Affidavits and crossovers in Provincial Councils

In recent times a political party or group that has been elected by the free choice of the people are changed overnight with a few crossovers by way of tendering affidavits. The correct legal position is as follows;

President, Bar Association of Sri Lanka, Geoffrey Alagaratnam

1. According to section 3 of the Constitution of Sri Lanka sovereignty of the republic lies with the people and it is in alienable. Therefore that sovereignty cannot be transferred to anybody which includes the elected members as well as the Governor.

This is specially so when the members who submit affidavits are acting in contravention of the verdict and wishes of the people who elected them.

In an instance where the people have elected members of different political parties and the Chief Minister and the Board of Ministers have been appointed according to the wishes of the people and according to the membership of the political party that has secured the largest number of seats in the council. There is no provision in the constitution or in the 13th amendment to alter this position by affidavit or otherwise.

President's Counsel and current President of the BASL G. Alagaratnam, in a question and answer interview states as follows:

"After all, sovereignty according Sri Lanka's Constitution is unquestionably vested in the people of this country. The BASL has a twin function, it needs to look after the welfare of the Bar and also address issues of serious public importance."

This undesirable habit of elected representatives betraying voters who elected them and still retaining their seats in the Provincial Council is a matter of public importance and it should be given the immediate attention of not only the BASL but also other professional bodies such as the OPA, GMOA and powerful trade unions.

There must be legislation that wherever party affiliation is changed the individual automatically loses his seat and the next candidate on the list of that particular political party should be nominated by the Elections Commissioner subject of course to the right of the effected individual to canvass the decision of Election Commissioner in the appropriate court.

Section 154 F - Sub section 4 and the proviso to sub section 4.

It is also relevant to note that subsection 5 has already been complied with namely that after the election of the Provincial Council the Chief Minister was appointed by the Governor and on his advice the Board of Ministers were also appointed. In my opinion the furnishing of affidavits does not indicate that any particular member commands the majority of the council. Further, there is no section in the 13th amendment or in the constitution which empowers the Governor to sack already existing members and appointed others instead.

Section 4 of the 13th Amendment states as follows:

At the conclusion of the Provincial Council the Governor acting under this section completes the appointment of the Chief Minister and the Board of Ministers. That action by the Governor complies with section 4 of the 13th Amendment.

In any event section 154 F of the 13th Amendment readers as follows:

- The governor shall appoint as the 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 of the Council, as chief Minister.

- The 13th Amendment or the constitution of Sri Lanka does not empower already existing Ministers to be sacked and others to be appointed instead.

Therefore, in terms of the Proviso to Article 154 F (4), it is mandatory upon the Governor to appoint the leader of such party as the Chief Minister.

The direction granted to the Governor of a Province by Article 154 F (4) is limited to situations where a single party does not have more than one half of the members of the council.

The franchise of the people

The majority of the UPFA over its nearest rival namely the UNP was in the region of 75,000 votes. Today the position is that the leader of the UNP has been appointed as the Chief Minister and names submitted by him have been appointed as ministers with the automatic effect of sacking the Chief Minister and the existing board of the Ministers. Obviously there has been a gross violation of the views of the people who by exercising their franchise elected representatives as indicated above and the leader of the UPFA was appointed the Chief Minister and the names submitted by him as the Board of Ministers. This exercise was carried out with the connivance of the governor on a public holiday without notice to any of the parties concerned. This was followed by the same attempt made to grab power in the Central Provincial Council but due to the very courageous and correct stand taken by Governor of the Central province these attempts made have miserably failed.

In this era of good governance and respecting the wishes of the people these methods should not be tolerated at all. As a matter of fact in addition to the professional bodies a huge responsibility rest on the media and on civil societies to uphold the democratic rights of the people.

Section 154 F-1 of the 13th Amendment states, that the Governor shall in the exercise of his functions do so on the advice of the Chief Minister. However, "The Governor shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.'

Therefore, whenever the advice of the Chief Minister is in contravention of the imperative provisions of the constitution the Governor is not bound to act on his advice.

Section 154 sub section 2 & 3

(2) if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this constitution required to set in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question in any court on the ground that he ought to or not have acted on his discretion.

The exercise of the Governor's discretion shall be on the President's discretion.

(3) The question whether any, and if so what, advice was tendered by the Ministers to the Governor shall not be inquired into in any court.

Therefore, where a Governor makes a decision in his discretion regarding the appointment of a Chief Minister and the Board of Ministers, that position cannot be altered by affidavits and the Governor's discretion cannot be challenged in any court of law.

As a great writer of Constitutional Law once said, "what cannot be held by authority must be conceded with grace."

The writer is the Governor of the Sabaragamuwa Province.