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The three JVP members including two MPs who have filed a case in the Supreme Court seeking a de- merger of the North-eastern province said in their opening submissions that a final determination of this matter by the Court was a matter of urgent necessity.

They said there was a strong likelihood of crucial decisions affecting the political destiny of the people of the Eastern Province being taken on the basis of an unconstitutional order to merge the two provinces in September, 1988.

The petitioners state that it was likely that the presumption of validity will affect many vital decisions that are to be made in the near future when “the road map” for reaching an acceptable solution to the problem of the Northern and Eastern Provinces is being prepared.

Many citizens of the Eastern Province fear that their rights and interests will be jeopardized by being yoked together with the Northern Province –a move that will result in one ethnic group gaining an unfair advantage and thus violating the right of the people of the Eastern Province to equality of treatment and the equal protection of the law, the Petitioners said.

The Supreme Court on Friday granted leave to proceed in the Fundamental Rights petition filed by the JVP members -- Trincomalee District MP Jayantha Wijeysekera, Ampara District MP L.P Wasantha Piyatissa and A.S. Mohamed Buhary. They cited the Attorney Genera,l the Governor of the North East Provincial Council and the Commissioner of Elections as respondents.

The opening submissions were made on behalf of one of the petitioners by H.L.De Silva PC and were endorsed by the counsel for the other two petitioners.

The petitioners request the Court to annul the proclamation issued by former President J. R. Jayewardene in September 1988 declaring the Northern and Eastern Provinces as one administrative unit with one elected council.

The petitioners claim that the failure to constitute a separate provincial council of the Eastern province which has a multi-national population comprising Sinhalese, Muslims and Tamils and as they have not got the opportunity to cast their votes for several years is a denial of the right to equality before the law under Article 12(1) of the constitution.

An executive order was made by President Jayewardene on 7th September 1988 by which he declared that the Eastern province should be joined to the Northern Province and form one administrative unit and continue to be administered as one unit until the taking of a poll. The poll that was contemplated both under the constitution as well as the Provincial Councils Act was required to be held on or before the 31st December 1988 and monitored by a Committee of three under the Chairmanship of the Chief Justice, has been postponed year after year with unfailing regularity for the last 18 years and the people of both the Northern and Eastern Provinces have been deprived of the benefits and privileges of governing themselves under a Provincial Council of their choice all these years.

President Chandrika Kumaratunga shortly before the end of her term also postponed for yet another year i.e. until 16th November 2006, the taking of such a poll. This order like all previous orders proceeds on the basis that the order (made by President Jayawardena) has legal validity as there is in law a presumption of validity attaching to such an order.

In the three applications before the Court, the Petitioners who are persons from the Eastern Province, and persons qualified to vote at an election for the election of members to the Provincial Council established for the Eastern Province contend that the order made by President Jayewardene is invalid in law. The on-going proceedings of the All-Party Conference that are currently taking place, in all probability, will take far-reaching decisions affecting the future of persons in the Eastern Province. There is a grave danger that such decisions will be taken on the basis that there is a valid merger of these two Provinces. There is an imminent danger that the rights of the Petitioners will be infringed on the assumption that the merger is valid and effective.

In view of the order to which a presumption of validity attaches, it would be futile for the Petitioners to ask for the Elections Commissioner to hold an election for the Eastern Province alone as it is now linked to the Northern Province and as of now the Elections Commissioner can only hold an election for the so-called North-East Provincial Council. If that were to happen, the petitioners would once again find themselves denied their right to equality before the law and equal protection of the law would be infringed. So we base our case for relief on the footing of a threatened or imminent infringement of our rights.

It is not correct to describe our application as a request to de-merge; our contention is that there never has been a valid merger of the Northern and Eastern Provinces as required by the Constitution but only a de facto merger. That is the foundation of our case.

Our reasons for this submission are that while the thirteenth Amendment provided for the establishment of Provincial Councils for each of the nine Provinces in the country, it was also provided, as an exception that Parliament could also provide by law enabling two or three adjoining Provinces to form one administrative unit with one elected Provincial Council for the Provinces so joined or linked together with one Governor and one Council for the two Provinces so joined.

Accordingly, Parliament did enact a law that is Act 42 of 1987 which empowered the President to make the order of amalgamation upon two conditions. These were (1) the surrender of arms and ammunition and other weapons held by armed groups having as their objective the establishment of a separate State and (2) that there was to be a cessation of hostilities and other acts of violence by such groups. Those were the two preconditions for the merger of the two Provinces. The terms of the Indo-Sri Lankan Accord of 1987 which gave birth to this idea, make it clear that the merger was not a one-way street but one made conditional and contingent upon a surrender of arms by the armed groups and the cessation of hostilities.

Considering the events that followed, it was manifest that there was no real or effective surrender of arms except for the token display of some rusty unserviceable weapons in the presence of the then Defence Secretary Gen: Sepala Attygalle. It was only a photo opportunity provided – in reality a gigantic farce. Considering the ground realities and the impossibility of compliance with these conditions, we assume there were external pressures brought to bear upon the Government which no doubt felt that a change of the law had to be effected.

In order to effect a change in the law to enable a merger of the two Provinces notwithstanding the failure of the armed groups to surrender their arms and weapons, Parliament would have had to agree to a change in the law. We assume that this was not politically feasible at the time and accordingly the parliamentary process had to be by-passed.

Since the Executive President had no legislative power and since Parliament could not abdicate or otherwise alienate its legislative power, it was presumably thought by the Government’s legal advisors, whether official or unofficial, that the desired change in the law could be effected by the President making an emergency regulation under Section 5(1) read with 5(2) (d) of the Public Security Act. That was an illegal by-pass operation.

The emergency regulation which sought to amend Section 37(1)(b) of the Provincial Councils Act no 42 or 1987 is challenged by the Petitioners on the two-fold ground (1) that it is ultra vires the Constitution in that Article 154 A(3) of the Constitution which ordained that Parliament may, by or under any law provide for two or three adjoining Provinces to form one administrative unit which clearly contemplated an Act of Parliament and not through the device of subsidiary legislation (2) that the emergency regulation which sought to empower the President to make an order of joinder was ultra vires the Public Security Act and did not validly amend the Provincial Councils Act. The Petitioners therefore contend that the order made by President Jayewardene was a nullity, and there was accordingly, no North-East Province or Northern and Eastern Province established by law – and no such Provincial Council was constituted in law. The Council had only a brief period of existence and the drama of the threat of a Unilateral Declaration of Independence by the then Chief Minister Mr. Varadharaja Perumal and his exit from the country in March 1990 leading to the dissolution of the Northern and Eastern Provincial Council.

This amendment to the Provincial Councils Act (Amendment) Act No 27 of 1990 was enacted on the 6th July 1990 and by Section 5A it was provided that where the Governor of a Province communicates to the President that more than half the total membership of a Provincial Council has expressly repudiated or disavowed the obedience to the Constitution or that to all intents and purposes such Provincial Council has ceased to function, then such Provincial Council shall stand dissolved.

It is clear that the Commissioner of Elections has called for nominations from prospective candidates for election to the Northern and Eastern Provinces Provincial Council in July 1990, i.e. the amalgamated provinces on the basis that the order of merger is valid, the Petitioners stated.

When the Supreme Court inquired from the Attorney General’s Department whether they would make their submissions, the Court was informed that they had received notice but they had not got any instructions as yet.

H.L.de Silva P.C. Gomin Dayasiri and S.L.Gunasekera appeared for the petitioners.

The bench comprised Chief Justice Sarath N Silva Justices Rajah Fernando and Gamini Amaratunge.