The Supreme Court yesterday ruled that the proclamations issued by the then President enabling the Northern and Eastern Provinces to operate as one administrative unit and be administered by one elected council were null and void and had no legal effect.
Chief Justice Sarath N. Silva with Justices Nihal Jayasinghe, N.K. Udalagama, Raja Fernando and N.G. Amaratunga agreeing also ruled that the failure of the then President to appoint a date by order published in the Gazette for the establishment of a Provincial Council for the Eastern Province was an infringement and continuing violation of the petitioners` fundamental right to equality.
The court observed that the proclamation made by the then President declaring the Northern and Eastern Provinces as one administrative unit was made when neither of the conditions specified on Section 31(1)(b) of the Provincial Council Act as to the surrender of weapons and the cessation of hostilities was satisfied. Therefore the court ruled that the order must necessarily be declared invalid.
The judgment stated that the 13th Amendment which introduced a new Chapter XVII A to the Constitution provides for extensive devolution of legislative and executive power to Provincial Councils.
It also stated that although the Amendment was certified on 14.11.1987 and a Provincial Council was established for the Eastern Province and each of the other 8 provinces by order dated 3.2.1988, a Provincial Council has not been established for the Eastern Province by an election of members as required by Article 154 A (2) of the Constitution due to the imposed merger.
The court ruled that the right to have a Provincial Council constituted by an election of the members of such Council pertained to the franchise being part of the sovereignty of the people and its denial was continuing infringement of the right to the equal protection of the law guaranteed by Article 12(1) of the Constitution.
The Petitioners, JVP Parliamentarians Jayantha Wijesekera and L.K. Wasantha along with A.S. Mohamed Buhary of Sammanturai had filed separate petitions seeking a separate Provincial Council for the East.
K.Thambiah of Trincomalee, Vettivel Jayanthan of Ampara, United Socialist Party leader Siritunga Jayasuriya and N. Thillayampalam of Ampara had filed intervenient petitions.The JVP petitioners had ask the court to declare that the Proclamations issued by former President J.R. Jayewardene on September 2 and 8, 1988 enabling the Northern and Eastern Provinces to be one administrative unit administered by one elected Council and purported amalgamation of the Northern and Eastern Provinces were null and void.
They had also sought a declaration from the court that the failure of the President to appoint a date by order published in the gazette for the establishment of a Provincial Council for the Eastern Province was an infringement and a continuing violation of their fundamental right to equality. They asked that such an order be directed to be made by the President.
They had sought another declaration from the court that the consequential failure to afford the petitioners and other inhabitants of the Eastern Province an opportunity to exercise their right to vote at an election for membership of the Provincial Council of the Eastern Province was a denial of their right to equality and equal protection of the law.
They asked the court to declare that two separate persons be appointed by the President as Governors of the Northern Province and the Eastern Province. President`s Counsel H.L.de Silva, S.L. Gunasekera and Gomin Dayasri and Manoli Jinadasa instructed by Paul Ratnayake Associates appeared for the petitioners. Additional Solicitor General P.A. Ratnayake with Deputy Solicitor Generals Anil Gunaratne and A. Gnanathasan and Senior State Counsel Indika Demuni de Silva, Janak de Silva, Milinda Gunatilake and Nerin Pulle appeared for the respondents. President`s Counsel K. Kagag-Iswaran with M.A. Sumanthiran, Batty Weerakoon, L. Jeyakumar, Percy Wickremasekera and Lal Wijenaike appeared for intervenient petitioners.