Sri Lanka: The Issue of Northeast De-Merger

11 Dec, 2006    ·   2165

N Manoharan posits that the merger issue should be placed in the wider context of a final settlement to the ethnic issue.

To clearly signify the political status of the Northeast of Sri Lanka, one always wonders whether to write it as 'NorthEast' or 'North-east' or 'Northeast' or 'North and East'. In this regard, the judgment of the Supreme Court of Sri Lanka on 16 October 2006 and debates thereafter raise significant issues.

A five-judge bench comprising of Chief Justice Sarath N. Silva, Nihal Jayasinghe, N.K. Udalagama, Nimal Gamini Amaratunga and Rupa Fernando ruled that the merger of northern and eastern provinces of the Island in 1987 was "invalid". The 23-page judgment reasoned that the merger was made by the then President JR Jayewardene under Emergency Regulations even though neither of the conditions mentioned in Section 31 (1) (b) of Provincial Councils Act No 42 of 1987 was met. The two conditions were cessation of hostilities and surrender of arms by all militant groups. The court observed that the merger was in "excess of the powers reposed in the President" and only Parliament was competent to decide on such a subject.

The ruling came in response to a fundamental rights petitions filed by the JVP petitioners asking the apex court to declare that the Proclamations issued by former President JR Jayewardene on 2 and 8 September 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. The petitioners argued 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 demanded a separate provincial council for the East after de-merger of the two provinces. Ironically, the court refused to entertain intervening petitions filed by some Tamils of the East.

For the record, the merger came out of the Indo-Sri Lanka Accord signed on 29 July 1987 by the then Indian Prime Minister Rajiv Gandhi and the then Sri Lankan President JR Jayawardene. Paragraph 1.4 of the Accord stated: "the Northern and the Eastern provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples, who have at all times hitherto lived together in this territory with other ethnic groups." The two conditions imposed by the Provincial Council Act were waived by President Jayewardene's regulations in September 1988. Successive presidents extended these regulations on an annual basis.

The present government seems not in a mood or hurry to act on the Supreme Court judgment. There is deep divide within the regime on the issue. While the hard line elements of the government maintain that the judgment should be allowed to prevail, moderate forces including the opposition UNP prefer a new act of parliament to make the merger of the two provinces permanent. However, what the people of the region think is important. A referendum, perhaps, would be in a position to cull the opinion. But, in the current situation a referendum may not be free and fair. Afflicted by incessant violence and constant displacement of people, the geographical extent of the eastern province is not entirely under the control of the government. Will the LTTE allow those from the 'uncleared areas' to participate in a referendum? The stand taken by dissident Karuna group has so far been ambiguous. Initially, they were against the merger, but later retracted to support the merger. The Muslim community is yet to take a firm collective stand on the issue. The international community has expressed concerns on upsetting the status quo on the issue.

To avoid serious implications, what is appropriate is that the merger issue be placed in the wider context of a final settlement to the ethnic issue. If there is a federal solution, the whole of northeast should be considered as one federal unit. Within that unit, north and east should function as sub units to address local grievances and sentiments. Under eastern sub region Muslims should enjoy sufficient autonomy. This way the Muslims may not feel insecure of a probability of domination by the Tamil community. Is it not better to call it "North-East" in both letter and spirit?