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Accord terms not met, says Sri Lankan court

B. Muralidhar Reddy

Parliament is the competent body to legislate on merger, says verdict

COLOMBO: Striking down the order of the President of Sri Lanka on the temporary merger of northern and eastern provinces, a five-member Supreme Court bench has held that the President had no authority to merge the provinces under the Emergency Regulation and Parliament was the competent body to legislate on the subject.

In a 23-page judgment on a petition filed by three MPs of the Janatha Vimukthi Peramuna (JVP), the apex court dealt at length on the circumstances under which the temporary merger came about after the India-Sri Lanka Accord. The unanimous verdict said the President had merged the two provinces though two conditions mentioned in the accord were not met.

The conditions are cessation of hostilities within 48 hours after the signing and surrender of all arms by militant groups.

"The LTTE had violated the agreement and publicly said so in October 1987 within three months of the accord and violence had continued in these areas. There could be no better evidence to establish that the conditions contained in Section 37 (1) (b) had not been satisfied."

Reading out portions of the judgment in a packed court hall, the Chief Justice said the judges had upheld the contention of the petitioners that the merger was in "excess of the powers reposed in the President".

Right to equality plea

The MPs, invoking Fundamental Rights, argued that their "right to equality" had been violated by the failure of the President to set a date for the establishment of a separate provincial council for the eastern province.

They claimed that the merger under an executive order by President J.R. Jayewardene had no validity in law since he made the proclamation after "unlawfully amending the Section 37(1)(b) of the Provincial Council Act No. 42 of 1987, under the Emergency Regulations."

The petitioners sought two persons to be appointed by the President as Governors of the northern and the eastern provinces.

They also sought declarations that the September 2, 1988 merger proclamation published in the gazette were null and void without having any legal effect.

The judges said their verdict was based on equal protection of law. "The essential corollary of the equal protection of the law is the freedom from discrimination, based on grounds of race, religion, language, case, sex, political opinion, place of birth or any one such grounds guaranteed by Article 12 (2).

"The elements of race, religion and language characterises ethnicity that tend to divide people..From this perspective the physical identification of a unit of devolution of legislative and executive power, being the bone of contention, diminishes in significance."

The verdict said the legislative and executive action of Parliament and the President "seemingly set the stage for a new election to the merged north-east."

The Chief Justice said he had deliberately used the term seemingly, as the electoral process stopped in the north-east and had remained ever since frozen.

Separate elections

As per court order the north-eastern province would be de-merged into the northern and the eastern provincial councils and separate elections would be held.

The judgment appears to have caught the mainstream political parties by surprise. Dharamalingam Sithadthan, one of the three members of the Tamil parties who visited New Delhi recently for consultations, told The Hindu , "This is a political problem. Merger of the north and east is adopted under the present Constitution. The Constitution can be amended encompassing north-east merger as a part of devolution. We do believe there should be a reasonable way out to meet the aspirations of Muslims in the north-east."

A spokesman for the presidential secretariat said the Government would make a "careful study of the determination by the Supreme Court with all its implications, in deciding on steps to be taken in view of this determination."

TamilNet noted in a report posted on the website that the ruling also "scuttled" the Post-Tsunami Joint mechanism (P-TOMS) between the Liberation Tigers of Tamil Eelam and the Government.

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