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The bout of the scouts

19 Sep 2021

  • A balanced look at the controversy around the appointment of the Scouts Council Chief
BY Sumudu Chamara Sri Lanka’s scout movement has a history of over a century and it has shaped the lives of a large number of persons, especially teenagers, throughout that time. Scouts are usually seen as potential leaders of the next generation, as they are exposed to activities that enhance their leadership qualities. However, despite the hopes for a bright future, the leaders of Sri Lanka’s scout movement have locked horns over an appointment said to have been made by President Gotabaya Rajapaksa to a topmost position of the Ceylon Scouts Council (CSC) or Sri Lanka Scouts Council.  With the resignation of present Chief Commissioner Maj. Gen. Milinda Peiris, the CSC has divided into two groups, with one group comprising solely a group of CSC officials and the other group comprising President Gotabaya Rajapaksa and another group of CSC officials, having different opinions as to who should be appointed as the next Chief Commissioner.  Fundamental rights petition  It was reported that despite a recommendation made by high-ranking members of the CSC as per the CSC Rules, President Gotabaya Rajapaksa had appointed present Deputy Chief Commissioner Attorney-at-Law (AAL) Janaprith Fernando, as the successor of Peiris, who had tendered his resignation effective from today (20).  According to a group of CSC officials who filed a fundamental rights (FR) application (No. 281/2021) in the Supreme Court (SC) on 13 September 2021, CSC President Eng. Merrille Goonetilleke, CSC Committee Chairman AAL Kapila Kalyana Perera, and retiring Chief Commissioner Peiris, had recommended Deputy Inspector General of Police (DIG) (Retd.) Chandra Wakishta, who is the immediate past President of the CSC and a former CSC Honorary Secretary, for the Chief Commissioner post. The petitioners claimed that the President had, however, overlooked this recommendation for reasons they said were “unrevealed and unknown” (to them). The petitioners challenged the actions and/or inactions and/or decisions of the President (in his capacity as Chief Scout and Patron of the Ceylon Scout Council), which they claimed were in violation and/or imminent violation and/or continuous violation of the petitioners’ fundamental rights guaranteed under Article 12 (a) of the Constitution. A total of 11 petitioners, who introduced themselves as life members and/or council members and/or council committee members, had named the CSC, CSC President Goonetilleke, CSC Committee Chairman Perera, CSC Honorary Secretary Kamalanath Jinadasa, CSC Chief Commissioner Maj Gen. Peiris, CSC Deputy Chief Commissioner Fernando, Secretary to the President Dr. P.B. Jayasundera, and Attorney General President’s Counsel (PC) Sanjay Rajaratnam, as the first, second, third, fourth, fifth, sixth, seventh, and eighth respondents, respectively. The petitioners alleged that the President had, in his capacity as Chief Scout and Patron of the CSC, appointed Fernando to the Chief Commissioner post with effect from 1 October, without following the proper procedure and/or contrary to the rules of the CSC. They sought the SC’s assistance to impugn the purported appointment of Fernando to the Chief Commissioner post, appoint and/or to direct the President to appoint Wakishta to the Chief Commissioner post for 2020/2021, and/or to make the appointment to the said post according to the recommendation of Goonetilleke, and to declare that the Chief Commissioner shall be appointed by the President only on recommendation of the CSC President. As interim reliefs, the petitioners requested the SC to grant an interim order staying/suspending Fernando’s appointment as the Chief Commissioner post and/or the decision by the President’s decision to appoint Fernando until the final determination of the application. They also requested the court to grant and issue an interim order appointing Wakishta as the Chief Commissioner with effect from today (20) or such other date determined by the court. Issuing an interim order to the Council to appoint an acting Chief Commissioner for the year 2020/21 until the final determination of the application was also requested, among others. The President appointing Fernando to the Chief Commissioner post without taking into account the CSC officials’ recommendation, according to the petitioners, is a violation of “Rule 8” of CSC’s rules, as the said rule requires that the President make such appointments on the recommendation of the CSC President in consultation with the CSC Committee Chairman and the retiring Chief Commissioner. Rule 8 reads: “The Chief Commissioner shall be appointed by the Chief Scout (President) on the recommendation of the CSC President in consultation with the Committee Chairman and the retiring Chief Commissioner.” The petitioners claimed that according to the said rule, it is mandatory for the President to seek the recommendation, and to act in accordance with the recommendation of the CSC President (in appointing the Chief Commissioner). They were of the opinion that the President cannot either make the appointment without such a recommendation or disregard such recommendation. With regard to recommending Wakishta, the petitioners claimed that at a meeting held on 24 July 2021, Goonetilleke, Perera, and Peiris had agreed to appoint Wakishta to the Chief Commissioner post, and that a letter had been handed over to the Presidential Secretariat, addressed to Dr. Jayasundera, informing of the resignation of Peiris and the appointment of Wakishta. They stated that they had not received any reply in this regard, and that they have learned that Fernando had been appointed to the post. Rules vs act The petitioners claimed that according to the CSC’s Rule 8, the Chief Commissioner should be appointed by the President on the recommendation of the CSC President, in consultation with the Committee Chairman and the retiring Chief Commissioner. They further said that the President does not have the sole authority to appoint the Chief Commissioner, and that the President must necessarily make such appointment only on the recommendation of the CSC President who, in consultation with the Committee Chairman and the retiring Chief Commissioner, forwards that recommendation to the President. They went on to claim that since these three parties have agreed to appoint Wakishta as the Chief Commissioner, the President has an obligation and is duty bound to make that appointment accordingly.  They further claimed that since Fernando was never recommended for the Chief Commissioner post, his appointment by the President is grossly illegal and ultra vires of the President’s powers. They claimed that the President holding the Chief Scout and Patron posts is merely ceremonial and nominal, and that the governing body of the Scouts’ Association is the CSC, and that the executive arm is the Executive Committee of the CSC. In this context, they said that the President does not exercise any executive powers over the Association. The petitioners argued that the CSC’s share capital is not held by the State nor is it financed by the State, the Association of the Council does not carry out any public functions, the management and the administration of the CSC and the Association are not controlled by the State, and the Association is an affiliate body carrying out the objectives of the World Organisation of the Scout Movement (WOSM) and not that of the State, and that therefore, the authority to appoint the Chief Commissioner is not and cannot be solely based on the President’s decision, and that such appointment should only be done on the recommendation as per the above-mentioned rules. They claimed that in this context, if the President’s decision is allowed to stand, it will gravely prejudice the Council as well as the scout movement in Sri Lanka, as their fundamental rights had been violated.  However, CSC’s Negombo District Scout Commissioner Lakshan Perera, who is of the opinion that the President’s decision is lawful and is within the President’s legal powers, begged to differ. Speaking to The Morning, he stressed that even though CSC’s Rule 8 states what the petitioners claim to be applicable in this incident, the CSC is governed by the Ceylon Scout Council (Incorporation) Act No. 13 of 1957, passed by Parliament, and that according to the law/Act, the appointment in question is lawful. He argued that legal provisions passed by Parliament as an Act are what can be referred to a legal body such as a court, not rules.   Emphasising the importance of understanding the difference between the Act and rules, he said: “Rules can easily be changed from time to time; an act cannot be changed the same way, and it has to be done in Parliament, in a more systematic manner.” Lakshan Perera further said: “The rules made as per the Act are done by the CSC and are approved at a Special General Meeting of the CSC. Therefore, the Act passed by Parliament, clearly states that the President is the Chief Scout, and that he, in his capacity as the Chief Scout, appoints several high-ranking officials including the Chief Commissioner, under Section 2 (1) (f) of the Act.” Section 2 (1) (f) of the Act states: “The Chief Commissioner, Honorary Chief Commissioners, and Deputy Chief Commissioners…shall be appointed by the Chief Scout.”    “In regards to other positions such as National Training Commissioner, Assistant Chief Commissioners, Headquarters Commissioners, and District Commissioners, are also appointed by the Chief Scout, under the Act’s Section 2 (1) (g), which clearly states that the said appointments should be made in accordance with Rule 8 (1) (d),” he noted. Opposition and politics According to what has been reported and what the petitioners have stated, this is not the first time such an appointment was made without, or without taking into consideration, such recommendations. In the application, the petitioners raised concerns about Peiris’s appointment as well. They said that Peiris assumed duties as the Chief Commissioner with effect from 1 January 2020, and that his warrant was extended for a period of one year with effect from 1 January 2021. They added that Peiris’s first appointment as the Chief Commissioner was made by the President without any recommendation from the CSC President, which they said was contrary to the procedure set out in Rule 8, and is violative of the same.  They further claimed that the said appointment, however, has not been challenged at that time, and that the present incident, however, is different to that incident. However, according to Lakshan Perera, there has been another appointment which was made not taking into account the recommendation made by the CSC President and the Committee Chairman. He said: “Before Peiris’s appointment as the Chief Commissioner, Eng. Goonetilleke, who is currently the CSC President, was also appointed by the President (exercising his powers). His appointment as the Chief Commissioner in July 2017 was made by the then President Maithripala Sirisena, based on the recommendation of outgoing Chief Commissioner Prof. Nimal de Silva. In that incident, another person had been recommended by the CSC President and CSC Committee Chairman of the Council but the Chief Scout appointed Goonetilleke as per the powers vested in him by the Act.” When asked whether any opposition was raised when the said two appointments were made, Lakshan Perera said that when Goonetilleke was appointed, there was much opposition. He added that however, the appointment was not changed as the then Secretary to the President had informed that the appointment was made in accordance with the Act and done upon obtaining legal opinion and that the President has the power to make such appointments as per the Act. He explained the background of the opposition against the President’s decision, noting: “All those who have filed the FR petition have worked with Goonetilleke and Maj. Gen. Peiris since 2017; if they felt that the two appointments were unacceptable, they could have challenged or resigned. However, they worked with them and raised no concerns. “In this case, Fernando is a person who has reached the Chief Commissioner post after serving as a Scout, Junior Scout, Senior Scout, President’s Scout, Assistant Scout Leader, Scout Leader, District Scout Leader, Assistant District Commissioner, District Commissioner, Special Commissioner, International Commissioner, and Deputy Chief Commissioner, and he was the only Sri Lankan to be elected to the World Scout Committee. He is well qualified and experienced in taking the movement to great heights.” Speaking of the opposition against Fernando’s appointment, Lakshan Perera alleged: “Some persons were attempting to get Wakishta appointed as the Chief Commissioner in order to cover up some of the revelations from audits carried out in respect of the period when Goonetilleke served as the Chief Commissioner and Wakishta was the CSC President. “There is also an attempt to inconvenience the President and Secretary to the President. The President has made the appointment (Chief Commissioner) properly, and through the petition, attempts are being made to embarrass the President and the Government when the correct appointment has been done according to the law as well as suitability.” Similar sentiments were expressed by another CSC official who spoke with The Morning on condition of anonymity. Lakshan Perera opined that there may be invisible forces behind this series of events which he believes were an attempt to hinder the scout movement in Sri Lanka, and expressed concerns that at the end of the day, these events will affect the movement. The SC is expected to consider the petition soon, and it will be a landmark hearing as this is the first time a petition of this nature was filed.  However, according to the information that has emerged, in addition to clarifying what the Act and the CSC’s Rules say and what powers they give to different individuals, the CSC will need to do a self-evaluation of its positions and management structure. Otherwise, building a future for the country’s youth would be a great challenge.


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