by Champika Fernando
The Attorney General's (AG) Department will ask the Court of Appeal's permission to allow a Competent Authority (CA) overseeing Sri Lanka Cricket (SLC) to constitute an Elections Committee and hold overdue polls, amidst impassioned arguments from other lawyers that the very appointment of a CA is illegal.
After the Court of Appeal made an interim order staying the SLC's Annual General Meeting (AGM) on a writ application filed by Nishantha Ranatunga, Sports Minister Faiszer Musthapha placed the Board under Government control by appointing a CA to administer it till fresh elections were held. But it is being argued that this contravenes the Sports Law as well as Section 170 of the country's Constitution.
Sports Law No 25 of 1973 has provision under sections 32 and 33 for the Sports Minister to make "interim arrangements" in the event of a suspension or cancellation of the registration of a National Sports Association (NSA). But the gazette issued on May 31 by the Sports Minister (appointing a CA) refers to Section 41, which simply empowers him to make regulations.
“The very appointment is illegal,” insisted Panduka Keerthinanda, attorney. “Section 32 is the enabling provision for the subject Minister to make an interim arrangement. When the Sports Law is very clear, there’s no reason to make a bylaw. The direct law clearly mentions in section 32 how to act in the event of a non-functioning of a NSA. The Minister can’t bypass that section."
Keerthinanda, a former member of the National Sports Council, was also an Adviser to the former Minister of Sports Mahindananda Aluthgamage.
It is not clear why the Minister referred to Section 41 when the AG's Department advised him in writing to take appropriate action--such as the appointment of a Competent Authority--under section 33.
“...Section 33 of the Sports Law makes provisions for the Minister in charge of the subject to make interim arrangements in the event of a suspension of a national association of sports,” the Department's advice to the Minister of Sports states. The letter was signed by Senior Solicitor General Sumathi Dharmawardena.
“With the expiry of the term of office bearers on May 31, and the staying of new office bearers, there will be no committee to manage the affairs of Sri Lanka Cricket," it said. "Under these circumstances, there’s no legal impediment for the Minister to make an appropriate arrangement--such as the appointment of a Competent Authority until a new committee of office bearers are elected and assume office."
Keerthinanda said the Minister of Sports was misled and misconceived in law. He insisted that there’s no provision in the Sports Law to appoint a CA. "Therefore, the appointment of a CA is against the law of the country and whatever it does is invalid and illegal,” he explained. "The gazette does not indicate the powers and functions of the CA either."
The position taken by Keerthinanda is, however, debatable as section 33 does not specify what an "interim arrangement" means. The AG’s Department says it could be a CA.
"It can be a Competent Authority,” said Dharmawardena. “We have considered that matter. The AG has given written instructions to the Sports Minister permitting him to appoint a Competent Authority. This is not the first time a CA was appointed. We appointed a CA for cricket in 2008 and other sports bodies at various times. The Court has never ruled that the Minister has no authority to appoint a Competent Authority."
In 2008, then the Minister of Sports Gamini Lokuge sacked the Arjuna Ranatunga-led interim administration and appointed Sports Ministry Secretary S Liyanagama as Competent Authority. More recently, former Sports Minister Dayasiri Jayasekera had CAs Automobile, Hockey, Kabaddi, Boxing and Bridge Federations.
Keerthinanda now insists that all those appointments were illegal. "Given the circumstances, the best option would have been to appoint an interim committee consisting of people of integrity and repute, and not his Secretary, at least for a short period," he maintained. "As I said this, it is against the law of the country because, when it is clearly mentioned, a Minister can’t bypass a law and make a wrong appointment."
"If he wanted to appoint one person, he could have done that under section 33 and not section 41," he continued. "This is why I say it’s illegal. Besides, there’s also conflict of interest. How can the chief accounting officer of the ministry act as a head of a national sports association? These are issues which have cropped up following the minister’s decision."
However, the Court of Appeal will take up the case on June 14 for further hearing and the AG's Department will push for a withdrawal of the injunction to allow the election process to take place.
“Now that the ICC has given a ruling that the elections should be held as soon as possible, the Court of Appeal may have to take that into consideration,” said Mr Dharmawardena who appeared on behalf of the State.
The ICC discourages political interference in cricket affairs and, following the Court’s interim order, the Sports Minister, the CA and SLC CEO met ICC officials to brief them on recent developments.
“Against this development, the ICC is insisting on approval from the Court of Appeal for the CA to appoint the Election Committee as per the regulations and conduct the elections," he said. "If not, any suspension would be advantageous to some other countries with the World Cup around the corner."
Dharmawardena insisted they were not concerned about the eligibility or competency of the candidate but about a possible SLC attempt to pass a resolution taking over the minister’s powers, in the event the elections are postponed
“We have maintained a very neutral stand in the case," he said. "They have failed to incorporate the Sports Regulations to the SLC constitution. The stay order was issued on that basis. Our concern was when they were trying to pass a resolution taking over the minister’s powers in the event of a postponement of elections. The competency and the eligibility of candidates was not our concerns."