Dharshan Weerasekera

This is my fourth and hopefully final essay on the problems with the 19^th Amendment.  In this essay I focus on the mysterious entity designated the Council of State,” which the amendment intends to insert as Chapter 7B of the Constitution.  In my view, this entity is dangerous to the Republic in three ways, and I’ll briefly explain what those are.

First, it is necessary to understand the composition and functions of this Council of State.”  The composition of the Council is set out in Articles 41J(2)(a), (b), (c), and 41J (3), while the functions are set out in Articles 41M(1)(a), (b), (c) and (d) of the amendment.  In gist, they are as follows:

Composition:

The Council is to have 36 Seats, 26 of which shall be apportioned amongst the recognized political parties and independent groups represented in Parliament,” and the remainder to be occupied by the Chief Ministers of the 9 Provinces.  The sole qualification to be a member is that the person has to be someone with integrity, who has achieved distinction in their respective profession or vocation.”  (See, Articles 41J(2)(a),(b),(c) and 41J(3))

Functions:

Article 41M(1) says that the function of the Council is to make recommendations to the President and the Cabinet on four matters, as follows:

1. Implementation of the matters contained in the Statement of Government Policy.

2. Adhering to the principle of Good Governance by all organs of the Government.

3. All Bills immediately upon their publication in the Gazette.

4. All such proposals for legislation that may be referred to it for consideration by the Cabinet.

Analysis:

From the fact that the function of the Council is to make recommendations to the President and the Cabinet” it is clear the Council is to function as a Policy Unit, or Think Tank” for the Government, except this one is Constitutionally recognized, and placed at the very heart of the Government.  I see three problems with this, as follows.

First, to go back to the composition of the Council, note that 26 Seats in the Council are to be apportioned amongst the recognized political parties and independent groups represented in Parliament.”  Meanwhile, the only qualification to be a member of the Council is that the person has to be someone who has integrity, and who has reached a position of distinction” in his or her profession or vocation.

My concern is with the phrase recognized political particles and independent groups represented in Parliament.”  (41J(3))  What is meant by recognized political parties” is clear enough:  it refers to political parties with Constitutions duly filed in the Elections Commissioner’s office.  But what is meant by independent groups represented in Parliament?”  In what sense are independent groups” represented in Parliament?

The only way for a group to be represented in Parliament is through a political party.  So, the question is this:  Does 41J(3) open the door for persons to be appointed to the Council who are not necessarily members of recognized political parties in Sri Lanka, but who can claim that their interests are represented by political parties represented in Parliament?”

For instance, can the Global Tamil Forum (GTF), the Transnational Government of Tamil Eelam (TGTE), or some other special-interest group or lobby, get a political party in Parliament to sponsor one of their agents as a candidate for appointment to the Council, by saying that they consider the sponsoring-party as representing their interests in Parliament?[1]  In the way Article 41J(3) is formulated, I believe it leaves the above possibility open, which obviously could lead to dire consequences.

The second problem I see with the Council of State” has to do with the Chief Ministers of the nine provinces being among its members.  The 13^th Amendment makes a clear distinction between the responsibilities of the central government and the responsibilities of the provincial government, and sets them out in the Reserved List and the Provincial List respectively.  (The Concurrent List sets out matters that both the central government and provincial governments can handle, but it is not pertinent to the present discussion.)

The point is that, the Constitution as it stands at present makes clear that there are certain tasks that are to be handled by the central government and not the provincial governments.  The Chief Minister of a province, meanwhile, is a person elected by the residents of each Province to oversee matters that pertain most immediately to the particular interests and needs his or her province, which is to say, the Provincial and Concurrent Lists.

What the Council of State does is to put a provincial official in a position to influence national policy, which is to say, matters covered by the Reserved List.  In my view, this violates both the spirit as well as the letter of the 13^th Amendment, as originally envisioned.  If the residents of a province want to elect someone to address issues falling under the Reserved List, they have the option of electing a Member of Parliament.

In practice, if the 19^th Amendment were adopted, it would lead to a situation where a person such as Mr. Wigneswaran, an avowed Eelamist, would be able to agitate for his cause” not only at the Northern Provincial Council, but at very heart of the Government, through an institution Constitutionally authorized and empowered to make recommendations to the President and Cabinet on national issues.

(I take it as self-evident that a man who signs a letter that says successive Sri Lankan Governments have committed Genocide against Tamils in this country, is not interested in living in an integrated society with the Sinhalese,[2] but is ultimately interested in affecting a separation between the two people, which is to say, achieving Eelam”)

If we combine the matters discussed in the two preceding paragraphs with the possibility that groups such as GTF, TGTE, and others, might succeed in infiltrating a few of their agents into the Council of State, the consequences to the State are truly nightmarish.

The third problem I see with the Council of State is that it appears the Council’s members are beyond the reach of any law as far as their official acts are concerned.

Since the function of the Council is to make recommendations to the President and the Cabinet, technically, the decision whether or not to accept the recommendations is with the two aforesaid parties.  So, the persons making recommendations would not be susceptible, say, to actions in Administrative Law, in the event their recommendations turn out to be bad in law, irrational, displays elements of mala fides, and so on.

In contrast, an ordinary Think Tank” operating on an NGO license is susceptible to a host of legal actions.  For instance, if it is found out that persons attached to such an NGO are promoting agendas harmful to the State, they can be prosecuted, and punished.  The Council of State, to repeat, since it draws its mandate from the Constitution, will not be susceptible to such actions.

What does the above mean?  It means one thing.  Once the members of the Council of State are appointed, unless the Prime Minister and Opposition Leader, with the approval of the Constitutional Council, remove them, there is no way to hold them accountable if their recommendations end up causing harm.

Again, the practical effect of this is—if groups such as GTF, TGTE and others manage to insert their agents into the Council, and a person such as Mr. Wigneswaran is also added to the mix—these persons will be free to undermine the foundations of the State to their hearts’ content, and ordinary citizens will not be able to do anything about it.

To summarize, the Council of State, as formulated in the proposed amendment, leaves open the possibility that, through it, various persons and parties with agendas antithetical to the interests of the State, will gain direct and unencumbered access to the highest policy-making circles in the State.  If that happens, the State will obviously be in mortal danger.  Hence, for this reason also, the proposed 19^th Amendment must be rejected.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of, The UN’s Relentless Pursuit of Sri Lanka, and the need for effective counter-measures (Stamford Lake, 2013)   

[1] It is true the Constitutional Council has to endorse all appointments to the Council of State.  But, the only qualification for membership is that the person has to be eminent in his or her profession or vocation.  What if the GTF, TGTE or other Diaspora group, working through a political party, introduces a candidate who cannot be identified easily as a fanatic?  For instance, what if the GTF or TGTE get hold of a candidate who is recognized as eminent in his or her profession or vocation, is a hardcore supporter of the Eelam cause, but is adept at hiding the latter fact behind a veneer of affability, civility, and professional courtesy?  In such a case, how would the Constitutional Council be able to detect, and reject the candidate?  For the CC to reject the candidate out of hand would be to risk being accused of racism, or discrimination.  So, they will most probably endorse the appointment.

[2] Why would he, if the Sinhalese are committing genocide against his people?