. Also, Articles 154K, 154L and 154M will not be applicable to the Provincial Councils of the North and East.”

After explaining further Dr. Vigneswaran then went on to suggest -

“The only other alternative would be to revive the merged North-East Provincial Council, the merger of which had been held by the Supreme Court to be ‘void ab initio’ for the tech nical reason that section 37(1)(b) of the Provincial Councils Act No.42 of 1987, was not properly amended prior to President Jayewardene making the Proclamation under section 37(1)(a). In my view the President has to take a bold initiative and present a Bill to Parliament an amend section 37(1)(b) with retrospective effect. Article 75 of the Constitution provides for enacting laws having retrospective effect.”

“If the President were to take such a bold initiative he would be applying a soothing balm to the deeply hurt Tamils of this country and would be able to convince the moderates of this country as well as the international community that he is genuinely interested in sharing power with the Tamils and the Muslims. I see this as a window of opportunity for the President to prove his bona fides.”

Whatever the validity and legal viability of Dr, Vigneswaran’s plea to the president that the North and East be re- merged, there is very little chance of Mahinda Rajapakse being amenable as the political implications of such an act would be massive.

The Sinhala ultra - nationalist agenda of the Rajapakse regime deems it imperative that the East remains separate from the North to facilitate speedy “sinhalaisation”. Thus the option of “re- merger” though legally practical is seemingly impractical politically.

The “debate” generated by Austin Fernando and K. Vigneswaran had its effect. The Government realised that there was a problem over appointing an Interim Advisory council. The idea was shelved and the appointment of a separate governor to the Northern province became important.

There is however much bickering among the Tamil lackeys of this regime to be Northern governor. At the same time there is also pressure on the president that a Tamil should not be appointed as governor to the pre-dominantly Tamil (95%) Northern province.

Thus the issue seems to be on hold for now and Eastern province governor Mohan Wijeywickrama continues as acting governor of the north too.

There is however a question of legality surrounding the issue in the aftermath of the Supreme court judgement of Oct 16th 2006 whih paved the way for North - East de- merger. Just as the merger was deemed illegal the legitimacy of the North - East governor is also disputed.

The de- merger of the North and East brought about through the historic SC judgement of Oct 16th 2006 has come to stay.

It was the chief justice Sarath Silva himself who wrote the ruling with supreme court justices Jayasinghe, Udalagama, Fernando and Amaratunga concurring.

The crux of that landmark judgement was as follows -

“The next question to be decided is in relation to the validity of Order P2 effecting a merger of the Northern and Eastern Provinces. Section 37(l)(b) contains two mandatory conditions that have to be satisfied before a Proclamation effecting a merger is issued. The address made by the President to Parliament and the statements made as to the security situation seeking an approval of the Proclamations of the state of Emergency in the year 1988 referred to in the preceding analysis clearly establish that the President could not have been possibly satisfied as to either of these mandatory conditions. The endeavour to amend the mandatory conditions by recourse to the Emergency Regulations demonstrates that the President in his own mind knew that the two mandatory conditions have not been satisfied. An axiomatic principle of Administrative Law is thus formulated by Wade and Forsyth early in the treatise as follows

“Even where Parliament enacts that a minister may make such order as he thinks fit for a certain purpose, the court may still invalidate the order if it infringes one of the many judge-made rules. And the court will invalidate it, a fortiori, if it infringes the limits which Parliament itself has ordained.

(9th Edition page 5)

The Proclamation P2 made by the then President declaring that the Northern and Eastern Provinces shall form one administrative unit has been made when neither of the conditions specified in Section 37(l)(b) of the Provincial. Councils Act no. 42 of 1987 as to the surrender of weapons and the cessation of hostilities, were satisfied. Therefore the order must necessarily be declared invalid since it infringes the limits which Parliament itself has ordained ”

The SC judgement has been hailed by many for effectively de- merging the North and East by declaring that “merger” null and void. What has been overlooked in this is the logical consequences of such a lofty verdict.

For it stands to reason that the resultant consequences of such a judgement cannot be confined to limited spheres alone.One cannot engage in cherry - picking in this.

The Supreme Court decreed that the “merger” that had been in force for twenty years was null and void. Thus an “illegitimate” set - up was deemed to have been in force for two decades

Since the North - East merger was invalid , the old order had to be torn down and separate Provincial councils,administrations and governors have to be created for both provinces.

The perplexing question at this juncture is about the legal status of other related matters too. For instance how legitimate was the appointment of the governor for the merged North - Eastern province?

The same judgement that renders the merger invalid also by extension makes the N- E governor null and void .Therefore was the N- E Governor appointment legitimate or illegitimate?is the question.

This column posed this query to President’s counsel Dr. Jayampathy Wickramaratne who was until recently an adviser to the minister of Constitutional Affairs.

Dr. Wickramaratne has also played an important role in formulating the draft Constitutional reform bill of 2000 and was also a signatory to the majority report presented by the APRC experts panel.

Here is what Dr. Wickramaratne had to say about “legality” -

“According to the judgement, the Proclamation of the merger has been made when neither of the conditions specified in Section 37(l)(b) of the Provincial. Councils Act no. 42 of 1987 as to the surrender of weapons and the cessation of hostilities, were satisfied. “Therefore the order must necessarily be declared invalid since it infringes the limits which Parliament itself has ordained”, the Court held. ”

“The Court has held that conditions precedent to the exercise of the power to merge the Nothern and Eastern Provinces had not been satisfied. Although the words “void ab initio” were not used, that is implied. ”

“The resulting position is that all that followed the illegal Proclamation is also void. The appointment of the Governor is void. Acts of that illegally appointed Governor such as the appointment of the Provincial Public Service Commission are also void. Acts of the Provincial Public Service Commission are also void.The Commission must have made thosands of appointments and exercised disciplinary control over hundreds of officers. ”

Dr. Wickramaratne also ventured to opine ” Article 154 (3) of the Thirteenth Amendment states that Parliament may by law provide for the merger of two or three provinces. The merger was under the Provincial Councils Act. It may be possible to validate acts done consequent to the merger by special retrospective legslation. ”

“This is a matter that has to be looked into carefully” he emphasised.

This column also asked Colombo University Law professor Dr. Rohan Edirisinha to comment in this regard. Dr. Edirisinha together with Asanga Welikala, his colleague at the Centre for Policy Alternatives (CPA) responded to some of the queries submitted via electronic mail.

Here are some excerpts from the observations made by Rohan Edirisinha and Asanga Welikala to the issues raised by this column.

On the questions of N- E de-merger, P.C’s, 154 A (3) and the validity of the appointment of Governor for merged North - East province -

” If one looks at the 13th Amendment to the Constitution, 154 A (1), it seems clear that a Provincial Council has been established in the northern province and the eastern province by virtue of a gazette notification of 3 Feb 1988 and referred to by the Supreme Court in its demerger judgement - Wijesekera at al v Attorney General, SC FR Appl. 243 245/06. ”

“It may be possible to argue however that a Provincial Council has not been constituted in the northern or eastern provinces as elections have not been held separately in each of the provinces. See Art 154 A 2.According to Art 154 B, a Governor shall be appointed for a Province for which a Provincial Council has been established. ”

“Art 154 A (3) is interesting as it commences with the words “Notwithstanding anything in the preceding provisions of this Article..” and then provides that Parliament may by law provide for two or three adjoining provinces to merge to form one unit with one Governor. This presumably even covers situations where the provincial councils have not been constituted. ”

“In the demerger case the Supreme Court declared that the merger of the northern and eastern provinces by the president acting under Section 37 of the Provincial Councils Act, was void. This was on the basis that the mandatory conditions that had to be fulfilled under that section for the merger to be effected had not been fulfilled and also on the basis that the president’s amendment of the mandatory conditions via an emergency regulation was ultra vires and, therefore, invalid.”

“The Supreme Court declared in its judgment that the merger of the two provinces was void but is silent on the validity of acts done pursuant to such a merger and also the validity of the appointment of the Governor of the merged north-east province. It could be argued that if the merger was void ab initio, then logically all acts that flow from such an act are void.”.

They also observed in this respect that -

” The Supreme Court of Sri Lanka usually is very concerned about not disturbing continuity, certainty in the law and settled expectations etc. These are the phrases used by judges to reject challenges to the constitutionality of legislation and even sometimes to refuse to overturn legal precedents which may be wrong, but have been accepted as law for a long period of time.”

” The fact that in the demerger case, the Supreme Court did not address this issue- the issue of the legality of the various initiatives, development programmes etc administered under the aegis of the North-Eastern Provincial Council is surprising, out of character and could even suggest a lack of concern about development and administration in the north and east from 1988 to 2006.”

” It could be argued that it demonstrated a primary concern for legality and technicality over empathy for the people/s of the north and east”.

Asked about the legality or illegality of the N- E governor and acts done by him , Edirisinha and Welikala said -

“Another possible approach is to argue from a kind of “presumption in favour of legality” perspective. Those who want to argue that the existence of a Governor of the North East is illegal will then have to challenge his appointment or his actions after the judgment, and until that is done and the courts declare his actions illegal, they remain legally valid. One will have to wait until this is done.Venturing an opinion before that would be premature”.

Asked whether re- merger of North - East was necessary for rectifying the issue their response was -

“The argument that the only way to legalise past decisions/actions is to merge the north and east again by retrospective legislation is weak. Parliament could instead by retrospective legislation merely validate all actions, appointments made by the Governor without going beyond that and merging the north and the east.”

Asked whether the fact that executive power remains with the President had a bearing on this, both replied -

“The argument that notwithstanding the 13th Amendment, executive power remains substantially with the President, (the position of Sharvananda CJ and the majority in the case on the Thirteenth Amendment to the Constitution 1987 2 SLR 312), that some clauses in the 13th Amendment itself, eg- Art 154 B (2) that provides that the Governor holds office, in accordance with Article 4 (b), could be used to argue that the President’s considerable executive power, in a way, validates everything.”.

Asked what the situation could be if the N-e governor position is legally challenged and upheld to some extent, Edirisinha and Welikala said -

“If the actions of the NE Governor or even his position is legally challenged and if there is a likelihood of the courts holding that some of these acts/ the Governor’s appointment itself was invalid, the President and Parliament can with a combination of the President’s executive power and the enactment of validating legislation avoid the possibility of ALL acts of the North-East administration being declared void. We are not necessarily endorsing such a course of action but suggesting that Sri Lanka’s constitutional tradition of ensuring executive convenience probably enables a government to deal effectively with such a challenging situation.”

Asked to speculate on how the courts may view the issue if it came up, both of them responded thus -

“There are no clear and obvious answers to the questions of constitutional interpretation raised. Various options exist, several arguments may be developed. A lot will depend on the attitude of the courts. Now that the Supreme Court has demerged the north and east, the court may well wish to cooperate with the executive in ensuring that what has happened in the past few years in the North and East in terms of administration and development, is not undone”.

It can be seen therefore from the comments made by Jayampathy Wickramaratna, Rohan Edirisinha and Asanga Welikala to the questions posed by this column that the legality of the appointment of the Governor to the merged north - eastern province is seriously doubted. The rationale for “merger” being null and void applies here too.

This then raises pertinent questions of a serious nature. If the N - E governor was “illegitimate” then what is the position of all acts done in an official capacity?

Can the fact that the President retains executive power suffice to justify or override the “illegality” issue?

In any event the power to make certain appointments was vested earlier with the cabinet of ministers and later the provincial public services commission and not the executive president.

Is re - merger of both provinces mandatory in a legal sense to rectify the situation? If so what are the political consequences?

Is new, enabling legislation with retrospective effect necessary to remedy the situation?

Why was this issue not addressed adequately during the landmark case and judgement of October 16th 2006?

Also why were not these crucial matters addressed in the aftermath of the judgement?

The focus has been on the dismantling of the merger alone without heed for other resultant effects.

How will the S- C respond if the legality of the N- E governor appointment is challenged before it as in the case of the N- E merger?

As the legal and Constitutional experts themselves have stated there are no definitive answers here.

In the final analysis it is the Supreme Court which ruled the merger invalid that must clarify all these issues and provide guidelines.

The “illegitimate” appointment of the North - Eastern governor issue is but illustrative of the problem and requires SC perusal and opinion.

With all due respect to the Supreme court it does appear that the October 16th judgement was only of a “limited” nature. There are other areas too that require clarity and a clear sense of direction.

This can only be done by the Supreme court in general and the present chief justice himself in particular.

For that to happen the issue must be raised in courts. The President or Government could explicitly seek SC direction.

Some civic minded individual or organization could also go to courts and seek a ruling.

Even some person affected by the N- E governor “legitimacy” issue could seek redress from the judiciary.

As is the case in many matters , this important issue about N- E governor legality has been allowed to drag on for too long.

It is imperative that it be addressed and rectified quickly.

Time is of the essence here.

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