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Supreme Court strikes down North-East merger

Merger of Northern and Eastern Provinces to form a single Tamil-dominated province was declared illegal, reports PK Balachandran.

india Updated: Oct 16, 2006 19:04 IST

In a judgment which could have far reaching national and international consequences, the Sri Lankan Supreme Court on Monday declared as illegal the merger of the Northern and Eastern Provinces to form a single, Tamil-dominated, North Eastern Province.

Quickly reacting to the judgment, the Secretariat of President Mahinda Rajapaksa said that the government would make a "careful study" of the Apex Court's determination "with all its implications" before deciding on the steps to be taken.

The two provinces were merged in 1988 under Emergency Regulations, by the then President, JR Jayewardene, following the India-Sri Lanka Accord in July 1987.

The Accord, signed by President Jayewardene and the then Indian Prime Minister Rajiv Gandhi, stipulated the merger of the Northern and Eastern Provinces on the grounds that the combined province was the place of "historical habitation" of the minority Tamils.

This was in recognition of the Tamils' long standing demand for a "Homeland" within Sri Lanka since the country's independence in 1948.

A five-member bench, headed by Chief Justice Sarath Silva held that President Jayewardene could not invoke Emergency Regulations to effect the merger.

As per the constitution, only parliament could merge provinces, and not the President, the bench said.

The two provinces were merged under Sec 37(1) (b) of the Provincial Councils Act of 1987.

But the petitioners contended that the merger was "fatally flawed" because the "mandatory conditions" were not met.

President Jayewardene had also amended the "mandatory conditions" using Emergency Regulations.

But these regulations could not be applied in this case as they were meant for other purposes.

The Emergency Regulations were to be used for suppression of mutinies, for ensuring public order and the movement of essential supplies, not to effect the merger of provinces, it was pointed out.

The mandatory condition was that there should be a full surrender of arms by the LTTE and a cessation of hostilities and violence.

But because there had been no full surrender of arms, and fighting was still going on, the President had amended the Act using Emergency Regulations to say that the commencement of the process of surrender of arms would do.

"The provision purportedly made by the President by Emergency Regulation P1 which is not law within the meaning of Art 170, setting out an alternative condition to what was already stated in the law (ie: Section 37(1)(b)) is inconsistent with Art 154 A(3) of the Constitution and is invalid as correctly submitted by Council for Petitioners," the bench said.

Accepting the petitioners' plea that a Provincial Council for the Eastern Province be established and elections to it be held immediately, the bench said that this was a basic right, which they were entitled to.

Franchise was a part of the sovereignty of the people, the bench decreed.

The case against the merger was filed by members of the Janatha Vimukthi  Peramuna (JVP) and the Jathika Hela Urumaya (JHU) on behalf of the  Sinhala and Muslim communities which had suffered as a result of  the merger and subsequent developments.

As per the law, the merger was to be ratified in a referendum, but successive governments had been postponing the referendum saying that the security situation was not conducive for that.

With the result, the people of the Eastern Province never got a chance to express their view of the merger.

With the elections to the Provincial Council also being postponed (the last one was in 1988) the people of the Eastern Province had not had a chance to elect their own Provincial Council, they said.

The Provincial Council had remained dissolved since 1990, when the then provincial government led by the Eelam Peoples' Revolutionary Liberation Front (EPRLF) had unilaterally declared the establishment of an independent Tamil Eelam.