By Austin Fernando –

Governor in the Sri Lankan Provincial Councils (PCs) structure is a much respected personality. Governor DB Wijetunga elevated from the Governorship to Prime Minister and finally to Presidency. In recent times Governor GA Chandrasiri, a king-pin in eliminating terrorism has been in the news more than others.

At the inception of PCs Parliamentarians were chosen to become Chief Ministers (CMs) but later locally emerged leaders succeeded. Incumbent Northern PC (NPC) CM was an exception, coming from the supreme judiciary.

The Governors have generally carried out their official functions amicably with CMs, probably excepting in a few incidents in the South and East and now in the North. Governor’s have wide powers [e.g. Assent for statutes (Article 154H) Public Security (154J), Failure of administrative machinery (154L), Finances (PCs Act Section 19, 20, 24, 28), Establishment (PCs Act Section 32)]. However, the CMs also enjoy vast powers, especially as a democratically elected person, and sometimes making the Governor’s power conditional to his and his Board of Ministers (e.g. Article 158F).

Here, I recall my memory to visit a few experiential episodes of Governors and Chief Ministers to learn from the past and to project paths to win unity, reconciliation and development, especially in the North and East. They are domestically and internationally crucial. Therefore, many from top to bottom have to be ‘learners’!

Attempting dissolution of a PC

First episode is how political opponents attempted to oust a CM in office through the President. This happened to my school-day friend Amarasiri Dodangoda, CM of the Southern Provincial Council (SPC). It flowed from representations made to President Wijetunga, basing the absence of a Councilor- Mr. Fransisco, which cut into the majority required by the CM. This was humorously called “Fransisco-sization” (“ෆ්රන්සිස්කුකරණය”)!

One morning President Wijetunga invited me and the then Attorney General Tilak Marapana to discuss this issue. On legal terms we disagreed with the request. But, the opposing politicians were adamant to oust the CM when the discussion recommenced; but, we held to our guns. I openly disagreed with my Minister, which of course cannot be heard nowadays! Any bets?

When the discussion was progressing Prime Minister Ranil Wickremesinghe arrived, a bit delayed. He listened to arguments for and against. When the President inquired what he thought of the request, he said “With all due respect to my colleagues, I will go along with the two public officers” and explained why. With this sensible explanation respecting the Rule of Law, the vociferous demand was thwarted- at least for the time being. Many Sri Lanka Freedom Party supporters may not know this.

Governor’s Address

The next intrusion was when the Governor was to address the SPC fulfilling Article 154B (10) (a) requirements. Minister Dallas Alahapperuma was a SPC Councilor then and I believe he authored the Address. The Chief Secretary Albert Ratnayaka having read the statement was excited, because it had encroached in to the Reserved List of the 13^th Amendment. He brought this to the notice of the Presidential Secretariat.

I was promptly summoned by the President and was asked whether the statement was unconstitutional.  I endorsed it so. The President ordered me to ‘sanitize’ it by removing the unconstitutional entries, which I did.

When the document was returned the Chief Secretary informed that the CM was refusing to accept the changes. Hence, the President ordered me to summon the Governor and ‘order’ him to abide by the amended version. I told the President that I cannot do so due to protocol precedence. The President engaged my Minster John Amaratunga for it.

The Governor met us in the Parliament. The Minister who was to “order” the Governor “pleaded’, “Sir, please read the Statement as edited by Austin,” which was resisted by Governor Bakeer Markar. “John, how can I do it? I cannot.” was his response. He was adamant until I told him in desperation what the President asked me to convey him, as the last resort, if he did not cooperate— i.e. “Get ready to relinquish the governorship!” This totally flabbergasted the Governor. He reluctantly agreed to do as the President wished. This could happen to any Governor, any day!

To sort the issues I telephoned the CM, “Amare, the issues are complex; hence you go with my edited version” I suggested.  I explained that the demand in Colombo was to oust him and hence he should not miss his steps. Reluctantly he agreed proving how the centre can influence by accommodative dialogue.

These episodes highlighted the preference for the CM to prepare the Address, probably going by the parliamentary tradition. Since the Address was prepared by a parliamentary Opposition party, embarrassing political aspirations had to be expected- even in the North. This episode proved that pressurizing Governors or CMs has precedence and will repeat, initiated at the highest levels.

Court favors CMs

There was another incident where pressure on Governors boomeranged. It was in the North Central and Sabaragamuwa Provinces.

The background to the incident and court proceedings will explain how pressurizing could happen, and how countering happens legally.

The two Governors, having received complaints regarding the administrations, addressed the CMs seeking advice to dissolve the PCs. The CMs opposed the proposition. The Governors noting the CMs’ disagreement sought the ‘direction of the President’ under Article 154B read with Article 154F of the Constitution. No doubt this process also would have emanated from the Presidential Secretariat. Acting on the presidential direction the Governors dissolved the PCs followed by the Elections Commissioner activating the election process. On application made by the CMs to Court of Appeal, the dissolutions were quashed. Next, on an appeal by the Governor, the Supreme Court upheld the Court of Appeal judgment.

How the Governors should act and Presidents should not act is clear from the judgments (SC Appeals 41 & 42/96).  For posterity I may quote from the judgment by Chief Justice GPS De Silva to understand how Governors should carry out his responsibilities.

“A Governor is bound to act in accordance with the express provisions in Article 154B (8). He cannot rely on the fact that the executive power of the people is ordinarily exercised by the President. If the Governor is advised against dissolution by a CM, so long as the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the PC, the Governor must act on the advice of the CM. He is neither required by the Constitution, nor is he permitted, in those circumstances, to act in his discretion or on the orders and directions of the President. Where Parliament has prescribed the manner in which a power may be exercised, no one has any discretion to ignore those directions. Unless he complies with the directions, he acts illegally.”

This quote indirectly orchestrates also the denial of a presumed right of a President.

Since Executive President’s powers and authority is the mainstay in administration in the 1978 Constitution, this judicial stance need not be isolated only to dissolution of PCs. I opine its applicability to other issues where the Board of Ministers’ command is valued.

From past to present

Let’s turn to the present. Presently a problematic situation has arisen in the NPC.

The following issues circulate in the southern media, Tamilnet and in informal grapevine.

(1) The tradition and acceptance of the right for the NPC CM and his Councilors to prepare the Address, as demanded in the SPC episode.

(2)Constitutional status of the “Board of Ministers commanding, in the opinion of the Governor, the support of the majority of the PC” been questioned, if (1) above is true.

(3)Did the Governor act on the advice of the CM?

(4) Was there an accommodative dialogue for reconciliation?

However, the government could have anticipated repetition of encroaching the Reserved List as done by the SPC. The NPC’s CM clamoring for removing High Security Zones, devolving land and Police powers etc. would cause such attitude. Imagine the Address had “The NPC enjoying devolved land powers will remove all military camps in the Peninsula.” Can Governor Chandrasiri read it?

Government could have, like I did in the SPC case, taken the precaution of non-proliferation by editing and discussion. The consequential ethical, legal, procedural value addition would have been substantial, if had been done so. Reconciliation could have commenced then and there.

When the NPC has a legal minded CM and a militarily disciplined Governor, a via media could have been found, rather than steamrolling by the Governor ‘monopolizing’ the Address, as reported rightly or wrongly. Hawks on both sides would not have permitted such reconciliatory resolution, though it could have reinforced the government at international fora.

EHMP Elkaduwa vs. Hon: Stanley Tilakaratne’s Case

Last week end media reported on strained relations between the NPC CM and Governor. Accordingly, the Tamil National Alliance (TNA) has complained that a Secretary posted to serve the Chief Minister was moved out by the Governor. “A replacement had to be obtained. Two successive Secretaries assigned to the Provincial Ministry of Fisheries have also been moved out, they allege.” (Sunday Times 1-12-2013) Whether this transfer had any connection to Mahaveer Day is unknown to me.

To my knowledge, PC Ministry Secretaries are appointed on an old circular instruction by President’s Secretary WMPB Menikdiwela- numbered 30/27 of 22-6-1988 paragraphs 3(iii), 3(iv).

In this regard I draw the attention to a case.  The Supreme Court favorably considered in Elkaduwa vs.Tilakaratne and three others (Case No: 657/98), the representations of the petitioner based on this circular instructions. Consequentially the Central PC agreed for “the present status quo” to remain, meaning ‘withdrawal of transfers’ of EHMP Elkaduwa and Ananda Weeraratna. It upheld that the Secretary Public Administration could not transfer a PC Ministry Secretary and the proper legal authority is the Governor.

In addition, addressing the Governor of Central Province the then CM has said that even if the officers asked for release from their positions, they could not be released without the consent of the PC, [Un-numbered Central PC letter dated 1-3-1996, paragraph 6 (iii)], further endorsing the PC’s power over Governor’s discretion.

The Central PC resolved and attached the resolution to the petition in Elkduwa vs. Tilakaratna case, stating that the Board of Ministers disagree with the transfers and the transfers should not be expedited. Again this was to curtail Governor’s discretion.

Then arises how the Governor should act. The constitutional requirement of the “Board of Ministers commanding, in the opinion of the Governor, the support of the majority of the PC” may stand against a Governor who wishes to transfer officers on his personal discretion, if Secretary Menikdiwela’s circular is still valid. My inquiries revealed that some authorities were unaware of the existence of such a circular! Therefore, how could Governor Chandrasiri who was in the battlefields know of 25-year old establishment circulars?

Media further said that Governor Chandrasiri has reacted angrily and told “Tell them to read the Provincial Council Act. There is a Provincial Public Service Commission. The Governor has the power to carry out transfers. I am acting constitutionally.” I have deep respect to Governor Chandrasiri, but still appreciate his understanding Elkaduwa vs. Tilakaratna case ruling and satisfy whether the point of view in this judgment [i.e. Article 154B (8) (d)] is constitutionally invalid in transferring officers.

District Coordinating Committee (DCC) and CM Wigneswaran

On top of these contradictions the NPC CM has refused to attend the DCC co-chaired by him and Minister Douglas Devananda, who I know is committed to devolution. He and S Tavarasa have spent hours to promote means to devolve power when I was Secretary PCs.

Minister Devananda and CM Wigneswaran are two different personalities. Minister Devananda’s political character evolved from terror group activity from which he withdrew and joined the mainstream politics. CM Wigneswaran’s character has Hindu religious components (fortunately not Hindutva concepts!), legal background, political involvement and distanced relationships to civil administration due to his previous profession. This incompatibility would have caused unmatchable responses.

However, if the CM is to replace the Governor as told by Minister Devananda it may not be the best justification why the CM should attend the DCC meeting. CM should attend to involve in the planning, organizing, direction, staffing, reviewing, monitoring and budgeting functions of development administration in the province/ districts. If he does not attend he will compromise his authority as CM.

I remember when I was Government Agent 35 years back, the parliamentarians and Ministers sat under my chairmanship at the DCC. This was a time academics said that the abbreviation GA stood for ‘Government Agent’ and ‘God Almighty’ both! This status was systematically encroached by politicians. There are no more “God Almighty” “GAs”. I must say that due to this ‘demotion’ no GA refused to attend the DCC Meetings!

I recommend and fervently hope that CM Wigneswaran will co-chair the next DCC Meeting and Minister Devananda will also consider him to be the co-chair and not the chair! There may be some who think ignoring CM Wigneswaran could give an upper hand to the government. Contrarily, if this happens the northern public may conclude that their expectations are blasted within the available constitutional provisions and their representatives are powerless due to majoritarianism. It will drag them elsewhere they should not proceed.

Conclusion

It is crystal clear that the Governor has large executive power delegated by the President. The CM has the democratic power delegated by the People. While these work satisfactory where political homogeneity is present, it is dissimilar in the North where political homogeneity was unattainable. Thus “Who is the King?” has become a sub-conscious competition.

The experiences mentioned above show that the Constitution, PC Act and court rulings could assist in dealing with grave issues, but constructive and sane dialogue has a larger role to play, as lack of dialogue and weakened Rule of Law were and will be the cause for conflict.

Additionally, if it is the difference of personalities that matter for lacking cooperation and integration there is one simple advice that could be shared. It is to say both the Governors and CMs and their Councilors should move down one step from the pedestals on which they are, shed rhetorically imbibed greatnesses and act positively to serve the people. Best is to leave the hawks from both sides of the divide out of the equation and keep away the bureaucrats from these internal battles. The role of bureaucrats is for proactive pacification and not to disturb them for personal gain.

For the NPC issues I may say like in Victor Ratnayaka’s song “අපි ඔක්කොම රජවරු ඔක්කොම වැසියෝ තුන් සිංහලයම නෑදෑයෝ” [“We all are kings, we all are citizens, we in the tri-regions (Ruhunu, Maaya and Pihiti) are relatives”], let everyone toil to ensure unity, reconciliation and development to rise as one Nation. Let the Governors and CMs make the whole Nation Kings, not leaving it to be their monopoly for kingship.