SC rules North-East merger invalid

Wasantha Ramanayake

COLOMBO: The Bench of five Supreme Court Judges yesterday held that the Proclamation made by the then President J.R. Jayewardene merging the North and East provinces as one administrative province had no force in law.

The Court delivering the judgement in three Fundamental Rights applications filed by the JVP held that the two mandatory conditions that led to the Proclamation had not been satisfied.

"The Proclamation made by the then President declaring that the Northern and Eastern Provinces shall form one administrative unit has been made when neither of the conditions specified in the Section 37 (1)(b) of the Provincial Councils Act No. 42 of 1987 as to the surrender of weapons and the cessation of hostilities, were satisfied. Therefore, the order must necessarily be declared invalid since it infringes the limits which Parliament itself had ordered."

The Court also held that the Emergency Regulations under which the then President made the purported Amendment to the Provincial Councils Act leading to the Proclamation was ultravirus and in excess of the powers of the President.

The Bench comprised Chief Justice Sarath N. Silva PC and Justices Nihal Jayasinghe, N.K. Udalagama, Raja Fernando and Nimal Gamini Amaratunga.

Petitioners JVP MP Jayanatha Wijesekera, A.S.M. Buhari and L.P. Wasantha in their petitions stated 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 and the consequential failure to afford the petitioners as well as other inhabitants an opportunity to exercise their right to vote at an election for membership of such council.

The petitioners sought two persons to be appointed by the President as Governors of the Northern Province and the Eastern Province.

They also sought declarations that the proclamation made by the then President published in the gazette dated September 8, 1988 merging the North and East provinces into a single unit of administration and the Emergency Regulations declared on September 2, 1988 were null and void without having any legal effect.

The petitioners, voters of the Eastern Province cited the Attorney General, the Governor of the North-East Provincial Council and the Commissioner of Elections as respondents.

They stated that the merger was illegal since the Section 37(1) of the Provincial Councils Act No. 42 of 1987 was not validly amended. They contended that the purported amalgamation was invalid and the two provinces remained as two separate administrative units.

H.L. de Silva PC with S.L. Gunasekera, Gomin Dayasiri and Manoli Jinadasa instructed by Paul Ratnayake Associates appeared for the Petitioners.

Additional Solicitor General P.A. Ratnayake PC with Deputy Solicitor Generals Anil Gunaratne and A. Gnanathasan, Senior State Counsel Indika Demuni de Silva, Janak de Silva, Milinda Gunathilake, and Nerin Pulle appeared for the respondents. Kanag-Isawaran PC with M.A. Sumanthiran and Batty Weerakoon with Percy Wickramasekera appeared for the Intervenient petitioners.

Meanwhile, when contacted by the Daily News President's Counsel H. L. de Silva the senior council for the petitioners said the Elections Commissioner who had been a respondent to the three rights cases should take steps to hold elections for the two Provincial Councils, the North and the East separately.

"In order to do so the Commissioner should first assess whether the situation is conducive to hold an election."

President's Counsel Silva also told that the question of a referendum would not arise since there was not a valid merger.

The spokesman for the President's Secretariat said that 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 the determination.

******

Future of Eastern population should be decided by referendum - President

COLOMBO: President Mahinda Rajapaksa said that the future of the Eastern population should be decided by means of a referendum.

In a comment made earlier President Rajapaksa has said: "The Executive, Judiciary, Legislature or any other power cannot change the future of the people in the East. Their destiny can only be decided by themselves. According to the Indo-Lanka Agreement, the future of the Eastern population has to be decided by a referendum."

The Northern and the Eastern provinces were merged by the 13th Amendment to the Constitution and the Provincial Councils Act of 1987 which set up the provincial councils.

In terms of the provisions in the Amendment and the Act, it is mandatory for a poll to be held in each province to enable the voters in each province to decide whether the two provinces should remain linked.