{"id":44290,"date":"2015-05-28T21:00:21","date_gmt":"2015-05-29T03:00:21","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=44290"},"modified":"2015-05-28T13:38:54","modified_gmt":"2015-05-28T20:38:54","slug":"can-a-foreign-national-lawfully-perform-cb-governors-duties","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2015\/05\/28\/can-a-foreign-national-lawfully-perform-cb-governors-duties\/","title":{"rendered":"Can a foreign national lawfully perform CB Governor\u2019s duties?"},"content":{"rendered":"

by Professor G.L. Peiris \u00a0Courtesy Island<\/em><\/span><\/h2>\n

The Central Bank is an institution which controls the commanding heights of Sri Lanka\u2019s economy.<\/p>\n

The Governor of the Central Bank is the Chairman of the Monetary Board and Chief Executive Officer of the Central Bank. He is, ex-officio, the principal representative of the Bank and the Monetary Board “and has the authority to represent the Central Bank and the Monetary Board in all its relations with other persons, including the Government and any body of persons, corporate or unincorporate, whether public or private, domestic, foreign or international- and to represent the Central Bank and the Board in any legal proceedings” (section 20 of the Monetary Law). The Governor has crucial functions to perform, inter alia, with regard to deciding and changing the par value of the rupee, the determination of monetary policy, the preservation of monetary stability, the management of the country\u2019s foreign reserves and determination of the rates at which foreign exchange is bought and sold by the Central Bank.<\/p>\n

Nevertheless, almost defying belief, the current Governor of the Central Bank is a person who has taken the following oath\/affirmation prescribed by the Second Schedule to the Constitution of Singapore: “I absolutely and entirely renounce all loyalty to any foreign sovereign or State or country, and I do solemnly swear (or affirm) that I will be faithful and bear true allegiance to the Republic of Singapore”.<\/p>\n

It is my strong contention that the appointment of a person who has taken an oath or affirmation to a foreign State in these terms, to the Office of Governor of the Central Bank of Sri Lanka, is not just morally or ethically wrong and indeed preposterous, but that the appointment is illegal because he cannot lawfully perform the functions of his Office.<\/p>\n

An examination of the constitutional and statutory provisions in Sri Lanka, having a bearing on this issue, supports this proposition amply.<\/p>\n

Section 12(1) of Sri Lanka\u2019s Monetary Law declares that “The Governor of the Central Bank shall be appointed by the President on the recommendation of the Minister in charge of the subject of Finance”.<\/p>\n

There is further provision that the Governor is entitled to a salary fixed by the President. This is the effect of provision contained in Section 12(3) of the Monetary Law to the effect that “The Governor shall receive such salary as may be fixed by the President on the recommendation of the Minister in charge of the subject of Finance.”<\/p>\n

These two provisions, read together, have a vital bearing on the definition of the term “public officer” set out in the Constitution of Sri Lanka.<\/p>\n

Article 170 of the Constitution states that “public officer” means a person who holds any paid office under the Republic other than a judicial officer, but does not include the President, the Prime Minister, the Speaker, a Minister, a Deputy Minister, a Member of Parliament, a Member of the Constitutional Council, a member of any of twelve Commissions spelt out in the Article, the Secretary-General of Parliament, a member of his staff, or the Auditor-General.<\/p>\n

Since the Governor does not fall within the ambit of any of the exceptions stipulated in this Article, it is abundantly clear that the Governor of the Central Bank is a public officer within the meaning of the Constitution.<\/p>\n

Article 61D of the Constitution provides that “A person appointed to any office referred to in this Chapter shall not enter upon the duties of his office until he takes and subscribes the oath or makes and subscribes the affirmation set out in the Fourth Schedule to the Constitution.”<\/p>\n

The Chapter in which Article 61D appears, has its setting in Chapter IX dealing with the public service. Consequently, all public officers (that is to say, officers of the Republic, other than those excluded by the definition contained in Article 170) are expressly prohibited from assuming office unless they have taken the oath or made the affirmation set out in the Fourth Schedule.<\/p>\n

The gist of this oath or affirmation consists of the assertion by the affirmant\/declarant who has an imperative duty to declare that he will be faithful to the Republic of Sri Lanka and that he will uphold and defend the Constitution of the Republic.<\/p>\n

It is obvious that a citizen of any other country cannot be faithful to the Republic of Sri Lanka if there is a conflict between the interests of the country to which he has sworn or affirmed allegiance, and the interests of the Republic of Sri Lanka, especially when he has renounced all loyalty to Sri Lanka.<\/p>\n

The resulting position, then, is crystal clear. Even if Mr. Mahendran has taken the oath prescribed in the Fourth Schedule, such an oath will have no semblance of validity because he is a citizen of another country and, indeed, for good measure, has “absolutely and entirely renounced all loyalty” to Sri Lanka. It would, therefore, be patently absurd for Mr. Mahendran, to purport to swear his allegiance to the Republic of Sri Lanka. He cannot renounce and affirm at the same time. On the other hand, if he has not taken the oath prescribed in the Fourth Schedule, a fortiori, he is precluded from discharging the responsibilities of the Office of Governor for the reason that he has failed to fulfil a threshold requirement.<\/p>\n

In either case, then, Mr. Mahendran cannot validly and lawfully embark upon the duties attaching to the Office of Governor of the Central Bank because of his failure to comply with a mandatory condition precedent.<\/p>\n

There is another, quite independent, reason why Mr. Mahendran cannot perform his duties with any degree of acceptance in the eyes of the law.<\/p>\n

Even if its is contended (implausibly, and without any justification) that the Governor of the Central Bank is not a public officer within the meaning of the Constitution, he is nevertheless obliged to take the oath prescribed in the Fourth Schedule, in his capacity as a member of the Monetary Board.<\/p>\n

Article 165 (1) of the Constitution requires every person in the service of every public corporation to make and subscribe the oath referred to in the Fourth Schedule.<\/p>\n

This Article is reproduced in extenso because of its importance: “Every public officer, judicial officer and every other person as is required by the Constitution to take an oath or make an affirmation on entering upon the duties of his office, every holder of an office required under the existing law to take an official oath or affirmation and every person in the service of every local authority and of every public corporation shall take and subscribe the oath or make and subscribe the affirmation set out in the Fourth Schedule. Any such public officer, judicial officer, person or holder of an office failing to take and subscribe such oath or make and subscribe such affirmation after the commencement of the Constitution on or before such date as may be prescribed by the Prime Minister by Order published in the Gazette shall cease to be in service or hold office.”<\/p>\n

The term “public corporation” receives explicit definition in the Constitution. Article 170 declares that “public corporation” means any corporation, board or other body which was or is established by or under any written law other than the Companies Ordinance, with funds or capital wholly or partly provided by the Government by way of grant, loan or otherwise.<\/p>\n

The Governor of the Central Bank is in the service of the Monetary Board of the Central Bank, which is a body corporate with perpetual succession and a common seal, which can sue and be sued in its corporate name. This is the plain effect of Section 9(1) of the Monetary Law.<\/p>\n

Section 6 of the Monetary Law declares conclusively that the Central Bank was established with funds appropriated to the Bank from surplus assets of the Board of Commissioners of Currency. It is, therefore, beyond any shadow of doubt that the Central Bank was established with funds of the Government of Sri Lanka. In these circumstances, the Monetary Board is manifestly a public corporation within the meaning of the Constitution.<\/p>\n

Accordingly, in terms of Article 165, the Governor of the Central Bank who is in the service of the Monetary Board, is required to take and subscribe the oath set out in the Fourth Schedule.<\/p>\n

Moreover, Article 157A(7) of the Constitution requires every person who has to take the oath prescribed in the Fourth Schedule to also take the oath prescribed in the Seventh Schedule. Mr. Mahendran, therefore, is compulsorily required to take both oaths.<\/p>\n

It is, therefore, irrefutable that, both as a public officer and as a member of the Monetary Board, Mr. Mahendran is required to take the oath under the Fourth Schedule before he can lawfully embark on the duties of the Office of Governor of the Central Bank. However, since he is a citizen of Singapore, he cannot validly take this oath or make the affirmation in the terms prescribed by Sri Lanka\u2019s laws, inasmuch as, under the Second Schedule to the Constitution of Singapore, he has “absolutely and entirely renounced all loyalty” to Sri Lanka and he has, therefore, voluntarily and deliberately placed himself in a position in which he is precluded from upholding the Constitution of Sri Lanka.<\/p>\n","protected":false},"excerpt":{"rendered":"

by Professor G.L. Peiris \u00a0Courtesy Island The Central Bank is an institution which controls the commanding heights of Sri Lanka\u2019s economy. The Governor of the Central Bank is the Chairman of the Monetary Board and Chief Executive Officer of the Central Bank. He is, ex-officio, the principal representative of the Bank and the Monetary Board […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-44290","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/44290","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=44290"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/44290\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=44290"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=44290"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=44290"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}