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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2526

To merge or not to merge north and eastern provinces? – Supreme Court reserves judgment

Colombo, 17 September, (Asiantribune.com): The question of the constitutionality of the amalgamation of the Northern and Eastern Provinces as one administrative unit for devolving powers was argued on Friday before a Bench of five Judges. One of the issues argued before the court by H. L. de Silva is that there was no merger in the eyes of the law and that order of September 8, 1988 of President J. R. Jayewardene is a nullity.H. L. de Silva :  "My case is that the order that directed the merger of the two Provinces was legally flawed and lacked legitimacy."H. L. de Silva : "My case is that the order that directed the merger of the two Provinces was legally flawed and lacked legitimacy."

Arguing that the merger lacks legitimacy H. L. de Silva said:

1. Neither the LTTE nor the Tamil political parties have advanced any credible or valid reason or coherent ground for justifying a permanent joinder of the two Provinces as a necessary condition for the devolution of powers of government to the representatives of the People who live in these areas. It is plain that this manipulation of the provincial boundary in this manner will enable the Tamils , who are at present not in the position of the majority in the Eastern Province, to become such a majority by utilizing their numbers in the Northern Province ( wherein they constitute 90%) to dominate the other two ethnic groups ( the Muslims and the Sinhalas) in the Eastern Province as well. It was plainly an exercise in gerrymandering and its objectives are mala fide to gain an unfair advantage over the rights of the Muslims and the Sinhalas of the Eastern Province to their loss and detriment. The policy of land settlement followed by successive Administrations since colonial times to ameliorate the social and economic conditions of the landless and was not calculated to effect demographic changes in the Eastern province.

2. The claim that the Northern and Eastern Provinces constituted the territory of the Kingdom of Jaffna that existed in the 13th to the 17th Century and that accordingly the Tamils have a preferent and exclusive claim to this territory over other ethnic groups in this Country, is not substantiated by the historical records, the archaeological and epigraphic evidence, the etymological origins of many in the North and East, place names anterior to their Tamilisation in later times suggest the contrary. Even the Indian Government that had at one time pressed for this concession on behalf of the Tamils later realized its indefensibility and when framing the relevant provision in the Indo-Sri Lanka Agreement of 1987 did not draft it on the basis that the two Provinces was "the traditional homeland of the Tamils" but only referred to these regions as the places of historical habitation of the Tamils along with other ethnic groups. By the express recognition of the rights of other ethnic groups that had always resided there, the Indian Government impliedly rejected the claim to exclusive possession of these areas by the Tamils and in providing for a Referendum to be held in the Eastern Province alone, recognized the rights of the Sinhalas and the Muslims living there. It was therefore quite clearly intended to be a conditional provision and not one which was to take effect absolutely or automatically irrespective of the wishes of the inhabitants.

3. The insistence on the joinder of the two Provinces without adducing any compelling reason for its necessity is unreasonable because it only seeks to serve a partisan interest. Declaring the said demand to be "non-negotiable" , is tantamount to asserting it as an axiomatic truth that validates itself and is not open to argumentation. This stance is indicative of unreasonableness and points to a collateral purpose lacking in bona fides. No reason is adduced for securing this unfair advantage because its ulterior purpose cannot be divulged publicly. The undisclosed reason is that it is considered necessary and advantageous in order to establish the separate State of Tamil Eelam, carved out of one-third of the landmass that is Sri Lanka and its appurtenant coastline and this is clearly not a legitimate demand to which the rest of the Country can concede.

4. To suggest that by not acceding to this demand the Government is only prolonging the conflict merely because the LTTE would not settle for anything less, is tantamount to making a ransom demand. Moreover, foreign interests that seek to pressurize the Government not to disturb a “de facto arrangement”, supposedly in the interests of peace appear to us as evidence of their seeking to act in collusion with the rebels who seek to destroy the territorial integrity of the State. No sovereign State with any awareness of this clear and present danger can compromise on this vital issue.

5. The petitioner rejects the allegation that the policies followed by democratically elected Governments of Sri Lanka over the last fifty years have deliberately discriminated against any particular ethnic group. The settlement of the landless in State lands that were undeveloped in various parts of the Country, were undertaken in the national interest and cannot be reversed to accommodate racist demands.

6. The contention that Sri Lankan Tamils who lost the Jaffna kingdom in 1620 re-acquired a separate sovereign status when the British colonial regime came to an end in 1948 has no support in Public International Law. Unlike in the case of Indian Independence in 1947, when the separate State of Pakistan was created by a partition of territory, no such division or separation of territory was demanded and did not take place. The Island of Ceylon continued to remain as one State in 1948 and thereafter. This is in accordance with the doctrine of uti possidetis juris. The International lawyer Malcolm Shaw has stated:

"The influence of the principle of territorial integrity may be seen in the Latin American idea of uti possidetis, whereby the administrative divisions of the Spanish Empire in South America were deemed to constitute the boundaries for the newly independent successor states, thus theoretically excluding any gaps in sovereignty which might precipitate hostilities and encourage foreign intervention" (International Law 5th Ed pg 446-7)

So even if it were established that the Jaffna Kingdom in 1620 encompassed not merely the Jaffna peninsula but the Northern Province and the Eastern Province as well, for which there is no evidence and which we do not accept, on the termination of British sovereignty in 1948, with the grant of Independence, there was no question of a revival of the right to sovereignty over this territory in the Tamil People. No ruler of the dominant majority has ever accepted any claim by a dissident group of people, to a divided sovereignty. Despite internecine conflicts over time the primordial view of a one people in an undivided Island was the steadfast and perennial vision of its rulers, - an obligation owed to the People of this Country. The infamous proposal to amalgamate these two Provinces at the periphery of the State using the boundaries of the Northern and the Eastern Provinces is a deep-seated scheme to undermine the territorial integrity of the State and the sovereignty of its people and make it a subject nation.

7. It is clear from the proscription of the LTTE by the Government of India Annex R that India too has grasped the fact that the LTTE’s determination to establish the separate State of Eelam out of the Northern and Eastern Provinces of Sri Lanka is a threat to the territorial integrity of India itself. At page 169 of Vol II in paragraph 2of R quite amazingly the Indian government solemnly declares that the objective of a Tamil homeland threatens "the sovereignty and territorial integrity of India and amounts to a secession of a part of the territory of India." Now if the LTTE’s objective in Sri Lanka is viewed as being a danger to the territorial integrity of India, how much more dangerous is that same objective ( which directly involves carving out of a portion of the Island’s territory) to Sri Lanka? Several reasons are given by the Indian government for this stringent view in their Government communiqué R. All the reasons evolve round the LTTE’s objective of the separate State or Eelam and the threat posed by the LTTE’s activities are viewed in the most sinister light by the Indian Government. It is quite clear that the Indian Government does not believe the LTTE were serious in agreeing to settle for federalism with the issue of the Oslo communiqué – 5th December 2002unlike the negotiators of the previous Administration of December 2004 who viewed the problem through rose-tinted spectacles!

8. If the Indian Government communiqué of 14th May 2006 the document R is taken seriously, then to grant a merger of the Northern and Eastern Provinces is to promote the cause of separatism and could even be regarded as an unfriendly act towards India by the GOSL.

9. The deprivation of the State territory comprising one-third of the whole island and its appurtenant resources and industrial development would represent an enormous financial and economic loss which the Country can scarcely afford. This includes the marine resources accruing to it as the coastal State fronting the Bay of Bengal and the Indian ocean, exclusive economic zone, the extended economic zone and the continental shelf – all of which would be equivalent to nearly twenty times the land mass of the whole Island. The estimated loss would be quite staggering.

10. Finally, the loss of control over this vase extent of territory and its magnificent natural harbour – Trincomalee would seriously jeopardize the defense of the State along the eastern coast-line and the corresponding air space over this territory.

Likewise, the internal land boundary on the Northern and Eastern borders of the North Central Province and the Eastern border of the Uva Province would be vulnerable if the Northern and Eastern Provinces are in the control of a foreign State, not forgetting the likelihood of intrusions into the Hill Country areas (Uva and Central Provinces) inhabited by fellow ethnics, originally brought to this Country by the British as plantation labour who are now fully fledged citizens of this Country who have independent representation in Parliament. If the Central and Uva Provinces are infiltrated by this militant group we would have an added danger – the phenomenon of irredentism and a new cause for Indian intervention and further fragmentation of the State.

I have outlined here some of the issues that affect the question of the legitimacy of merging these two Provinces which this Court will doubtless take into account.

Opening

The Petitioners in the three Applications before the Court are seeking a declaration that the order made by President J.R.Jayewardene in a Proclamation issued on 8th September 1988 (P2) declaring that Sub-Section (1) of Section 37 of the Provincial Councils Act No 42 of 1987 shall apply to the two adjoining Provinces – the Northern Province and the Eastern Province to form one administrative unit is of no legal effect. If the Court is pleased to accept the correctness of that contention, then it follows that each of the two provinces is entitled to have its own Governor, its separate Provincial Council, its own Chief Minister and Board of Ministers and be administered as a separate administrative unit.

The Constitution empowered Parliament by Article 154A – paragraph (3) to provide by law for two or three adjoining Provinces to form one administrative unit and to provide the manner of determining whether they should continue to be administered as one administrative unit or whether such Province should constitute as a separate administrative unit. It was only Parliament that was empowered to do this and not the President. In fact the Constitution by Article 76(1) had forbidden Parliament from abdicating its legislative power or alienating it or setting up any authority with legislative power subject to a certain exception provided by Article 76(2)

Parliament had accordingly enacted the Provincial Councils Act of 1987 and empowered the President to order a joinder in terms of Section 37(1)(a) of that Act. But by paragraph (b) of the same section it had prohibited the President from making such an order in respect of the Northern and Eastern Provinces, unless certain conditions precedent were complied with.

The President had to be satisfied that (a) arms, ammunition, weapons explosives and other military equipment which were on 29th July 1987 held or under the control of terrorist militant or other groups having as their objective the establishment of a separate State have been surrendered to the Government of Sri Lanka or to authorities designated by it. and (b) that there has been a cessation of hostilities and other acts of violence by such groups in the said Provinces. Both conditions had to be satisfied before an order for amalgamation was made.

The necessity for imposing these stringent conditions was undoubtedly for the reason that the Legislature recognized that there was a danger that with the creation of such a large unit, which was one-third of the Country, exercising devolved governmental powers and the presence of terrorist militant groups having as their objective the establishment of a separate State, there was a danger and risk that it would destroy the territorial integrity of the Country. This warning against such a danger is written into the Legislation. It is unfortunate, even tragic that the peddlers of federalism in our midst are blind to this danger or choose to ignore it.

If one were to recall from memory the situation that prevailed in the aftermath of the Indo-Sri Lanka Agreement of July 1987, the LTTE who were opposed to the Accord did not in the ensuing months renounce the resort to violence and clashes continued and open warfare with the Indian Peace Keeping Force and the LTTE soon broke out between them. An essential presupposition and the major premise for the implementation of the political proposals in the Indo – Sri Lanka Agreement and the resolution of the dispute was the cessation of hostilities. The Governments of India and Sri Lanka were to co-operate in ensuring the physical security of all communities inhabiting the Northern and Eastern Provinces and the Government of India had agreed by the Agreement to underwrite and guarantee the resolution of the conflict.

If the threat to secession was not in fact eliminated and peace was not restored, it is quite absurd to think that the Government of Sri Lanka was nevertheless still obliged to amalgamate the Northern and Eastern Provinces, confer autonomous powers of government on this enlarged territorial unit and thus gratuitously provide the rebel group a springboard for secession. The cessation of hostilities and ensuring that law and order prevailed in these areas was a fundamental term of the Agreement. That was what Parliament had decreed when it enacted this provision empowering a merger of the Northern and Eastern provinces and only Parliament could have changed the law. As is often the case, being militarily weak, the Government of Sri Lanka appears to have succumbed to external pressure. To have gone before Parliament and asked for a change in the law to enable a merger of the Northern and Eastern Provinces, in the midst of the chaos that prevailed was not an option as it would have roused an enormous amount of opposition .

Hence the resort to a legal stratagem that seem to have deceived everyone – a surreptitious amendment of the law was sought through an inconspicuous emergency regulation that appeared in the Gazette (P1) on the 2nd September 1988 purporting to amend Section 37(1)(b)

The Petitioner submits that this step taken by President Jayewardene presumably on wrong advice, was fatally flawed, though it seems to have lulled everyone into a false sense of security Section 37(1)(b) was sought to be amended by providing an alternate ground which empowered the joinder namely if the President was satisfied that "operations have been commenced to secure a complete surrender of arms etc" Under Section 5(2(d) of the Public Security Ordinance the President was empowered to make an emergency regulation amending any law and for applying any law with or without modification but this was permitted only for the purposes mentioned in subsection (1) of Section 5. The specified purposes were : "in the interests of public security and the preservation of public order and the suppression of mutiny or for the maintenance of supplies and services essential to the life of the community". It is manifest that the amendment was not for any of the stated purposes and the regulation was therefore ultra vires.

Having regard to the background of events in the context of which the question of the merger of the Northern and Eastern Provinces arose, it is beyond doubt that the question is a political decision which ultimately rests with the People of this Country in whom sovereignty is vested. The question of merger of these two Provinces, I submit is intertwined with the question of Sovereignty since it relates to the territory over which the sovereign jurisdiction extends.

So, while the question of the legality and the constitutionality of the order P2 is an essential part of my case, I do not rest my case solely on what an English Judge once described as "the austerities of a tabulated legalism" but on a more broad based foundation, namely, the question of its legitimacy, which is a manifold of humanistic values, which are essentially of a moralistic nature that embraces the concept of Justice in its widest sense. That concept encapsulates that which is just and fair, moral and equitable, that which accords with generally accepted ethical standards and values and takes into account all that which is relevant in the making of a comprehensive political judgment – the facts of history and historical memory, the social and cultural milieu and ethos that has evolved through the ages and everything else which has fashioned the consciousness of the diverse ethnic and religious groups that constitute the Nation and the People of this Country. My case is that the order that directed the merger of the two Provinces was legally flawed and lacked legitimacy

For that part of my case, relating to the lack of legitimacy, I rely on the opinions and judgments of scholars drawn from various disciplines which are relevant to a proper decision on this matter.

They are an assortment of historiographers, geographers, cartographers, anthropologists, social scientists, political analysts who represent diverse viewpoints. I have annexed excerpts from their published writings which may be of assistance to the Court in forming its own view. They do not always agree and the Court is called upon to evaluate them and come to a balanced conclusion as to whether this political decision satisfies the test of legitimacy

Equally important and this question I would submit is of vital importance and is of a decisive nature, namely, whether the determination of this question would directly or indirectly contribute to the territorial disintegration of the State. That I submit is a matter which is deserving of the highest consideration.

That transcends our own concerns as a Nation because it is also a matter of vital interest to the international community of States. The instability and turbulence in our own country following the disruption of the State would affect other States in the neighbourhood. It would result in a conflict of greater intensity and cause a humanitarian catastrophe. Its repercussions would spread world wide, the economic problems affect world trade and international commerce. Hence this question has many facets which revolve round the stability of the State. It is an important question to determine whether the Central Government of this Country will be able to manage such a situation, and in the aftermath of secession its capacity to meet challenges to the security of the remainder State and the well-being of its People.

The Court will be concerned with the likelihood of widespread disturbances, prolonged conflict, the arbitrary exercise of powers to control the situation and the likelihood of the basic principles of democracy being violated and endangering the rights of the people of this Country. So the Court has to view not merely the immediate question of the legality of the merger of the two provinces but the adverse consequences that are likely to flow there from if there is a high degree of risk of a secession taking place.

The Supreme Court has reserved judgment on this historic case.

- Asian Tribune -

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