The pro-LTTE Tamil National Alliance (TNA) has said that the Sri Lankan Supreme Court's judgement against the merger of the Northern and Eastern Provinces to form a single Tamil-speaking province is a violation of both domestic and international law.
Speaking in parliament here on Tuesday, the leader of the TNA, R Sampanthan, said that the court was wrong when it said that the Provincial Councils Act could not be amended by the President under the Public Security Ordinance and that the merger brought about by such an amendment was invalid in law.
"Sec 5(2)(d) of the Public Security Ordinance empowers the President to make an Emergency Regulation amending any law," said Sampanthan, himself a leading lawyer of Trincomalee.
"Art 155 (2) of the Constitution in the Chapter dealing with Public Security, states that the power to make Emergency Regulations under the Public Security Ordinance shall include the power to make regulations having the legal effect of over-riding or suspending the operation of the provisions of any law except the provisions of the Constitution," the Tamil MP pointed out.
President JR Jayewardene had merged the North and the East in 1988 by using the Public Security Ordinance to amend the Provincial Councils Act so that some provisions regarding law and order were diluted.
The original Act had said that if the North and the East were to be merged, the Tamil militants should have surrendered their arms.
Since there was a political necessity and an international obligation to merge the two provinces at that time, despite the LTTE's refusal to surrender all its arms, the President had amended the Act, using the Public Security Ordinance, to say that it would be alright if the process of surrendering arms was on.
Sampanthan said that the Jayawardene government was in the process of securing the surrender of arms by the LTTE under the India-Sri Lanka Accord of 1987, which itself was meant to establish peace and normalcy in Sri Lanka.
What the President did was well within his powers, Sampanthan pointed out. He had only amended a section of an Act and not the Constitution of Sri Lanka as alleged.
Violation of bi-lateral treaty
Sampanthan pointed out that the merger of the North and East was effected in accordance with the India-Sri Lanka Accord of July 1987 and, as per international law, this could not be disregarded by any court in Sri Lanka.
"The Indo-Sri Lanka Accord is a bilateral treaty between two sovereign nations. It is governed by the Vienna Convention, the Law of Treaties Vienna, 23rd May 1969, and the duty of all organs of the Sri Lankan State to honour every obligation cast on it cannot be denied," Sampanthan pointed out.
"Particular reference is made to Part III of the said Convention which deals with the Observance, Application and Interpretation of Treaties and to Art 27. It says that a "a party may not invoke provisions of its internal law as justification for its failure to perform a treaty."
"It is submitted that the Sri Lankan State cannot invoke any provision of internal law to justify its failure to merge the North and East Provinces since as a party to the Indo-Sri Lanka Accord it has undertaken to establish a merged North-East Province," Sampanthan said.
"A strange silence is sought to be maintained in regard to Sri Lanka's obligations under an International treaty," he noted.
"This has raised severe misgivings in the minds of the historical inhabitants of the Eastern and Northern Provinces who are fearful that this could result in grave injustice," he said.
The Tamil MP appealed to India and the international community to appreciate that the restoration of the status quo ante relating to the merger was an indispensable concomitant of the peace process in war-torn Sri Lanka and urged that they contribute their best efforts to ensure at the earliest that the two provinces were merged.