IAC: How and where does it fit in?
By Austin Fernando
(Courtesy: The Nation of February 17, 2008)
In the two-page APRC document, provisions were made for an Interim Advisory Council for the North. Many have expressed their expert opinion on the legality and practicality of the provision. Former Defence Secretary Austin Fernando is of the opinion that there are many complications and legal obstacles barring the appointment of such a Council to the North. The following is his opinion on the matter:
APRC proposals are to be implemented through a Governor and Interim Advisory Council (IAC) for the Northern Provincial Council (NPC). Mark the words IAC, NPC and Governor. Even as a non lawyer, I foresee legal barriers which have to be surmounted.
Let me explain some of them:
Firstly, there is no institution called IAC in the Constitution, but this could be overcome under 154L (1) (c), through consequential provisions.
Secondly, a PC is an institution constituted under Article 154A (2) of the 13th Amendment, which says that, “a PC shall be constituted upon the election of the members of such a Council.” There were no elections held after the de-merger and therefore, NPC is simply not legally constituted. If the first PC election is applied, it was under a merged north-east, which is legally and politically redundant now.
Thirdly, according to Article 154B (1), the Governor’s appointment is constitutionally right and he can exercise executive power under Article 154C. Without a constituted PC, when “a one man show” (OMS) prevails, for it to be called “devolution” is a misnomer. This happened for 20-years in the north and east, which is bad enough, but that was at least after constituting a PC. Other PCs have an elected Council and a Governor and therefore, this would be half baked devolution, as it had been for 20-years.
Therefore, appointing a constitutionally unmentioned IAC to a non existent NPC, to aid an OMS Governor, is similar to giving an electricity connection from an unconnected main to a non-existing house! The unconstitutionality of the PC, and the potential manipulations through the Governor, cannot be satisfactory devolution.
Indians have reportedly said that this could be a “good first step.” Surprisingly, the South Block bureaucracy and politicians in New Delhi have considered the non-existent PC and OMS Governor, as adequate for devolution, probably to demand more.
Apart from these, another hurdle will be the appointment of the IAC.
The government derives authority to devolve power from the 13th Amendment. Article 154K requires failure to comply by a PC or a Governor not carrying out directions, for the President to hold that the administration cannot be carried in accordance with the constitutional provisions. PC issue does not arise as a PC is not in existence. I do not think the Governor has not carried out presidential directives, if any. Therefore, Article 154K may not be based for appointment of the IAC.
To implement under Article 154L, the President should receive a report from the Governor. If he receives such report from a Governor, it would be awkward, as the Governor cannot be evaluated in such a short time. My personal knowledge is that he performs more actively than other Governors. Therefore, the President will depend on being “otherwise” satisfied to make a Proclamation under Article 154L (1).
Such Proclamation is to assume “all or any functions of the administration of the Province and, all or any powers vested in or exercisable by the Governor or, anybody or, authority in the Province” [Article 154L (1) (a)] (Note it is not that of the PC but of the Province.), and declare “the powers of the PC shall be exercisable by or under the authority of Parliament”. [Article 154L (1) (b)]. When the President does so, while Article 154L (1) (a) states that he cannot assume the powers of the PC, (i.e. “other than the PC”) there will be legal conflict, as I understand, because we are discussing a non existing quantum. According to Article 154M (1), 154M (1) (a) and (1) (b), the powers that will be declared under Article 154L will belong to a PC and not merely to a Province. Is it not tantamount to conflict between Articles 154L (1) (a) and 154M (1), (1) (a) and (1) (b), because there is no constituted PC?
Anyway, if Parliament takes charge of NPC administration, thereafter, [Article 154L (1) (b)] it would mean centralising than power sharing or devolution. It will be conceptual and ideological checkmating.
Dr. Vigneswaran, in an article in The Nation, compared IAC appointment to Indian experiences. Accordingly, in India, the Governor, not the President, appoints any committee of IAC’s nature. This too, when the constitutional machinery has failed, state government dismissed and legislative assembly dissolved. In the NPC situation, constitutional machinery had been forced to fail by constitutional strangulation. How can a non-existing PC (state government) be dismissed or a non–existing council (Assembly) dissolved, if Indian comparison is accepted?
The constitutional solution proposed by Dr. Vigneswaran is to merge the North and East. Would not the government be checkmated, if Indian legality is to be honoured by merging?
Assuming that the Governor’s appointment is legally valid, irrespective of an OMS, he has to adhere to Article 154B (8) (d) in receiving advice. Accordingly, he shall exercise powers in accordance with the advice of the chief minister, so long as the Board of Ministers commands, in Governor’s opinion, the support of the majority of the PC. There is no PC and hence, no Members or Board of Ministers. Are we constitutionally consistent in considering the IAC members aiding and advising the Governor as equivalent to Chief Minister + PC Ministers, when IAC members are not even elected PC members?
The IAC chairman cannot be the chief minister equivalent, as the latter’s appointment is specifically stated in the Constitution, Article 154F (4). In such an event, how could the Governor accept any advice from a group of presidential appointees in the IAC, other than on the basis of political expediency, not mentioned in the Constitution?
The other legal loop- i.e. Article 154T- empowers the President “to take action or give such directions, not inconsistent with the provisions of the Constitution, as appears to him to be necessary or, expedient for the purpose of giving effect to the provisions of this Chapter or for administrative changes necessary therefore, or for the purpose of removing any difficulties.” The legal issue I highlight is that the APRC propositions fail due to quoted constitutional inconsistency on the constitution of the PC. Therefore, APRC recommendations implemented under Article 154T, could be challenged and be unproductive, other than for OMS Governor’s actions.
I appreciate and endorse government’s interest to share power, if they are pure and genuine. However, I am unconvinced of the practicality, constitutionality and legality of the APRC proposals to impact devolution, because it contradicts the basic practices of devolution and partly fails constitutionally. Do not misunderstand me; I say so not to discredit the President whom I respect or, APRC or, Indians but, because I like to see honourable attempts to solve the national crisis and bring “honourable peace.”
As I lack legal knowledge, I look forward for courts or legal luminaries to do what is right. Finally, I say that, if weak formulation of APRC proposals was to deliberately delay through legal bouts, then, the APRC has fulfilled that need superbly!