N Sathiya Moorthy 7 July 2018
Through a least-publicised interim order with constitutional consequences otherwise, the Court of Appeal has stayed Northern Province Chief Minister C V Wigneswaran’s unilateral removal of Fisheries and Transport Minister P Deniswaran in August last year. According to available media reports, the Bench comprising Justices Kumudini Wickramasinghe and Janaka de Silva has also posted the case for 9 July.
Deniswaran was not the only one to be sacked by Wigneswaran, on perception of ‘corruption charges’. P Ayngaranesan and Kurukularasa also had to go thus, but Deniswaran has been the only one to move the Supreme Court. Another Minister, Dr P Sathiyalingam, who is also from the ruling Tamil National Alliance (TNA) like Wigneswaran and the rest, quit rather than being ‘humiliated’ by the Chief Minister.
Of the four who exited the NPC administration, Sathiyalingam, a medical-doctor working in Government hospitals before entering politics through the TNA in the 2013 NPC polls, was being considered as a possible heir-apparent to Chief Minister Wigneswaran, who in turn was seen as being too keen to exit early on.
There is however no talk of Wigneswaran’s exit, anymore. Instead, he has only indicated his wish and willingness to contest and/or continue as Chief Minister, maybe for another term too, if elected. In the interim, he has already told the Centre that if the NPC were to be dissolved pending delayed elections, as with three other PCs already, the Constitution should be amended for him to continue in office until fresh polls.
Independent of a visible change-of-heart for him to serve the Tamil people longer, Wigneswaran was only underscoring a politico-constitutional aspect, by hinting that any dissolution of the PCs, including the NPC, was unconstitutional. As a retired Justice of the Supreme Court, he should know. However, in this case, he should have known better, too.
Under the Constitution, Provincial Councils can have only five Ministers, including the CM. Now with the Appeals Court ordering interim stay of Deniswaran’s sacking by the Chief Minister, the question arises if the ‘interim stay’ implies that he could technically at the very least continue as a Minister until the either the final verdict of the Judiciary is available – or, at least until the court had clarified this aspect of what looms to be a ‘constitutional impasse’ of some kind.
This is because, with Deniswaran ‘back now’ even if in the interim, there are six ministers in the NPC, against the mandatory upper-limit of five. Consider the possibility of the other two ‘sacked’ NPC Ministers too moving the court in the coming days, and you may have a situation that the Executive and the Legislature (Parliament) had not provided for when enacting the Provincial Councils Act, 1987.
Constitutional dilemma
In his petition challenging the Chief Minister’s decision to remove him as Minister, Deniswaran has reportedly submitted that only Governor Reginald Cooray, and not Chief Minister Wigneswaran, had the power to do so. Leave aside the constitutional provision in this regard and the judicial interpretation of the same, another equally interesting legal question arises out of what has already happened.
The ’constitutional dilemma’, if it is one, pertains to Governor swearing in new Ministers in the place of those that the Chief Minister had ‘sacked’. Does this act of the Governor implies that the Chief Minister’s decision had the Governor’s approval, even if post facto? If none else, at least as a former Justice of the Supreme Court, CM Wigneswaran could be expected to have studied this question before making his political move to sack incumbent ministers.
Then there is the greater political question. The TNA and the rest of the Tamil polity are unanimous in contesting the need for the office of the Governor in the Provinces, his constitutional role and power, all along. They have always wanted more powers for the Provincial Council and the ‘PC administration’. By this, they meant the elected Chief Minister, as against the Governor, nominated by the Centre.
From time to time, there have also been Tamils’ demands for an ‘elected’ Governor as in the US. However, no one has taken the proposition forward, maybe because they too are unsure about the nature of power-sharing that they would want between the Governor and the Chief Minister.
By far, it would seem, the Tamil polity has been conditioned by the ‘Westminster model’, also of the neighbouring Indian kind, where there is still a Governor above the elected Chief Minister, but nominated by the Centre, as the ‘watch-dog’ of the Constitution. As with all other aspects of power-sharing, the devil is in the details. The TNA and the Tamil polity and society do not want to address these questions as squarely as they want answers for the larger question(s) on power-sharing.
Against this, here we now have a ‘sacked’ TNA Minister of the Northern Province who has gone to the court, arguing that the nominated Governor alone has powers to sack the likes of him, and not the Chief Minister, elected by the people. Deniswaran and his political backers in the TNA hierarchy may argue that they had reservations about the gubernatorial office, but as long as it was there, they abided by the constitutional provisions as existing at the time.
Political entanglement
The sub-plot of Deniswaran’s ‘sacking’ may take the TNA to another level of political entanglement, big or small. There are already those in the Tamil polity, both within the TNA and outside, who claim that the leadership is playing ball with the ‘southern Sinhala-Buddhist polity’, sacrificing larger Tamil interests, for (non-existent) power and pelf. They may have one more argument for their ‘whisper campaigns’, if not for public pronouncements.
The reverse arguments may sound even more interesting and ironical. If Deniswaran’s submissions are shot down by the higher judiciary ultimately, would it mean that a Tamil Chief Minister had effectively usurped the powers of the ‘Sinhala-nominated’ Governor? Likewise, if the courts uphold Deniswaran’s argument, would it then be used to argue that the Tamils could not be trusted with ‘more powers’ than the limited ones from within a broader 13-A, much of whose operative provisions attending on political-devolution remain only on paper – or, even less?
Whatever the final outcome of the court-battle, Justice Wigneswaran may now be seen as being on the other side of the Bench – not even at the Bar, but in the Box, being asked by the courts to explain his conduct as Chief Minister. Some embarrassing moments these for the former Supreme Court Justice, who is being respected in his Tamil community precisely for this, and not any more for his political acumen or administrative capabilities.
If Wigneswaran has any of either or both, neither political acumen, nor his administrative talent has stood out as the Northern PC completes its maiden five-year term under his guardianship and stewardship. The fact is that with Wigneswaran at the helm of the NPC, the TNA has wasted a golden opportunity to serve their people even with the ‘limited powers’ at their disposal. The way the Chief Minister has taken on his party leadership, and not the Centre or the ‘majority’ Sinhala polity in the country, at least a section of the Tamils too may start wondering what would happen to their ‘larger cause’ if their political leaderships enjoyed greater constitutional powers?
Constitutionally-mandated
The question then arises: Whether it is Wigneswaran or a lesser mortal (which could still be worse), will the Tamils get a ‘constitutionally-mandated’ LTTE boss of the Prabhakaran kind, who in turn had done more harm to the Tamils than good, all in the name of fighting for their ‘larger cause’? In turn, would the alleged ‘moderation’ of the kind for which the Wigneswaran camp and those before him have had riled the TNA leadership of the Leader of the Opposition, R Sampanthan, make more sense for not only obtaining more powers for the Tamil Province, including a ‘re-merged’ Province of North-East – and also enjoy them, too?
After all, 13-A has given more powers to the Tamils and other Provinces too than was there before the time, but successive Governments at the Centre have only curtailed the use and usage of those constitutional provisions. So what use of obtaining powers by holding the gun to the head if you cannot enjoy the same the very next day on?
The irony with 13-A was that when A Varadaraja Perumal as the ‘elected’ Chief Minister, that too, of the ‘merged’ North-East, demanded the full implementation of 13-A, the Centre sacked him. The LTTE and their majority-Tamil supporters celebrated it, even while fighting for the very same powers.
In a way, the LTTE and their socio-political backers in the Tamil community were keen not on powers per se, but about who should get it for them, and how (by shedding more blood than already, as it turned out later on?). With Perumal’s exit was also gone the Tamil dreams of the North-East merger, too, what with the successor Rajapaksa Government fast-tracking the 2006 Supreme Court judgment for ‘de-merger’.
The irony then and since has been, fighting and fearing the LTTE kind of ‘militant JVP’ revival in the rest of the country, the ‘southern Sinhala’ polity, even at the PC-level have never ever demanded 13-A, full or even half, as long as their own election or selection as Ministers and/or Councillors. Worse still, through his five years in office, Justice Wigneswaran as the Tamil Chief Minister of the Tamil Northern Province never ever moved the Supreme Court for a full implementation of 13-A.
If anything, like all other Tamil leaders without his kind of judicial background and legislative back-up of the PC kind, Wigneswaran has also continued to shout for more powers for the Tamils from roof-tops, and not where it would have mattered more – even if it were to ‘expose’ the ‘great Sinhala conspiracy’. It is another matter that even when the party was together and behind Chief Minister Wigneswaran, none of them either felt the need to do so – or, encourage him to do it!
http://www.thesundayleader.lk/2018/07/07/now-wiggy-in-the-box/