Wednesday, October 2, 2013

Will Wigneswaran defy the constitution (unedited)

By Nalin De Silva

C V Wigneswaran is yet to be appointed as the Chief Minister of the Northern Province. The constitution is very clear on the appointment of chief ministers and the other ministers of provincial councils. Article 154F (4) and (5) are reproduced below.  
(4) The Governor shall appoint as Chief Minister, the member of the Provincial Council constituted for that Province, who, in his opinion, is best able to command the support of a majority of the members of that Council: Provided that where more than one-half of the members elected to a Provincial Council are members of one political party, the Governor shall appoint the leader of that political party in the Council, as Chief Minister.
(5) The Governor shall, on the advice of the Chief Minister, appoint from among the members of the Provincial Council constituted for that Province, the other Ministers.



Wigneswaran, I presume a Tamil, had been a Judge of the Supreme Court, in a country where it is said that Tamils are discriminated, and should be familiar with the supreme law of the country and cannot continue to ask for the removal of the present governor for ever. He has to be appointed by the present governor as the Chief Minister unless he doesn’t want to function in that capacity. He has no alternative but to accept the letter of appointment as the Chief Minister issued by the present governor, and having accepted the appointment there should not be any obstacle to take his oaths before the selfsame governor. The oath as specified in the fourth schedule has to be taken by the Chief Minister and the other ministers according to Article 154F (7), and need not be taken before the governor, but if the appointment made by the governor is accepted why make a fuss about taking the oath before him claiming that he was in the Armed Forces. The present governor was in the armed forces but now he acts in a different capacity as the governor, just as much Wigneswaran was a judge of the Supreme Court but if he accepts the  appointment by the governor would be functioning as the Chief Minister representing the Ilankai Thamil Arasu Kadchi. They are two different roles and I would not question the judgments given by the former judge merely because he is now representing a political party. In any event the appointment and removal of governors are also specified in the constitution and no one especially a former judge of the Supreme Court can go anywhere else, Geneva or Timbuktu, invoking some so called international jury to act against the law of the country. The relevant articles are as follows:
154B    (2) The Governor shall be appointed by the President by warrant under his hand, and shall hold office, in accordance with Article 4(b), during the pleasure of the President.
(3) The Governor may, by writing addressed to the President, resign his office.
(4) (a) The Provincial Council may, subject to sub-paragraph (b) present an address to the President advising the removal of the Governor on the ground that the Governor-
(i) has intentionally violated the provisions of the Constitution;
(ii) is guilty of misconduct or corruption involving the abuse of the powers of his office; or
(iii) is guilty of bribery of an offence involving moral turpitude,
if a resolution for the presentation of such address is passed by not less than two-thirds of the whole number of members of the Council (including those not present).

The governor is appointed by the President and holds office during the pleasure of the President and not of the TNA. There is no provision for the Provincial Council to advise the President to remove the governor on the grounds that he had been in the armed forces. In any event the provincial council can only advise the President who is not obliged to follow the advice. The TNA instead of following a confrontational policy should work within the provisions of the constitution. In this regard it is heartening to learn that Wigneswaran and Sumanthiran have met the governor who is the appointee of the President. The TNA that objects to the governor being an officer of the armed forces is not consistent if they are prepared to take the oath before the President who now as then is the commander in chief of the armed forces.
It is said that the TNA wants to go to Geneva to obtain land powers defyin the constitution and the recent judgment by the Supreme Court on land rights. Is Wigneswaran the former judge prepared to go to Geneva against a judgment of the Supreme Court? Theoretically there is nothing to prevent him objecting to judgments of the Supreme Court as he is no longer a Judge. However  he or any gmember of the TNA going to Geneva against the constitution will be judged by vast majority of the Sinhala people in a different perspective. The Supreme Court has interpreted the constitution and it is now clear that the land rights are not with the Provincial Councils according to none other than the thirteenth amendment. Anybody going to Geneva or Timbuktu will be construed to be violating the constitution, and of course the thirteenth amendment. The same holds as far as the police powers are also concerned as there is no mechanism to establish the provincial police divisions and provincial police commissions, stipulated in the thirteenth amendment or anywhere else in the constitution.         
If the TNA is not prepared to abide by the constitution let them say so openly. Let Wigneswaran make a statement to that effect and work with western powers to undermine the constitution and hence the sovereignty of the people. Any party or individual that does not agree with the constitution has two options. One is to work within the constitution and take steps to amend the constitution. I do not agree with the thirteenth amendment with or without land and police powers as I consider it as a so called solution to a non existing ethnic problem, and I write and speak against it within my capabilities. I do not appeal to foreign powers nor do I take up arms to achieve my objectives. The TNA following Prabhakaran or both following the same procedure have opted to change the constitution through foreign intervention with or without arms. At present TNA has not taken up arms but there are voices including that of Wigneswaran that advocate resorting to an armed struggle. This is one of the reasons why the army cannot be removed from Jaffna, and in any event as the President correctly said at the interview with Aljazeera if everybody asks him to remove the forces he would have no place to keep the army, and probably all these people want him to disband the forces so that they can establish whatever they want without any resistance.   

This itself shows that the problem is not ethnic, though mainly Tamils are involved, but a problem of undermining the constitution and the place given to Sinhala Buddhist culture in Sri Lanka, and the sovereignty of the people. The so called ethnic problem in its present form is a creation of the English who used English speaking Tamil Vellalas against the Sinhala people. It was only the Sinhala people who fought against the colonial English commencing with the 1817-18 independence struggle. The struggle continues and Mahinda Rajapkse with all his shortcomings is the present leader of the anti colonial struggle of the Sinhala people and some Muslims. The English interpreted the gradual loss of privileges that the English speaking Tamil Vellalas enjoyed under them, as discrimination against the Tamils and used the Vellala leaders many of whom were Christians, against the independence struggle of the Sinhalas. The ordinary Tamils who are led by their Vellala leaders were misled and there was no anti colonial struggle of the whole nation against the English. The English speaking Tamils as well as their Sinhala counterparts confined their “independence movement” to writing petitions and were dissociated from the anti colonial struggle of the Sinhala people. The English very shrewdly  turned away the ordinary Tamils through the Vellalas at whose hands the Tamil people suffered against the Sinhalas and substituted the anti colonial feelings with anti Sinhala  sentiments. Thus among the Tamils anti colonial struggle was displaced by an anti Sinhala battle. If the TNA leadership is genuinely patriotic they should change these attitudes and join the Sinhala people with the anti colonial struggle. Unfortunately it is not the case and they are still with the English and other western powers working against the Sinhala people to undermine the constitution and the sovereignty of the people. If Wigneswarn goes to Geneva against the constitution and the sovereignty of the people, it will only reinforce the Sinhala perception that Tamil leaders are working with the westerners against the country.       

(An edited version of this article has been published in the Island news paper on the 2nd of October 2013)    

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