Colombo’s new proposals said not valid in law

[TamilNet, Thursday, 22 May 2003, 06:40 GMT]
Institutional arrangements suggested by Colombo last week in response to concerns raised by the Liberation Tigers about establishing a legally viable and operable system to utilise donor aid for development and reconstruction of the war ravaged northeast are not valid in Sri Lankan law, legal experts said Thursday. “An Interim administrative mechanism similar to the one proposed under the Indo Lanka Agreement can be set up by the President alone; and only while Emergency Regulations are in force”, said Mr. V. T Thamilmaran, senior lecturer in law in the University of Colombo.

"But even such a body cannot jointly administer and utilise funds to rebuild the northeast, as it would be in contravention of the provisions of 13th amendment to Sri Lanka’s constitution", he added.

In a letter to the Norwegian Deputy Foreign Minister Wednesday, the Liberation Tigers, while questioning the legality of the alternative institutional mechanisms, suggested an “interim administrative mechanism which could supersede the multiplicity of existing structures, which work at cross-purposes and impede the efficient utilisation of development funds” to be set up along the lines of the one envisaged under the Indo Lanka Agreement of 1987.

Under Sri Lanka’s constitution there is no provision or legal loophole whereby an effective interim administrative body can be established and be made operable.

Colombo has pointed to this fact when Tamil parties made a demand for such a body in 1994 and 1996.

However, in a set of proposals made jointly by the Indian and Sri Lankan Governments prior to signing of the Indo Lanka Agreement (known as the Bangalore Proposals) provision was made (under paragraphs 10.1 and 10.2) for the President to devolve his/her executive power on an interim administration for the interim period with a view to making it an effective mechanism responsible for development and reconstruction of the northeast.

The matter was taken up under the Indo Lanka Accord too, providing for a dominant role for the Liberation Tigers in the proposed interim administration. The institution did not materialise and hence face the litmus test of it legality and operability as Colombo dragged its feet and as events on the military front precipitated war between the Indian army and the Liberation Tigers.

Mr. Thamilmaran said that according to the provisions of Sri Lanka’s constitution the President can devolve her/his executive power to an authority or body set up by her/him only under Emergency Regulations.

The Emergency, which has to be approved by Parliament every month, lapsed in late 2001 when President Chandrika Kumaratunga’s People Alliance lost it majority after its chief coalition partner, the Sri Lanka Muslim Congress crossed over to the opposition.

“Firstly, given the current, irreparably tattered state of cohabitation between President and Prime Minister one cannot even remotely contemplate any devolution of executive power to an interim administrative mechanism for the northeast. Secondly, the Emergency is not in force now and no right thinking person would endorse the re-imposition of its draconian regulations. Thirdly and most importantly, Appendix III to the 13th Amendment very clearly stipulates that all matters connected with Public Debt, Foreign loans, government funds, the Central Bank, Audit of the accounts of the GOSL and of the Provinces fall within the purview of the Central government. Therefore an interim body as envisaged under the Indo Lanka Agreement cannot ever be a viable mechanism for jointly utilising and administering funds for the development and reconstruction of the northeast”, Mr. Thamilmaran said.

The North East Development and Reconstruction Council (NE DRC) that was proposed by Colombo last week as an expanded version of Sub-committee on Immediate Humanitarian and Rehabilitation Needs (SIRHN) is not legally viable under the provisions of the constitution for the same constitutional reasons for which the earlier Joint Task Force concept was abandoned.

Article 76.1 of the Constitution expressly prohibits the Parliament from devolving its legislative authority, including the right to handle the country’s finances, to any other body. This provision vests on the island’s Sinhala majority the sole right to control the finances and stipulates that the right is inalienable.

Giving further strength to 76.1, Articles 148-54 of the Constitution clearly prohibits any institution other than Parliament or one authorised by it from getting involved directly in disbursing or handling public funds.

Article 154 of the Constitution and section 13 of the Finance Act No. 38 of 1971 describe the duties and functions of the Auditor-General. The Article imposes a duty on him to audit the accounts of all public institutions including that of the Prime Minister’s Office.

“In this context can the auditor general be answerable to Parliament if the proposed NE DRC conducts its own auditing with his mere concurrence? No. It again raises the question of the proposed body’s legality in another form,” Mr. Thamilmaran said.

A retired senior Treasury official in Colombo when asked to explain the legal nuts and bolts of setting up and running an administrative mechanism as envisaged in several rounds of peace talks said: “Parliament by legislation (Finance Act), the Public Accounts Committee (established under the Standing Orders of Parliament) by its reports, and the Treasury by its minutes have laid down a long series of complicated rules (and practices as well) to secure Parliament’s (i.e. the Sinhala majority’s) sole control over the country’s finances”.

“In the final analysis, there is no way one can hope to circumvent this complex web of rules and practices in granting the right to a body to enable Colombo and the Liberation Tigers to jointly utilise and administer funds for the development and reconstruction of the northeast”, the retired senior treasury official said.

Under Sri Lanka’s Finance Act, expenditure over a certain amount of public money requires the approval of the cabinet. The President of the Republic will chair the meetings of the cabinet.

Also, the administrative mechanism proposed by Colombo last week has to necessarily recognise the mandate of the External Resources Department as the principal and co- coordinating agency of the Sri Lankan government for foreign loans and grants. Provisions of the Constitution, particularly Appendix III of the 13th Amendment leave no room for any doubt on this matter.

“In this context, the LTTE would be a partner in negotiating loans and grants from foreign governments and donor agencies to bring in the money into the country’s coffers. But the partnership would end there. When it comes to spending the monies brought in thus, the LTTE cannot have a say because the involvement of the cabinet in this matter is inevitable in accordance with statutory requirements. As far as the loans and grants are concerned, only the Dept. of external resources can enter into contractual obligations on behalf of the government. While the LTTE would also be negotiating for loans and grants as an equal partner in the proposed body, the signing of the contracts would be the business of the Sri Lankan government alone” Mr. Thamilmaran said.

The SIRHN and the Joint Task Force, which was proposed by earlier as a mechanism for the joint utilisation and administration of funds, were held legally invalid and hence inoperable along the lines envisaged at the peace negotiations for the same constitutional reasons.

“In these circumstances, the North East Development and Reconstruction Council (NE DRC) as envisaged in the draft sent by Colombo to the LTTE through Norway’s Deputy Foreign Minister has to necessarily end up as one more farce in the repertoire of Sinhala legal experts. The proposed NE DRC, shorn of its legalese frills is a sham – nothing but a version of the Joint Task Force with deceptive window dressings”, said Mr. Selvam Adaikalanathan, commenting on the insurmountable constitutional snags which dog Tamil demands for equitable utilization of the island’s resources.

The new draft sent by Colombo to the LTTE on 17 May offers an expanded mechanism of SIHRN transforming it into three-layered structure consisting of a policy board, project committee and an administrative body, deriving its sole authority from the Prime Minister’s office.

“The only way to vest any semblance of legality on the proposed NE DRC is to constitute it as a statutory board or authority by an act of Parliament. But Article 44 of the Constitution very clearly states that the functions of such bodies shall be assigned by the President and that she has the power to take over these functions with or without consulting the Prime Minister. The fate that befell the National Lotteries Board makes this amply clear”, Mr. Thamilmaran said.

“But above all many legal experts have overlooked the important fact that an administrative mechanism set up specially to handle reconstruction and development of the northeast would be held illegal by the Supreme Court because the province is under a Governor’s rule. The Governor is answerable to the President. Negating or undermining his authority by setting up a separate administrative mechanism for the province would tantamount to eroding the President’s executive power, which the Supreme Court held as inalienable in its judgement rejecting the 19th Amendment to the Constitution brought by Prime Minister Ranil Wicremesinghe’s government”, he pointed out.

“Also other provinces might object to such a mechanism”, he added.

Changing the complex legalities and constitutional provisions which ensure Sri Lanka’s Sinhala majority the sole, undisputable grip over the country’s finances is well nigh impossible.

To change these provisions, a ruling party has to ultimately seek the support of 2/3 of all the members of Sri Lanka’s Parliament and the approval of the people at a referendum. Under the island’s electoral system, no party can come to power with a 2/3 majority.

The dynamic of the two party system which defines the Sinhala polity has been historically such that there is no room for a government in Colombo and its opposition to come together for securing the 2/3 majority required to repeal or amend the constitution.