006-SLLR-SLLR-2007-V-1-WIJESEKERA-AND-OTHER-v.-ATTORNEY-GENERAL.pdf
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WIJESEKERA AND OTHERSv
ATTORNEY GENERAL
SUPREME COURTSARATH N. SILVA, C.JJAYASINGHE, J.
UDALAGAMA, J.
FERNANDO, J.
AMARATUNGA, J.
SC FR 243/06SC FR 244/06SC FR 245/06SEPTEMBER 15, 2006
Fundamental Right – Constitution 13th Amendment – Art 4(c) Art 12(1) Art35(1), Art 80(3), Art 105(1), Art 154 A(2) – Art 152(3) & Art 155(2) -Proclamation resulting in merger of two provinces flawed Non-observance ofmandatory conditions – Amendment of condition done by EmergencyRegulations Ultra vires? – Provincial Councils Act 42 of 1987 S37(1) 37(2)a.37(2)b – Amendment 27 of 1990 – S5A – Public Security Ordinance S5 -Time bar – continuing violation.
The petitioners residents of Trincomalee and in the Digamadulla Districtswithin the Eastern Province complained that – the proclamation declaring theprovisions of S37(1) of the Provincial Councils Act shall apply to the Northernand Eastern Provinces, which resulted in these two provinces forming oneadministrative unit-merger-deny the petitioners equal protection of the lawguaranteed by Art 12(1).
Held:
The Constitution reserves the power of affecting a merger strictlywithin the legislative power of the Parliament to be done by orunder any law.
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An exception to the bar on abdication of legislative power is theempowerment of a person or body to make subordinatelegislation for prescribed purposes as contained in Article 76 (B).
The power reposed in the President is in the nature of a delegatelegislative power and the proclamation issued has to becharacterized as subordinate legislature.
S37 (1) (b) confers a specific condition to be satisfied prior to themaking of a Proclamation declaring that the provisions of subsection (1) should apply to the Northern and Eastern Provinces,which would have the effect of the two provinces being mergedas one administrative unit until a poll is held on the question ormerger in each of the provinces not later that 31.12.1988. Thespecific conditions to be satisfied in S 37 (1) (b) are the surrenderof weapons and cessation of hostilities contained in clause 2.9 ofthe Indo Sri Lanka Accord.
The President himself had stated that there had been only aformal handing over of arms and the LTTE has violated theagreement. It is beyond any doubt that the two conditions for themerger as stated in S37 (1)(b) had not been met.
The amendment of S37 (1) (b) by providing an alternative to thetwo conditions by the President by an Emergency Regulationsmade under the Public Security Ordinance 6 days prior to, theorder effecting the merger is not within the meaning of Art 170setting out an alternative condition to what was already stated inthe law S37 (1) (b). It is inconsistent with Art 154 A(3) and isinvalid.
In terms of Art 154 A (3) only the Parliament could by or under anylaw provide for two and three adjoining provinces to form one
administrative unit’’ The Parliament exercising power reposed
in sub Art (3) provided by law – S37 (1) (b) that two specialconditions shall apply in respect of the merger, hence a furtheralternative condition could, if at all be provided only by law.
Per S.N. Silva. CJ.
"An Emergency Regulation made by the President would be written law. Theterm law in Art 154 (A) (3) should in my view be restricted to the meaning inArt 170, considering the context in which it occurs in relation to Parliament.Therefore any provision for the merger could be made in terms of Art 154 (A)(3) which is in itself an exception to the general rule in Art 154 A (1) and (2)that a separate Council be established and constituted for each provinceonly by a law enacted by Parliament."
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Power reposed in the President by S5 of the Public SecurityOrdinance to make Emergency Regulation amending any lawhas to be read subject to the provisions of Art 155(2) and anEmergency Regulation cannot have the effect of amending oroverriding the provisions of the Constitution. The purportedamendment of S37(1) (b) effected by the Emergency Regulationin effect overrides the provisions of Art 154(A)(3) which onlyempowers the Parliament to provide by law for the merger of twoor three provinces.
The impugned Emergency Regulations cannot be reasonablyrelated to any of the purposes provided in S5(1) of theOrdinance, manifestly it has been made for the collateral purposeof amending another and unrelated law by means of which thePresident purported to empower himself to act contravention ofspecific conditions laid down in the law.
The preclusive clause contained in Art 80(3) which bars judicialreview of a Bill that has become law upon certification does notextend to Emergency Regulations being in the nature ofdelegated legislation.
The impugned Emergency Regulation is ultra vires and made inexcess of the power reposed in the President – it is invalid and ofno effect or avail in law.
The Proclamation made by the then President declaring themerger has been made when neither of the conditions specifiedin S37(1)(b) were satisfied. The order is therefore invalid.
Held further:
The right to have a Provincial Council constituted by an electionof the members of such Council pertains to the franchise beingpart of the sovereignty of the people and its denial is a continuinginfringement of the right to the equal protection guaranteed underArt 12(1). The objection of the time bar is rejected.
AN APPLICATION under Art 126 of the Constitution.
Cases referred to
Wickremabandu v Herath – 1990 2 Sri LR 348
Joseph Perera v Attorney-General – 1992 1 Sri LR 199
Karunatilake v Dissanayake – 1991 – Sri LR 157
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H. L. de Silva PC with S.L Gunasekera, Gomin Dayasiri and Manoli Jinadasainstructed by Paul Ratnayake Associate for the petitioner in S.C. (F/R)243/2006
Gomin Dayasiri with Manoli Jinadasa for the petitioner instructed by PaulRatnayake Associates in S.C. (F/R) 244/2006
S.L Gunasekera for the petitioner instructed by Paul Ratnayake Associatesin S.C. (F/R) 245/2006
P.A Ratnayake PC, Addi. Solicitor General, Anil Gunaratne, DSG, A.Gnanathasan DSG, Indika Demuni de Silva SSC, Janak de Silva SSC,Milinda Gunatilaka SSC and Nerin Pulle SSC for the respondents.
K. Kanag-lswaran PC with M.A. Sumanthiran and – L. Jeyakumar forintervenient petitioners
Batty Weerakoon with Percy Wickramasekera and Lai Wijenaike forintervenient petitioners.
October 16, 2006SARATH N. SILVA, C.J.
The three petitioners being residents of the Trincomalee and oithe Digamadulla Districts, within the Eastern Province, have beengranted leave to proceed on the alleged infringement of theirfundamental rights to the equal protection of the law, guaranteed byArticle 12(1) of the Constitution.
The executive action impugned as denying to the petitionersequal protection of the law relates to the Proclamation declaringthat the provisions of section 37(1) of the Provincial Councils ActNo. 42 of 1987 shall apply to the Northern and Eastern Provinces,which resulted in these two Provinces forming one administrative 10unit, a process commonly described as the merger of the twoProvinces. The case for the petitioners articulated by Mr. H.L deSilva, is that the Proclamation (P2) resulting in the merger is “fatallyflawed” due to the non-observance of the mandatory conditions ascontained in section 37(1 )(b). That, the amendment of the conditionas laid down in section 37(1 )(b), purportedly done by anEmergency Regulation (P1), rendering the conditions ineffective, isultra vires section 5 of the Public Security Ordinance whichempowers the President to make Emergency Regulations and istherefore null and void. And, although there was no valid merger 20the poll required to be held in terms of section 37(2)(a), not later
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than 31.12.1988, to enable the electors of each Province to decidewhether or not the respective Provinces should remain linked asone administrative unit, has been purportedly postponed from timeto time by successive Presidents, the last being Order P5 made bythe former President by which the poll in the Eastern Province ispostponed to 17.11.2006 and in the Northern Province to1.12.2006. Thereby, the petitioners and similarly circumstancedvoters of the Eastern Province have been continuously denied theirrights to have a lawfully elected Provincial Council constituted for 30the Eastern Province as required by Article 154 A(2) of the 13thAmendment to the Constitution.
The petitioners submitted that the election for the purportedlymerged North-East Provincial Council held in terms of noticedated 19.9.1988 (3R2) published under section 10 of theProvincial Councils Election Act No. 2 of 1988 was a sham, sincecandidates of only one political party, the E.P.R.L.F, submittednomination papers for the 3 Districts (Jaffna, Mannar andVavuniya), in the Northern Province, resulting in these candidatesbeing returned uncontested and in the Eastern Province, in 40Ampara, being the only predominantly Sinhala Polling Divisionout of 94,068 only 5617 voted (less than 6%) vide 3R3. Thepetitioners rely on P3 a contemporary publication which statesthat the Chief Minister appointed for the North-East ProvincialCouncil being the leader of the E.P.R.L.F, made several demandson the Government of Sri Lanka, proclaimed a “unilateraldeclaration of independence” and finally surreptitiously left thecountry with about 250 of his supporters in March 1990.According to paragraph 17 of affidavit 2R3, thereupon theGovernor of the North-East Provincial Council made a socommunication in terms of section 5A of the Provincial Council(Amendment) Act No. 27 of 1990, that “more than one half of themembership of the Council expressly repudiated or manifestlydisavowed obedience to the Constitution." In terms of section 5Aintroduced by the Amendment certified on 6.7.1990, a few monthsafter the events referred to above, which appears to have beenmade especially to provide for the situation that had arisen, uponsuch communication by the Governor the Council standsdissolved. Section 4 of the Amendment provides that where a
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Council stands dissolved in terms of section 5A referred to above,the Commissioner of Elections is deemed to have complied withsection 10 of the Provincial Council Election Act No. 2 of 1998(being the notice calling for nominations for an election to theCouncil) if he publishes a notice referred to in that section withina period of one week.
The Legislative and Executive action referred above, whichworked in combination, seemingly set the stage for a new electionto the merged North-East Provincial Council. I used the wordseemingly because although it appeared to be thus, it was neverintended to be so, as revealed by the immediately succeedingevents. The Commissioner of Elections by notice dated 11.7.1990(P4) under section 10 of the Provincial Councils Elections Actspecified the nomination period for the election as being from
to 1.8.1990. Thereupon the then President on
(the very next day) made Emergency Regulation undersection 5 of the Public Security Ordinance (Document “D”annexed to affidavit 2R3) which stated that the notice publishedby the Commissioner of Elections fixing the date and time ofnominations “shall be deemed for all purposes to be of no effect.”The electoral process stopped there and has remained ever sinceas it were frozen, upto date. There has been no election for eitherthe North-East Provincial Council or separately for the NorthernProvincial Council or the Eastern Provincial Council. Whereas inrespect of the Councils for the other seven Provinces in thecountry elections have been held on the due dates in 1988, 1993,1998 and 2004.
Reverting to the merger referred to above, it is to be notedthat the poll required to be held under section 37(2)(a) of theProvincial Councils Act not later than 31.12.1988 to enable theelectors of the Northern and Eastern Provinces to decide whetheror not such Provinces should remain linked as one administrativeunit, has been postponed from time to time under section37(2)(b), the last being the Order P5 referred to above. Therespondents produced the relevant order of postponementmarked 3R7A to 3R7Z the particulars of which are set are set outbelow in sequence.
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Document Gazette No. and Date Postponed Date ofPoll for NorthernProvince Postponed Date ofPoll for EasternProvince
3R7A 538/8 dated 28.12.1988 31st December 1988 31st December 1988
3R7B 538/9 dated 29.12.1988 5th July, 1989 5th July, 1989
3R7C 564/3 dated 28.6.1989 29th January, 1990 29th January, 1990
3R7D 593/19 dated 19.1.1990 14th June, 1990 14 th June, 1990
3R7E 614/5 dated 11.6.1990 19th January, 1991 19th January, 1991
3R7Z Gazette not produced 22nd August, 1991 22nd August, 1991
3R7F 674/7 dated 7.8.1991 24th February, 1992 24 th February, 1992
3R7G 698/6 dated 22.1.1992 28th August, 1992 28th August, 1992
3R7H 725/15 dated 28.7.1992 5th March, 1993 5th March. 1993
3R7I 18.2.1993 23rd August, 1993 23rd August, 1993
3R7J 780/20 dated 20.8.1993 28th April, 1994 18th February, 1994
3R7K 805/10 dated 9.2.1994 19th May, 1994 31st March, 1994
3R7L 812/09 dated 29.3.1994 14th July, 1994 26th May, 1994
3R7M 818/12 dated 11.5.1994 25th May, 1995 23rd February, 1995
3R7N 856/19 dated 3.2.1995 15th February, 1996 16th November, 1995
3R70 893/13 dated 19.10.1995 1st December, 1996 16th November, 1996
3R7P 3.10.1996 1st December, 1997 14th November, 1997
3R7Q 996/12 dated 9.10.1997 1st December, 1998 16th November, 1998
3R7R 1050/15 dated 22.10.1998 1st December, 1999 16lh November, 1999
3R7S 1102/31 dated 21.10.1999 1st December, 2000 16th November, 2000
3R7T 1156/18 dated 31.10.2000 1st December, 2001 16th November, 2001
3R7U 1209/13 dated 7.11.2001 1st December, 2002 16th November, 2002
3R7V 1254/7 dated 18.9.2002 1st December, 2003 17th November, 2003
3R7W 1314/1 dated 10.11.2003 1st December, 2004 17th November, 2004
3R7X 1365/17 dated 3.11.2004 1st December, 2005 17th November, 2005
3R7Y 1420/27 dated 23.11.2005 5th December, 2006 16th November, 2006
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Thus the electoral and consultative processes being the vitalconcomitants of Democracy ingrained in the name of the Republic inArticle 1 of the Constitution, have been effectively stymied.
The infringement pleaded is the failure to constitute a ProvincialCouncil for the Eastern Province as required by Article 154A(2) of the13th Amendment to the Constitution and the continued denial to theelectors of the Eastern Province including the petitioners the right tovote at an election for the members of such Council which stemsfrom the invalid merger effected by P1 and P2 made in derogation ofthe mandatory conditions in section 37 (1) (b) of the ProvincialCouncil Act.
Additional Solicitor General appearing for the respondentssubmitted that the condition as contained in Section 37(1 )(b) havebeen validly amended by the Emergency Regulation P1 and in anyevent the petitioners cannot seek a declaration of nullity in respect ofP1 and P2 due to time bar and/or the immunity enjoyed by thePresident in terms of Article 35(1) of the Constitution. He submittedthat the poll required to be held in terms of section 37(2)(a) to enablethe electors to decide whether or not the two Provinces shouldremain linked as one administrative unit has been validly postponedfrom time to time by orders under section 37 (2)(b) produce marked3R7 (a) to (z) and as such the petitioners do not have a right tosecure an order from Court that a Provincial Council be constitutedby election as required by Article 154(2) of the Constitution for theEastern Province.
Mr. Kanag-lswaran for the intervenients, who according to hissubmission are three Tamil persons from the Trincomalee Districtand Ampara District, claimed that the merger is based on the Indo-Sri Lanka Accord of 29.7.1987 (P6) which in clause1.4 recognizedthat “the Northern and Eastern Provinces have been areas ofhistorical habitation of Sri Lankan Tamil speaking people who havehitherto lived together in this territory with other ethnic groups.” Hesupported the submission of the Additional Solicitor General that thecondition in section 37(1 )(b) has been validly amended by P1 andthat petitioners are not entitled to relief sought. Mr. Batty Weerakoonsubmitted that the Court should be slow to declare P2 invalid sincethe merger was effected pursuant to the Indo-Sri Lanka Accord.
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The material adduced by the intervenients represented byMr. Kanag-lsvaran as to areas of “historical habitation" resulted in thepetitioners producing volumes of material to establish the divisionsthat existed in historic times and that the Eastern Province was a partof the Kandyan Kingdom at the time of British conquest. Mr. GominDayasiri representing the Muslim petitioner adduced material insupport of 'ethnic cleansing’ resorted to by Tamil militants in the JaffnaDistrict resulting over 90,000 Muslims bring driven away from the 17CDistrict in 1990. It was submitted that the process of ‘ethnic cleansing’is yet being perpetrated by the Tamil militants against the Muslims inthe Eastern Province. It was submitted by Mr. H. L. de Silva, that the‘forced merger’ would result in a destabilization of the ethnic balancein the Eastern Province. Both Mr. de Silva and Mr. Dayasiri relying onthe material produced submitted that according to the 1981 censusthe demographic composition of the Eastern Province was:
Tamil-40%
Muslims -32%
Sinhala-26%180
Whereas in a merged North-East Province the demographiccomposition would be
Tamil-60%
Muslims -18%
Sinhala-13%
It was submitted that the merger would result in the Muslim andSinhala communities in the Eastern Province being permanentlysubjugated to a minority which situation would be exacerbated by theprocess of “ethnic cleansing” carried out by the Tamil militants asreferred to above. On the other hand Mr. Kanag-lswaran submitted 190that the ‘merger’ sets right the imbalance brought about by the highincrease of the Sinhala population in the Eastern Province in theperiod 1947 to 1918. He submitted that whereas the nationalincrease of the Sinhala population in country was during the periodwas 238%, the increase in the Eastern Province was 883%.
Taking note of the volatile and ethnically incendiary materialproduced and trend of submissions based thereon, reminiscent ofthe ethnic mistrust that led to terrorism, violence, death anddevastating destruction that has characterized our body-politic, the
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Court indicated to Counsel that the case would be considered onlyfrom the perspective of securing to every person the equal protectionof the law guaranteed by Article 12(1) of the Constitution. Theessential corollary of the equal protection of the law is the freedomfrom discrimination, based “on the grounds of race, religion, language,caste, sex, political opinion, place of birth or any one of such grounds”guaranteed by Article 12(2). The elements of race, religion andlanguage characterize ethnicity that tend to divide people. Caste, sex,political opinion and place of birth are sub-elements of furtherdivisions between people. In contrast the equal protection of the lawunifies people on the basis of the Rule of Law and the peacefulresolution of disputes that characterizes the exercise of judicial powerin terms of Article 4(C) read with Article 105(1) of the Constitution.From this perspective the physical identification of a unit of devolutionof legislative and executive power, being the bone of contention,diminishes in significance. Whilst ethnic criteria would be relevant todefine the territory of a unit of devolution since a homogeneous unitcould be better managed and served, the overriding considerationwould be current criteria (not historic material or speculativeassumptions for the future) that contribute to the functionaleffectiveness and efficiency of a unit from the perspective of serviceto the people, being the sole objective of representative Government.
The 13th Amendment to the Constitution was certified on14.11.1987, being the date on which the Provincial Councils Act No.42 of 1987 was also certified. The Amendment introduced a newchapter XV11A to the Constitution providing for extensive devolutionof legislative and executive power to Provincial Councils in respect ofthe subjects and functions as contained in List 1 of the 9th schedule.The legislative competence of Parliament was restricted to thesubjects and functions in List II (Reserved List). There could be “jointaction" in respect of the subjects and functions in List III (ConcurrentList) exercised in the manner specifically provided in theAmendment. These Lists are based on the context of from Article 246and the seventh schedule of the Constitution of India.
Article 154A (1) of the 13th Amendment to the Constitutionempowers the President to establish a Provincial Council for each ofthe Provinces in the Eighth Schedule. Accordingly, by Order 3 R 1 thethen President established Provincial Councils for each of the nine
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Provinces, including the North and East, separately, with effect from3.2.1988. Steps were taken to constitute a Provincial Council byelection for each of the 7 Provinces in terms of Article 154(2), 240excluding the Northern and Eastern Provinces. In respect of theNorthern and Eastern Provinces action was taken as provided inArticle 154 A (3) by the process impugned in these cases. Sub Article3 reads as follows:
“Notwithstanding anything in the preceding provisions of thisArticle, Parliament may by, or under, any law provide for two orthree adjoining Provinces to form one administrative unit withone elected Provincial Council, one Governor, one ChiefMinister and one Board of Ministers and for the manner ofdetermining whether such Provinces should continue to be 250administered as one administrative unit or whether each suchProvince should constitute a separate administrative unit withits own Provincial Council, and separate Governor, ChiefMinister and Board of Ministers. ”
An analysis of the provision reveals that the law to be enacted byParliament thereunder should have two components providing for-
the formation of one administrative unit consisting of two orthree adjoining Provinces; and
when the Provinces are so brought together as oneadministrative unit, the manner of determining where such 260Provinces should continue to be administered as one unit.
As noted above, the law enacted by Parliament in terms of sub-Article 3 for the merger of two or three Provincial Councils as oneadministrative unit and for the manner of determining thecontinuance of such merger is contained in section 37 of theProvincial Councils Act. The material provisions of which read asfollows:
“37(1 )(a) The President may by Proclamation declare that theprovisions of this subsection shall apply to any two or threeadjoining Provinces specified in such Proclamation 270(hereinafter referred to as “the specified Provinces"), andthereupon such Provinces shall form one administrative unit,having one elected Provincial Council, one Governor, oneChief Minister and one Board of Ministers, for the period
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commencing from the date of the first election to suchProvincial Council and ending on the date of the poll referred toin subsection (2) of this section, or if there is more than one datefixed for such poll, the last such dates.
The President shall not make a Proclamation declaring thatthe provisions of subsection 1 (a) shall apply to the Northern and 280Eastern Provinces unless he is satisfied that arms, ammunition,weapons, explosives and other military equipment, which on29th July, 1987, were held or under the control of terroristmilitant or other groups having as their objective theestablishment of a separate State, have been surrendered tothe Government of Sri Lanka or to authorities designated by it,and that there has been a cessation of hostilities and other actsof violence by such groups in the said Provinces.
(a) Where a Proclamation is made under the provisions ofsubsection (1)(a), the President shall by Order published in the 290Gazette, require a poll, to be held in each of the specifiedProvinces, and fix a date or dates, not later than 31st day ofDecember 1988, for such poll, to enable to the electors of eachsuch specified Province to decide whether-
such Province should remain linked with the other specifiedProvince or Provinces as one administrative unit, and continueto be administered together with such Province or Provinces;or
such Province should constitute a separate administrativeunit, having its own distinct Provincial Council, with a separate 3ooGovernor, Chief Minister and Board of Ministers. ”
The arguments of Counsel narrow down to the exercise ofpower reposed in the President under section 37 (1). Whilst sub-paragraph (a) empowers the President to make a Proclamationdeclaring that two or three adjoining Provinces would form oneadministrative unit, sub-paragraph (b) contains as exception inrespect of the Northern and Eastern Provinces where specialconditions have to be satisfied as to surrender of weapons andcessation of hostilities before an order of merger is made. Theprovisions of sections 37(2) as to a poll being held prior to 31031.12.1988 to enable electors of each Province merged to decide on
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the continuance of the merger is common to a Proclamation for themerger of any two or more Provinces.
The first matter to be considered in the light of the submissionsmade is whether the President in making a Proclamation undersection 37(1) (a) exercises executive power or delegated legislativepower. This aspect has to be considered by examining the provisionsof Article 154A(3) of the Constitution cited above which provides forthe merger of two or three adjoining Provinces to form oneadministrative unit as an exception to the general rule in Article 154 320A(1) and (2) that there should be a separate Council for each of thenine Provinces. A plain reading of sub-Article (3) shows that there isnot even a reference to the President contained therein. Thus theConstitution reserves the power of effecting a merger strictly withinthe legislative power of Parliament, to be done “by or under, any law”.
Articles 76 (1) of the Constitution states as follows:
“Parliament shall not abdicate or in any manner alienate itslegislative power, and shall not set up any authority with anylegislative power1'
An exception to the bar on abdication of legislative power is the 330empowerment of a person or body to make subordinate legislationfor prescribed purposes as contained in Article 76 (3) which states asfollows:
“It shall not be a contravention of the provisions of paragraph(1) of this Article for Parliament to make any law containing anyprovision empowering any person or body to makesubordinate legislation for prescribed purposes, including thepower
to appoint a date on which any law or any part thereof shall
come into effect or cease to have effect;340
to make by order any law or part thereof applicable to anylocality or to any class of persons; and
to create a legal person, by an order or an act”
It is plain to see that the power reposed in the President tospecify the Provinces in respect of which section 37(1) will applycomes fairly and squarely within sub-paragraph (b) of Article 76 (3).
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Hence the power reposed in the President is in the nature of adelegated legislative power and the Proclamation issued has to becharacterized as subordinate legislation.
Section 37 (1)(b)contains a specific condition to be satisfied 350prior to the making of a Proclamation declaring that the provisions ofsub-section (1) (a) shall apply to the Northern and Eastern Provinces,which would have the effect of the two Provinces being merged asone administrative unit until a poll is held on the question of mergerin each of the Provinces not later than 31.12.1988. They are:
that arms, ammunition, weapons, explosive and othermilitary equipment which on 29.7.1987 were held or underthe control of terrorist militants of other groups having astheir objective the establishment of a separate State, havebeen surrendered to the Government of Sri Lanka or to 360authorities designated by it, and;
that there has been a cessation of hostilities and other actsof violence by such groups in the Province.
It Is a common ground that, the date specified in (i) above,29.7.1987 is the date of the Indo-Sri Lanka Accord (P6) which inclause 2.1 to 2.6 contains provisions for the interim merger of theNorthern and Eastern Provinces as a single administrative unit. Theconditions contained in section 37 (1)(b), as to the surrender ofweapons and the cessation of hostilities are contained in clause 2.9of the Accord which states as follows:370
‘The emergency will be lifted in the Eastern and NorthernProvinces by August 15. 1987. A cessation of hostilities willcome into effect all over the island within 48 hours of thesigning of the agreement. All arms presently held by militantsgroups will be surrendered in accordance with an agreedprocedure to authorities to be designated by the Governmentof Sri Lanka. Consequent to the cessation of hostilities and thesurrender of arms by militant groups, the Army and othersecurity personnel will be confined to barracks in camps as onMay 25.1987. The process of surrendering of arms and the 380confining of security personnel moving back to barracks shallbe completed within 72 hours of the cessation of hostilitiescoming into effect. ”
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A copy of the Accord was tabled in Parliament by the thenPresident when he addressed the House on 25.2.1988 (Document“A” annexed to 2R3). In the address in reference to the surrender ofweapons and the cessation of hostilities the President stated asfollows:
*Peace prevailed in the North and the East fora few weeks afterthe agreement was signed. A formal handing over of arms took 390:place in Palaly, Jaffna, on 5th August 1987, and die processcontinued in the two provinces with the terrorist groups handingover arms. This process was not completed as one group, theLTTE, violated the Agreement and publicly said they were doingso in early October. Since then violence has continued in theseareas and the Indian Peace Keeping Force was compelled totake firm action to recover arms and explosives and hadtherefore to increase their number in the North and East. Thishas gone on for almost six months and I hope that very soonthe Indian Forces with such help as the Sri Lanka forces can 40cgive, both on land and sea, will be able to ensure that the LTTEgives up arms and violence and accepts the Agreement. Theywill then be entitled to the amnesty mentioned in the agreementand could enter the main stream of democratic politics andseek election to the Provincial Councils."
Thus in the words of the President himself there had been onlya "formal handing over of arms" as submitted by Counsel for thepetitioners. The LTTE had violated the Agreement and publicly saidso in October 1987 within 3 months of the Accord and violence hadcontinued in these areas for the past 6 months, that is upto the date 410the address was made in Parliament. There could be no betterevidence to establish that the conditions contained in section37(1 )(b) had not been satisfied as at 25.2.1988 (being the date of theaddress), although in terms of the Accord there should have been acessation of hostilities within 48 hours and a surrender of weaponswithin further 72 hours of the Agreement being signed on29.07.1987. Nevertheless in the very same address the Presidentstated as follows:
“I will be holding elections to these Councils in April and I hopeto constitute the newly elected Councils for the Provinces, 420including the temporary North/East Province in May 1988.”
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On the basis of this Address Mr. de Silva submitted that thePresident very clearly intended to make an order of merger in respectof the Northern and Eastern Provinces whether or not the conditionsas to the surrender of weapons and cessation of hostilities wassatisfied.
The Address to Parliament by the President was on 25.2.1988and the impugned order of merger (P2) was made on 8.9.1988.Hence it is necessary to ascertain from the material before Courtwhether the situation described by the President continued upto 43028.9.1988. Throughout this period the President issued monthlyProclamations under Public Security Ordinance to extend the Stateof Emergency. Every month these Proclamations were presented toParliament for approval and a statement was made by a Minister onbehalf of the Government specifying the terrorist activities in theNorth and the East with reference to the number of murderscommitted, attacks on Police stations and so on and a summary ofincidents in the other parts of the country. In the year 1988Proclamation had been made by the President every month, the firstbeing on 17.1.1988 and the last for the year was on 13.12.1988. The 440Hansards containing the statements made by the respectiveMinisters seeking approval of Parliament for the Proclamations havebeen produced marked B1 to B12 annexed to the affidavit 2R3. Thestatements establish that far from the LTTE surrendering weaponsand there being a cessation of hostilities, there were intensifiedattacks now on the Indian Peace Keeping Force (IPKF). As regardsthe specific period in which the order P2 was made that is from16.8.1988 to 15.9.1988, the situation that existed could be gatheredfrom the following extract of the speech made by the Minister (B9).
" The terrorists have concentrated their campaign of violence in 450Jaffna, Vavuniya, Batticaloa, Ampara and Trincomalee duringthe period 16th August 1988 to 15th September 1988, 62civilians and 19 security personnel were killed during thisperiod. In every instance when the terrorists carried out massattacks, security forces repulsed the attacks. Considerableamounts of arms and explosives have been captured bysecurity forces."
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Thus it is beyond any doubt that the two conditions for themerger as stated in section 37(1 )(b) referred above as to weaponsbeing surrendered by 'terrorist militants' and a cessation of hostilities 460had not been met.
Neither the Additional S.G. nor Mr. Kanag-lsvaran sought tojustify the order P2 on the basis that the factual conditions as statedin section 37(1 )(b) were met at the time the President made suchorder. They sought to support the order on the basis that theprovisions of section 37(1 )(b) had at that time been amended by thePresident by an Emergency Regulation (P1) made under the PublicSecurity Ordinance 6 days prior to Order P2 effecting the merger.
The petitioners have sought a declaration of nullity in respect of P1as well on the basis that the Regulation is ultra vires since it cannot 470)be rationally related to any of the purposes for which EmergencyRegulations could be validly made in terms of section 5 of the PublicSecurity Ordinance.
It is necessary at this stage to advert to the contents of P1. It hasbeen made under section 5 of the Public Security Ordinance andstates that section 37(1 )(b) referred to above shall have effect as ifthe words:
"Or that operation have been commenced to secure completesurrender of arms, ammunition, weapons, explosives or othermilitary equipment by such groups" are included at the end of 480the provisions.
The purpose of P2 appears to be to include an alternative to thetwo conditions contained in section 37(1 )(b) as to the surrender ofweapons and a cessation of hostilities. In terms of Articles 154A (3)only Parliament could "by or under any law provide for two or three
adjoining Provinces to form one administrative unit " The
Parliament exercising the power reposed in sub-Article (3) providedby law (i.e. section 37(1 )(b)) that two special conditions shall apply inrespect of the merger of the Northern and Eastern Provinces. Hencefurther alternative condition could, if at all, be provided onlyby law. 490 ■
Article 170 of the Constitution defines the term "law" as follows:
“law" means any Act of Parliament, and any law enacted byany legislature at ant time prior to the commencement of theConstitution and includes an Order in Council".
sc
Wijesekera and others v Attorney-General
(Sarath N. Silva. C.J.)
55
The term 'written law' has a wider meaning and is defined asfollows:
"written law" means any law and subordinate legislation andincludes Orders, Proclamations, Rules, By-laws andRegulations made or issued by any body or person havingpower or authority under any law to make or issue the same." soo
An Emergency Regulation made by the President would bewritten law. The term 'law' in Article 154A (3) should in my view berestricted to the meaning in Article 170, considering the contest inwhich it occurs in relation to Parliament. Therefore any provision forthe merger of two or three Provinces could be made in terms ofArticle 154A(3), which is in itself an exception to the general rule inArticle 154A(1) and (2) that a separate Provincial Council beestablished and constituted for each Province, only by a law enactedby Parliament. The provision purportedly made by the President byEmergency Regulation P1 which is not law within the meaning of 510Article 170, setting out an alternative condition to what was alreadystated in the law (i.e. section 37(1 )(b)) is inconsistent with Article154A(3) of the Constitution and is invalid as correctly submitted byCounsel for petitioners.
Additional Solicitor-General and Mr. Kanag-lsvaran relied onsection 5(2)(d) of the Public Security Ordinance which empowers thePresident to make an Emergency Regulation amending any law.
In terms of Article 155(1) of the Constitution the Public SecurityOrdinance, being existing legislation, is deemed to be a law enactedby Parliament.520
Article 155(2) reads as follows:
"The power to make emergency regulations under the PublicSecurity Ordinance or the law for the time being in force relatingto public security shall include the power to make regulationshaving the legal effect of over-riding, amending or suspendingthe operation of the provisions of any law except the provisionsof the Constitution. “
Hence the power reposed in the President by Section 5 ofPublic Security Ordinance to make an Emergency Regulationamending any law has to be read subject to the provisions of Article 530155(2) of the Constitution and an Emergency Regulation cannot
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have the effect of amending or over-riding a provision of theConstitution. The purported amendment of section 37(1 )(b) effectedby regulation P1 in effect over-rides the provisions of Article 154A(3)which only empowers the Parliament to provide by law for the mergerof two or three Provinces.
Mr. de Silva assailed the validity of P1 on the ground that itcannot reasonably come within any of the purposes provided insection 5(1) of the Ordinance. This section empowers the Presidentto make emergency regulations for-sk
Public security and the preservation of public order,
the suppression, mutiny, riot or civil commotion;
for the maintenance of supplies and service essential tothe life of the community;
The impugned regulation cannot be reasonably related to any ofthe aforesaid purposes. Manifestly, it has made for the collateralpurpose of amending another and unrelated law by means of whichthe President purported to empower himself to act in contravention ofspecific conditions laid down in the law.
The preclusive clause contained in Article 80(3) of the 5KConstitution which bars judicial review of a Bill that has become lawupon certification does not extend to Emergency Regulations, beingin the nature of delegated legislation. In England Judicial review of"administrative legislation" (a Broad label for delegated legislation) isgoverned by the same principles that govern judicial review ofadministrative action.(Administrative Law by Wade and Forsyth 9thed. P.858).
This Court has in the cases of Wickremabandu v Heratti'Joseph Perera v Attorney General2> and Karunatilake v Dissa-nayakeP), entertained and decided questions regarding the validity seoof Emergency Regulations and of executive action taken thereunder,which was held to be not precluded by the immunity from suitenjoyed by an incumbent President in terms of Article 35(1) of theConstitution. Such review pertains to two levels. They are:
whether the impugned regulation is per se ultra vires inexcess of the power reposed in the President;
if the regulation per se is valid whether the impugned actdone under the Regulation is a proper exercise of power;
sc
Wijesekera and others v Attorney-General
(Sarath N. Silva, C.J.)
57
I hold that both grounds urged by Mr. de Silva, as to theinconsistency with Article 154A(3) of the Constitution and being in 570any event outside the scope of section 5 of the Public SecurityOrdinance establish that Regulation P1 is ultra vires and made inexcess of the power reposed in the President. Accordingly, thepurported amendment of the provisions of section 37(1 )(b) of theProvincial Councils Act by the President is invalid and of no effector avail in law.
The next question to be decided is in relation to the validityof Order P2 effecting a merger of the Northern Provinces. Section37(1 )(b) contains two mandatory conditions that have to besatisfied before a Proclamation effecting a merger is issued. The 580address made by the President to Parliament and the statementsmade as to the security situation seeking an approval of theProclamations of the State of Emergency in the year 1988referred to in the preceding analysis clearly establish that thePresident could not have been possibly satisfied as to either ofthese mandatory conditions. The endeavour to amend themandatory conditions by recourse to the Emergency Regulationsdemonstrates that the President in his own mind knew that thetwo mandatory conditions have not been satisfied. An axiomaticprinciple of Administrative Law is thus formulated by Wade and 590Forsyth early in the treatise as follows:
“Even where Parliament enacts that a minister may makesuch order as he thinks fit for a certain purpose, the courtmay still invalidate the order if it infringes one of the manyjudge-made rules. And the court will invalidate it, a fortiori, ifit infringes the limits which Parliament itself has ordained. “
(9th Edition page 5)
The Proclamation P2 made by the then President declaringthat the Northern and Eastern Provinces shall form oneadministrative unit has been made when neither of the conditions 600specified in section 37(1 )(b) of the Provincial Council Act No. 42of 1987 as to the surrender of weapons and the cessation ofhostilities, were satisfied. Therefore the order must necessarily bedeclared invalid since it infringes the limits which Parliament itselfhas ordained.
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Finally, I have to address the objection of time bar raised bythe Additional Solicitor General. The impugned orders P1 and P2were made in September 1988 and the poll to be held in terms ofsection 37(2)(a) has been postponed over past 17 years by thedocuments 3R7A to 3R7Z, The last postponement was made on eio23.11.2005 fixing the date of poll on 16.11.2006 and 5.12.2006 forthe Eastern and Northern Provinces respectively. The petitionershave failed to invoke the jurisdiction of this Court within onemonth of any of the impugned orders as required by Article126(2). It is therefore submitted that the petitioners are precludedfrom obtaining relief.
The counter submission of Mr. de Silva is that the rights ofthe petitioners and those similarly circumstanced in the EasternProvince to have a Provincial Council constituted in terms ofArticle 154A(2) by election of members is a continuing right and 620its denial by the ultra vires orders P1 and P2 is a continuing denialto the petitioner and those similarly circumstanced the equalprotection of the law guaranteed by Article 12(1) of theConstitution. He further submitted that the purportedpostponement of the poll by 3R7A to 3R7Z are no force or effectin law since they seek to derive validity from P1 and P2.
As noted above the 13th Amendment which introduced anew Chapter XVIIA to the Constitution provides for extensivedevolution of legislative and executive power to ProvincialCouncils. Although the Amendment was certified on 14.11.1987 630and a Provincial Council was established for the Eastern Provinceand each of the other 8 Provinces by Order dated 3.2.1988 (3R1)made in terms of Article 154A(1) of the Constitution a ProvincialCouncil has not been constituted for the Eastern Province by anelection of members as required by Article 154A(2) due to theimpugned order of merger P2. The right to have a Provincialconstituted by an election of the members of such Councilpertains to the franchise being part of the sovereignty of thePeople and its denial is a continuing infringement of the right tothe equal protection of law guaranteed by law Article 12(1) of the 640Constitution, as correctly submitted by Mr. de Silva. Therefore theobjection of time bar raised by the Additional Solicitor General isrejected.
Senarath and others v Chandrika Bandaranayake Kumaratunga
SCand others59
For the reasons stated above I allow the applications andgrant to the petitioners the relief prayed for in prayers (c) and (e)of the respective petitions. No costs.
JAYASINGHE, J.-I agree.
UDALAGAMA, J.-I agree.
FERNANDO, J.-I agree.
AMARATUNGA, J.-I agree.
Relief granted.