050-SLLR-SLLR-2006-V-1-WEERAWANSHA-AND-OTHERS-vs.-ATTORNEY-GENERAL-AND-OTHERS.pdf

(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
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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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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.