050-SLLR-SLLR-2006-V-1-WEERAWANSHA-AND-OTHERS-vs.-ATTORNEY-GENERAL-AND-OTHERS.pdf
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Weerawansha and others vs.
Attorney-General and others (Sarath N. Silva, C. J.)
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WEERAWANSHA AND OTHERSvs.ATTORNEY-GENERAL AND OTHERSSUPREME COURT,
S. N. SILVA, CJ
FERNANDO, J AND
AMARATUNGA.J
SC FR 228/2005 WITH
SC FR 229/2005
SC FR 230/2005
8TH AND 12TH JULY, 2005
Constitutional Law – Memorandum of Understanding for Tsunami OperationManagement Structure – Power of President and Government to sign the MoU -Articles 12(1) and 12(2) of the Constitution – Grant of part interim relief againstexercise of governmental powers contrary to the Constitution – Articles 149(1)and 154 of the Constitution – Siting of an important Committee in Kilinochchi.
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The petitioners who are members of the Janatha Vimukthi Peramuna andMembers of Parliament, some of whom had been Ministers or Deputy Ministerscomplained that the Agreement between the Government and the LTTE (Moll)for a Tsunami Operation Management Structure is violative of Articles 12(1)and 12(2) of the Constitution, the Supreme Law of the land and the rights ofvoters and the people of Sri Lanka. The 3rd respondent (in FR 228 and 229)who was the 2nd respondent in FR 230 was the Secretary, Ministry of Relief,Rehabilitation and Reconstruction. He signed the Moll for and on behalf of theGovernment.
The Moll was mainly designed to provide relief to coastal communities inthe Tsunami Disaster Zone (TDZ) constituting of Amparai, Batticaloa, Jaffna,Kilinochchi, Mullaitivu and Trincomalee District and any additional lands whichmay be brought in by the High Level Committee.
The Moll provides for a management structure at three levels (i) the High LevelCommittee consisiting of a member representing the Government one nomineeof the LTTE and one nominee of the Muslim Parties. That Committee lays downthe policy regarding the allocation of donor funds, (ii) Regional Committeeconsisting of two nominees of the Government, five LTTE nominees and threenominees of Muslim Parties. Decisions have to be of consensus or by majorityvote ; where the decision is prejudicial to a minority a 2/3 majority is required.The seat of the Regioinal Committee is Killinochch. That Committee is chargedwith the implementation of relief. The funds (foreign and local are deposited in a“Regional Fund” under a custodian jointly appointed by the Government and theLTTE to assist in the operation of relief (vide Clauses 6 and 7 of Moll). The fundwould serve the 6 Districts referred to. (iii) District Committees which accordingto the MOU have already been established and are functioning. They shallcontinue their work in identifying the needs of the respective Districts.
The petitioners sought a declaration that the Moll infringed Article 12(1) and12(2) of the Constitution and is void particularly as the Committees are notauthorized by law and in particular since the Regional Committee exercisesGovernmental powers contrary to Articles 149(1) and 154 of the Constitution.They also challenged the authority of the 3rd respondent Secretary, to sign theMoll and the power of the President in that regard. They further complainedthat the establishment of the Regional Committe in Kilinochchi wasunconstitutional in that Kilinochchi is an exclusively LTTE controlled area towhich other communities had no free access. They also alleged that the LTTEhad no legal standing to sign the Moll, being a terrorist organization.
The petitioners applied for a stay of the Moll, pending hearing anddetermination of the applications.
HELD:
(1) The Moll was placed before Parliament; and there is no evidence thatthe Cabinet of Ministers was not apprised of it. If there was default in
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that respect, it is for the Cabinet of Mfnisters and not for the court to ruleon that matter.
The MoU with the LTTE was valid especially in the context of the ceasefireagreement on 23.02.2002.
The President was empowered by the Constitution to enter into orauthorize the MoU in terms of Articles 4(b) and 33 of the Constitution.
The Committee structure under the MoU is lawful even though it is notsupported by a specific law. In this connection, the strict theory ofpositivism by Austin is untenable as explanined by Prof. H. L. A. Hartwho departed from Austin’s theory.
As such the petitioner failed to make out a prima facie case for a stay ofthe entire MoU. But they succeeded in demonstrating that powers ofthe Regional Committee are govenmental and the provision for a“Regional Fund” and its administration are contrary to Article 149(1)and 154 of the Constitution as the powers are not subject to centralcontrol and audit by the Auditor General. These arrangements are ultravires and infringe rights under Articles 12(1) and 12(2) of theConstitution. The establishment of the Regional Committee inKilinochchi is also unconstitutional.
The MoU may, therefore, be implemented after removing the illegalitiespointed out by court, by depositing funds in an account with a custodianappointed according to law. Parties may also agree on a different sitefor the Regional Committee, other than Kilinochchi.
Cases referred to:
Billimoria vs. Minister of Lands and Mahaweli Development (78-79)1
Sri LR 10
Jinadasa vs. Weerasinghe 31 NLR 33
APPLICATION for relief for infringement of fundamental rights.
H. L. de Silva, P. C. with S. L. Gunasekara, Gomin Dayasiri and ManoliJinadasa for petitioners in SC (FR) 228/05- S. L. Gunasekara with Gomin Dayasiri and Manohara de Silva for petitionersin SC (FR) 230/05
Gomin Dayasiri with Manoli Jinadasa for petitioners in SC (FR) 230/05
K. C. Kamalasabayson, P. C. Attorney-General with P. A. Ratnayake, P. C.Additional Solicitor General, D. Dias Wickramasinghe, Senior State Counseland Viraj Dayaratne, State Counsel for 1 st respondent (Attorney-General)
R. K. W. Goonesekera for 3rd respondent in SC (FR) 228/05
Nigal Hatch P. C. with K. Geekiyanage for Secretary, Ministry of Relief,Rehabilitation and Reconstruction (2nd respondent) in SC (FR) 230/05
Cur.adv.vult
2- CM 6973
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15th July, 2005SARATH N. SILVA, C. J.
The thirty-nine Petitioners in these applications are Members ofParliament. They are from a single political party, the Janatha VimukthiPeramuna (J. V. P.) and successfully contested the general election inApril, 2004, as nominees of thd United Peoples Freedom Alliance (UPFA)being an alliance entered into by certain political parties including the J VP.The Petitioners have been constituents of the UPFA Government formedafter the general election. The 2nd to 5th Petitioners were Ministers andMembers of the Cabinet of Ministers. The 6th to 9th Petitioners have beenDeputy Ministers.
The Petitioners have filed these applications alleging an infringement oftheir fundamental rights guaranteed by Articles 12(1) and 12(2) of theConstitution. It is contended that while the impugned executive or administrativeaction infringes the fundamental rights of the Petitioners directly, such actiongenerally affects the rights of their voters and of the People of Sri Lanka.
The alleged infringement of fundamental rights relate to the Memorandumof Understanding (MoU) for the establishment of a Tsunami OperationManagement Structure (P-TOMS), which has been agreed and acceptedon 24.06.2005 by the 3rd Respondent, the Secretary, Ministry of ReliefRehabilitation and Reconstruction for and on behalf of the Government ofthe Democratic Socialist Republic of Sri Lanka (GOSL) and the 4thRespondent for and on behalf of the Liberation Tigers of Tamil Elam (LTTE).
The preamble to the MoU refers to the tsunami that struck Sri Lanka on
which destroyed human life and property on an unprecendentedscale. It recites the need for all communities to co-operate on humanitariangrounds to ensure an equitable allocation of “post-tsunami funds” to allaffected areas. It is further stated that in recognition of the urgent needand in a spirit of partnership the GOSL and LTTE have resolved to worktogether in good faith and use their best efforts to deliver relief to thecoastal communities in the six Districts viz. Ampara, Batticaloa, Jaffna,Kilinochchi, Mullaitivu and Trincomalee.
The MoU provides for a management structure at three levels of a :
High Level Committee;
Regional Committee ; and
District Committees.
These Committees have to address the concerns of the persons in theTsunami Disaster Zone (TDZ) defined as an extent upto 2 kilometerslandwards from the mean low water line of the tsunami affected area withinSri Lanka.
The purview of the High Level Committee appears to extend to theentirety of the TDZ and clause 2(d) of the MoU empowers the Committee
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to bring within the TDZ additional land area affected, provided that suchareas have been directly impacted by the tsunami or directly affected bythe displacement and resettlement of persons as a result of the tsunami.This Committee comprises of three members:
One nominee of GOSL;
One nominee of the LTTE;
One nominee of the Muslim parties.
Decisions of the Committee have to be based on consensus. Accordingto clause 5(b) the main function of the Committee is to formulate policiesfor the equitable allocation and disbursement of donor funds in the TDZ,based on needs assesssments that are submitted to the Committee andguided by the principle that funds should be allocated in proportion to thenumber of affected persons and the extent of damage.
At the next level is the Regional Committee (Clause 6 of the MoU). Thegeographic scope of this Committee is the area of the TDZ in the sixdistricts mentioned above. The functions of the Regional Committee includethe development of strategies for the implementation and prioritization ofpost-tsunami relief, project approval and management in respect of projectsfor post-tsunami relief, rehabilitation, reconstruction and development;the over-all monitoring of projects and fund management as provided inSection 7. This section provideds for the establishment of a Post-TsunamiCoastal Fund for the six districts to be called the “Regional Fund”. Thefund consists of “unspecified (program)” and “secretariat funds”. The“unspecified (program)” funds consist of exclusively of foreign funds, whilst“secretariat funds” consist both foreign and local funds.
It is provided that parties meaning, the GOSL and the LTTE shall appointa suitable multi-lateral agency to be the Custodian of the Regional Fund.The purpose of the Regional Fund shall be to expeditiously make fundsavailable following the approved procedures to facilitate and acceleraterelief, rehabilitation, reconstruction and development of tsunami affectedareas of the six districts referred to above.
It futher provides that the parties meaning the GOSL and LTTE and theCustodian shall agree on a mechanism for the establishment and operationof the Regional Fund.
According to section 6(c), the Regional Committee will consist of (i)Two members nominated by the GOSL (ii) Five members nominated bythe LTTE one of whom shall serve as Chairperson (iii) Three membersnominated by the Muslim parties.
The decision making process given in clause 6(e) is that they will bebased on consensus and in the event that a consensus cannot be reachedby a simple majority.
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It further provides that if the decision has an adverse effect on a minoritygroup as acknowledged by at least two members of the RegionalCommittee, the decision will require the approval of 2/3 majority. In theevent a proposal from a District Committee does not get a simple majorityand if required by two members the rejection of such request will require2/3 majority. In terms of section 6(f) the Regional Committee shall belocated in Kilinochchi.
At the next level are District Committees, provided for in section 8. Thefunctions of each District Committee is to identify the needs of the TDZwithin the District Prioritization of needs, the submission of recommendationto the Regional Committee and monitoring and reporting on progress tothe Regional Committee. There is no specific provision with regard to thecomposition of a District Committee and section 8(c) states that theCommittee “already established and well functioning shall continue theirwork”
The Petitioners contend that the entering into of the MoU, themanagement structure of P-TOMS, and the respective powers and functionsconstitute an infringement of their fundamental rights guaranteed by Article12(1) of the Constitution, for the following reasons:
The 3rd Respondent does not have any authority to enter into theMoU for and on behalf of the Government of Sri Lanka;
The MoU does not specify that the 3rd Respondent has beenauthorized by the President in this matter and in any event, eventhe President cannot grant such authority on her own responsibilityin view of the provisions of Articles 42 and 43 (1) of the Consitution.
There is no legal basis to enter into the MoU with the LTTE, whichis not an entity recognized by law and which is identified with terror,violence, death and destruction.
The powers and functions of the Committee especially that of theRegional Committee are governmental in nature and content andcannot be. validly conferred on such Committee in the mannercontemplated in the MoU.
The foreign funds committed by the donors to carry out tsunamirelief through the Government, from part of the funds of the Republicand should be disbursed and accounted for in the manner providedin the Constitution and the applicable laws and procedure. Theprovisions in the MoU for the Regional Fund and its managementby the Regional Committee are inconsistent with these legalrequirements.
On the basis of the foregoing it is contended that the MoU set up astructure and lays down procedures that are contrary to the rule of law anddeny the Petitioners equal protection of law as guaranteed by Article 12(1)of the Constitution.
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It is further contended that the Moll with special provisions in relation tosix districts only of the TDZ with the establishment of a Regional Committeeand a Regional Fund, discriminate against citizens in the area outsidetheir districts who have been equally or worse affected by the tsunami, onthe basis of place of birth and residence and as such the fundamentalrights guaranteed by Article 12(2) of the Constitution is infringed.
The matters drawn in issue by the Petiontioners in relation to:
The ambit of Executive power of the President;
The MoU ex-facie agreed and accepted by the Government and theLTTE;
Structure intended to be set up under the MoU in the form ofCommittees and their composition ;
Civ) The powers and functions of the Committees and the financialarrangements.
are indeed unique and unprecedented in every respect.
The final relief sought by the Petitioners is that the MoU be declared voidand invalid in law as being an infringment of their fundamental rightsguaranteed by Article 12(1) and 12(2) of the Constitution. They have soughtinterim relief to restrain the Respondents from taking any steps toimplement the MoU pending thfe final determination of these applications.
From the Petitioners’ perspective, if the impugned executive or admin-istrative action is continued pending the final determination of these appli-cations, which would necessrily take considerable time, the final reliefwould be of no avail. On the other hand, as contended by Counsel for the1st – 3rd Respondents, if the MoU is not implemented forthwith, urgenthumanitarian assistance could not be granted to people of this country,especially in the six districts referred to, who have suffered and continueto suffer, untold hardship and tragedy from the natural disaster that befellthem. In this connection, it cannot be disputed that the interest of thesehelpless people should be borme firmly in mind.
As regards the matter of granting interim relief, I think it appropriate torefer to the provisions of Article 126(4) of the Constitution, which sets outthe powers of the Court to grant relief in the exercise of its jurisdiction forthe protection of fundamental rights.
Article 126(4) reads as follow:
"The Supreme Court shall ha ve the power to grant such relief or makesuch directions as it may deem just and equitable in the circumstances"
It is implicit in any provision conferring power that such power shouldbe exercised according to law. This is the basic premise of legality whichwould necessarily be attached to the exercise of power. If the element oflegality is read into Article 126(4) the provision would read as follows:
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“The Supreme Court shall have power to grant sCich relief or make suchdirections, according to law as it may deem just and equitable in thecircumstances.
The words in italics have been included by way of interpretation asconcomitant of the power to grant relief. Accordingly the relief granted bythis Court should have the effect of converting the illegality, if any, whichconstitutes the infingement, to a situation of legality, in a manner that isjust and equitable in the circumstances of the case.
It has been contended that these applications have been filed in thepublic interest. Therefore the just and equitable effect of the relief grantedshould permeate the entirety of the public interest drawn in issue andnecessarily include the interests of the victims of the tsunami in the sixdistricts referred to above. The observations made above with regard to therelief that may be granted in these applications would in my view applywith equal force to the matter of granting interim relief. However, an interimorder cannot encompass the entirety of the relief that may be consideredat the end of the case since an interim order does not follow upon a fulladjudication of the matter.
An interim order is generally referred to as "Stay Order" because it isprimarily intended to preseve that status quo that prevailed prior tointervention of the impugned action. The Court cannot be unmindful of theconsequences that may necessarily follow from such an order. In view ofthese ramifications, it is appropriate at this stage to consider the basisand the criteria generally applicable to the granting of interim relief.
In the case of Billmoria vs Minister of Lands, and MahaweliDevelopment(,). this court considered the aspects relevant to an interimorder to stay all proceedings in an acquisition of land under the LandAcquisition Act. Samarakoon C. J. at page 13 made the followingobservations:
“.In considering this question we must bear in mind that a stay
order is an incidental order made in the exercise of inherernt or impliedpowers of Court. Without such power the Court’s final orders in most caseswould if the Petitioner is successful be rendered nugatory and the aggrievedparty will be left holding an empty decree worthless for all purposes”
I would describe this observation as setting out the object or purpose forwhich interim relief is granted. It is to prevent the injustice that would otherwiseresult to the party invoking jurisdiction if the final relief obtained by him is ofno avail since the impuged illegality has by then run its course to an extentthat may be considered as irretrievable or irremediable. Counsel for thePetitioners contended, as noted above, that the MoU has a limited span ofoperation and if the Management Structure provided for is established andbecome functional whatever final relief they may obtain would be of no avail.
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The Petitioners who have been constituents of the Government someholding Ministrial portfolios contend that they have been kept in the darkas to the terms of the MoU, which was made public only as a fait accompli.The contention of Mr. R. K. W. Goonesekera, for the 3rd Respondent isthat the MoU culminated a process of “germination” that spanned severalmonths. Whilst this contentioin may be correct, considering the submissionof the Petitioners that they being an integral part of the Government werekept in the dark, it has to be surmised that the “germination” referred to didnot take place in the public domain. Be that as it may the Court has tonote that transparency being an essential component of good governancehas not been there in the process of “germination” referred to by Mr.Gunasekara. The submission of the Petitioners is that the MoU hatchedin secrecy with its manifest illegalities amounting to an infringement oftheir fundamental rights should not be allowed to run its course pendingas adjudiction of their rights by this Court. These consideration bring thePetitioners case for interim relief fairly withn the dicta in Billimoria’s caseprovided they satisfy the criteria applicable to grant interim relief.
In considering the nature and the extent of the interim relief to be grantedit is relevant to advert to the criteria generally applicable to the grant ofinterim relief. The criteria that is generally applicable is to be discernedfrom the judgments of this Court constituting precedents that date to thejudgment in the case of Jinadas vs. Weerasinghe2. The criteria fall under3 different heads. I would summariase the criteria under the followingheads:
Prima Facie Case
The party seeking interim relief should make out a strong prima faciecase of an infringement or imminent infringement of a legal right. That,there is a serious question to be tried in this regard with the probabilityof such party succeding in establishing the alleged ground of illegality.
Balance of Covenience
Under this head the main factor to be considered is theuncompensatable disadvantage or irreparable damage that wouldresult to either party by granting the interim relief or the refusal thereof.
Equitable Considerations
This involves the consideration of the conduct of the respective partiesas warrants the grant of interim relief.
The alleged infringement relates to the MOU which provides amanagement structure with functions and powers assigned to Committeesat three levels and in examining the criteria set out above the question tobe considered is whether the Petitioners have established a strong primafacie case in respect of the entirety of the MOU or in respect of any clearly
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severable part or parts of the MOU. If so, the interim relief has to berestricted to such parts only.
The criteria generally described as balance of convenience and equitableconsideration would encompass the matters stated above with regard tothe relief that may be granted for the protection of fundamental rights, asset out in Article 126(4), and considered in the preceding section of thisjudgment. On the basis of the analysis, it would be necessary to considerthe disavantage and damage in relation to both parties. Since the MOU isintended to deliver urgent humanitarian assistance to the persons whosuffered from the tsunami in the six districts referred to above, if there areany parts of the MOU in respect of which the Petitioners establish a strongprima facie case, it is incumbent on this Court to take the further step ofconverting the alleged illegality in respect of which a strong prima faciecase has been made to a situation that is legal and according to law andthereby ensure that the interim relief would not result in undue hardship tothe persons who suffered from the tsunami in these districts.
In the background stated above I would now examine the mattersdrawn in issue by the Petitioner and itemized as (i) and (ii) above, relatingto the ambit of the executive power of the President and whether the M.O.U. could have been validly entered into for the objectives as set out in thepreamble.
Mr. H. L. de Silva, P. C. contended that although the President is identifiedin Article 4(b) as the single authority to exercise the executivepower which forms part of the sovereignty of the People, the exercise ofsuch power by the President is circumscribed by the provisions of Articles42 and 43(1) of the Constitution. These Articles read as follows:
‘The President shall be responsible to Parliament for the dueexercise, performance and discharge of his powers, duties and functionsunder the Consitution and any written law, including the law for the timebeing relating to public security.
(1) There shall be a Cabinet of Ministers charged with the directionand control of the Government of the Republic, which shall be collectivelyresponsible and answerable to Parliament.
On a careful scrutiny it is seen that Article 42 specified the responsibilityof the President to Parliament for the due exercise, perfomance anddischarge of the powers and duties under the Constitution and the law.Article 43(1) similarly lays down the collective responsibility of the Cabinetof Ministers to Parliament in respect of the direction and control ofGovernment. These two provisions relating to responsibility andanswerability for the exercise of executive power. The fact that theseprovisions lay down the element of answerability bring home the pointthat the exercise, performance and discharge of executive power and
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functions is primarily vested with the President. The stage at which an-swerability arises is upon the exercise of power. It could not be contendedon the basis of these provisions that the President should consult or seekprior concurrence of either the Parliament or Cabinet of Ministers for theexercise of Governmental power. However, the element of responsibilityand answerability postulates that the President, where it is necessarymay seek the concurrence of the Cabinet of Ministers and of Parliament.
In this instance the MOU has been tabled in Parliament and there is noevidence before this Court that the Cabinet of Ministers has not beenapprised of the MOU at the time of its execution. In-any event if there is adefault in these respects on the part of the President, they are matters forimmediate concern of the Cabinet of Ministers and Parliament and not ofthis Court.
Counsel for the Respondents contended that the ambit of executivepower of the President should be considered in the light of the provisionsof Article 4(b) and 33 of the Constitution. The relevant provisions of Article33 which specifically deals with the powers and functions of the Presidentreads as follows:
In addition to the powers and functions expressly conferred on or
assigned to him by the Constitution or by any written law whether enacted
before or after the commencement of the Constitution, the President
shall have the power—
(0 to do all such acts and things, not being inconsistent with theprovisions of the Constitution or written law as by international law,customs or usage he is required or authorized to do.
These provisions in my view confer on the President not only specificpowers but also a residuary power, in respect of functions that broadlycome within the realm of the executive, It cannot be disputed that as Headof the State, Head of the Executive, and of the Government, being thedescription of the status of the President in Article 30(1), in appropriatecircumstnaces the President may lawfully act on behalf of the Republicand enter into agreements and arrangements that may be necessary tocarry out essential Governmental functions.
The preamble to the MoU sets out the basis on which it was enteredinto, being the need to provide urgent humanitatian assitance to the personswho have extensively suffered on an unprecedented scale from the tsunamithat struck Sri Lanka in December 2004. As Head of the Executive and of
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the Government it is the duty of the President to ensure that essentialrelief and assistance for rehabilitation, reconstruction and development bemade available to the persons who have thus suffered. Hence in my viewthere is no illegality in the President entering into a MOU for the objectivesand reasons set out in the preamble. The Petitioners have failed to makeout a strong prima facie case in respect of matters (i) and (ii) drawn inissue by them.
Mr. S. L. Gunasekara, contended that it is illegal to enter into the MOUwith the LTTE which he described as a terrorist organization that causedtremendous loss of life and property in this country. The contention is thateven assuming that the President could enter into a MOU for the objectivesand reasons stated in the preamble, the other party to the MOU is not anentity recognized in law and should not be so recognized due to antecedentillegal activities of the organization.
In this regard I have to note that the matter so strenuously urged byCounsel cannot by itself denude the status of the 4th Respondent to enterinto the MOU. The circumstances urged by Counsel cannot and shouldnot have the effect of placing the 4th Respondent and the Organizationthat he seeks to represent beyond the pale of law. We have to also to bearin mind that already a Ceasefire Agreement has been entered into on23.02.2002 between the Government of Sri Lanka and the LTTE, whichaccording to section 2(b) of the MOU, “shall continue in full force andeffect”.
In these circumstances there is no illegality in entering into the MOUwith the 4th Respondent for the purpose of rendering humanitarian assitanceas contemplated in the preamble to the MOU. The Petitioners have failedto establish a strong prima facie case in respect of this matter as well. Inthe result the Petitioners have failed to make out a strong prima facie caseon any ground that warrants interim relief as to the entirety of the MOU.
From this point, I have to examine the submissions with regard to thespecific provisions of the MOU in relation'to the Committees and theirrespective powers and functions.
The basic submisison of the Counsel for the Petitioners in this regard isthat the three Committees proposed to be set up as the OperationalManagement Structure would not derive authority from any law that isapplicable. The Respondents’ reply is that these Committee are adhocstructures intended solely to ensure the effective disbursement of post-tsunami relief in the six districts referred to above. The Respondents havenot identified the provisions of any statute or any other applicable law onthe basis of which the Operational Management Structures are being setup. Considering the objectives as set out in the preamble to the MOU andthe fact that the structure is set up to facilitate the disbursement of
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urgent humanitarian assistance, it would not be ncecessary, in my.view toderive any specific authority from a statute, as contemplated by thePetitioners. The submission of the Petitioners that even in suchcircumstances the Structure sought to be established should dervieauthority from a statute imposes an undue rigidity to a process that mustretain a degree of flexibility to ensure that all persons who have beenaffected are adequately cared for.
In this connection I would refer to a relevant passage from a book onJurisprudence under the title the “Concept of Law” by Professor H. L. A.Hart. In this book, regarded as a leading work on Jurisprudence, Hart hasdeparted from the strict theory of positivism expounded by Austin thatauthority should flow down from a clearly defined sovereign body whichwould in this instance be the legislature. Hart has posed the difficultiesthat would result in strict legality to cover every situation that may arise,as follws:
".if the world in which we live were characterized only by a finite
number of features, and these together with all the modes in which theycould combine were known to us, then provisions could be made in advancefor every possibility. We could make rules, the application of which toparticular cases never called for a further choice. Everything could beknown, and for everything since it could be known, something could bedone and specified in advance by rule. This would be a world fit for‘mechanical’jurisprudence.
Plainly this world is not our world: human legislators can have no suchknowledge of all the possible combination of circumstances which thefuture may bring"
(Concept of Law — H. L. A. Hart — 2nd Ed. Page 128)
Hart has continued the analysis and postulated what he described asthe open texture of law stated at page 135—
“The open texture of law means that there are, indeed, areas of conductwhere much must be left to be developed by courts or officials striking abalance, in the light of circumstances, between competing interests whichvary in weight from case to case”
The tragedy brought about by the tsunami, the human suffering and theloss of property could not have been anticipated in its full dimension in anypreceding statute. Furthermore, the matter of reaching the persons whohave been affected by this tragedy in certain parts of the six districtsreferred to is compounded by the presence of LTTE with which organiza-tion a Cease-fire Agreement has been entered into as noted above. Thiscombination of circumstances necessarily lead to a situation where anarrangement.could be made by the Head of Government to ensure effec-tive distribution of humanitatrian aid. The Management Structure set up in
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MOU has to be primarily seen in this light. In the Circumstances in so faras the Management Structure is not reposed with any power that wouldimpinge on the rights of the people or detract from the normal and statutoryfunctions of Government and of financial control, there would be no basisto restrain the functions of the structure by way of an interim order issuedby this Court.
Counsel for the Petitioners, when narrowed down to this issue, quiterightly viewed the matter in the light stated above and did not move for anyinterim relief in respect of the High Level Committee and the DistrictCommittee, since their functions are purely to assist the Governmentalauthorities on whom the final responsibility lay. However, they urged stronglythat interim relief be considered in relation to the Regional Committeewhich is in terms of the MOU, vested with Governmental powers and controlin relation to public finance. In this connection it is to be seen section6(b)(ii) and (b)(iv) deal specifically with Governmental functions andmanagement of public finance. Section 6(b) (ii) reads as follows:
“Project approval and management, with respect of projects for post-tsunami relief, rehabilitation, reconstruction and development;
This is necessarily a function that comes within the executive to behandled by the Ministry of which the 3rd Respondent, is the Secretary, inaccordance with the provisions that have been laid down in applicable lawand procedures.
Sub-section (iv) reads as follows:
“Fund management, with respect to the fund specifically defined inSection 7"
The provisions of section 7 which establish the Regional Fund havebeen reproduced before. The Fund consists of foreign funds and secretariatfunds, including both foreign and local funds. It is clear from the provisionsof the MOU that the foreign funds referred to are the donations to bereceived by Sri Lanka from multi-lateral and bi-lateral donors. These fundswhen received by the country should in terms of Article 149(1) of theConstitution be paid into the Consolidated Fund and be disbursed in termsof the Constitution and the applicable law. Expenditure from this fund wouldbe subject to audit by the Auditor General, as provided for in Article 154 ofthe Constitution. These are salutary safeguards included in respect ofpublic finance to ensure transparency in the matter of disbursement offunds and proper accountability. Multi-lateral and bi-lateral donors beingfully committed to the rule of law, transparency and good governance wouldnecessarily insist that funds committed by them magnanimously for ahumanitarian objective be properly dealt with and accounted for inthis country, according to the applicable law. The provisionsin section 7 read with 6(b)(iv) are plainly inconsistent with the Constitution
sc
Weerawansha and others vs.
Attorney-General and others (Sarath N. Silva, C. J.)
391
and applicable law. Thus the Petitioners have in my view established astrong prims facie case for interim relief in respect of section 6(b)(ii) and6(b)(iv) and section 7 of the MOU. A question now arises as to whetherany measures could be imposed by this court to convert the situation of aprima facie illegality referred to above to one of legality so that it would bejust and equitable from the perspective of all parties concerned.
In this connection it is relevant to note that section 6(i) coming withinthe purview of the Regional Committees provides for a Project ManagementUnit (PMU) to be established to manage the projects approved by the RegionalCommittee. When the operation of section 6(b)(ii) with regard to projectapproval and management by the Regional Committee is stayed, necessarilythe provisions of sub-paragraph (i) would have no effect. However, consideringthe objectives as set out in the preamble it would be necessary to establisha Project Management Unit that would exercise the Governmental functionsin respect of projects for relief, reconstruction, rehabilitation and developmentin these districts. Therefore the 2nd and 3rd Respondents are at liberty toestablish a Project Management Unit in accordance with applicableprocedures. The unit so established would take into account the measuresrecommended by the Regional Committee in terms of section 6(b)(i) andthe Regional Committee would retain its functions in terms of section 6(b)(iii)of overall monitoring of projects to ensure that relief is equally received by allpersons who have been affected by tsunami.
A specific submission has been made with regard to the provisions ofsection 6(f) being the location of the Regional Committee. It is providedthat the Regional Committee shall be located at Kilinochchi. Counsel forthe Petitioners contended that persons from certain part of the six districtsreferred to would not have easy access to Kilinochchi. This matter wasnot disputed by Counsel for the Respondents. The safeguards containedin the decision making process set out in section 6(e) to be effective toany “minority group” the members of the Committee should have no fearswith regard to the proper exercise of their choice. The Petitioners’ conten-tion of the lack of such an environment of freedom in the designated placecannot be disputed. In the circumstances the Petitioners have made out astrong prima facie case in respect of section 6(f). Accordingly interimrelief is granted restraining the operation of this provision. The partieswould be at liberty to decide on a suitable site to locate a RegionalCommittee on the basis of the criteria set out below :
That the place be centrally located within the TDZ of the six districtsreferred to;
That all persons from every part of the TDZ of these districts shouldhave free and unhindered acces to such location
The criteria set out above would result in the illegality referred to abovebeing converted to situation according to law.
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Sri Lanka Law Reports
(2006) 1 Sri L ft
The findings stated above are summarized as follows:
an interim order is not granted in respect of the entirety of theMOU referred to and the Structure as provided in the MOUconsisting of Committees may be established and becomefunctional subject to the restrictions as are imposed by thisjudgment;
the operation of Sections 6(b)(ii), 6(b)(iv), 6(b)(f), 6(1) and 7 of theMOU are stayed pending the final determination of this application;
the funds both foreign and local intended to be deposited in theRegional Fund as provided in Section 7 may instead be dealthwith according to the provisipns of the Constitution and depositedin a separate account with a Custodian to be designated, if lawfulyauthorized;
the location of the Regional Committee may be decided on by theparties in compliance with the criteria that has been stated ;
a Project Management Unit (PMU) may be set up in lieu of theUnit provided for in Section '6(1) by the relevant Ministry inaccordance with the applicable procedure. Such ProjectManagement Unit would be at liberty to coordinate andimplementation the project with the District Committee, theRegional Committee and the High Level Committes as provided inthe MOU.
The foregoing will be operative till the final determination of theseapplications.
FERNANDO, J -1 agree,
AMARATUNGA, J-1 agree,
Relief granted partly by limited stay orders.