A Cabinet note by External Affairs Minister, Prof. G.L. Peiris, has strongly recommended the repeal of Article 154 (A) (3) of the Constitution to abrogate the power, currently available to Parliament, to legislate for the merging of provinces and the repeal of Section 37 of the Provincial Councils Act No 42 of 1987, altering key aspects of the 13th Amendment to the Constitution.
The note, dated 5 June 2013, has proposed that the powers conferred upon the President to effect a merger of the provinces through a Presidential Proclamation could be taken away with the repeal of Section 37 of the Provincial Council Act No 42 of 1987, by a simple majority.
Calling for the repeal of Article 154 (A) (3) of the Constitution, the submission states: “It is desired to preclude at any time in the future action to bring about a merger.”
Section 7 of the note states: “The repeal of this Article will abrogate the power, at present available to Parliament, to legislate for merging provinces,” adding that such a constitutional amendment would require a two-thirds majority, in terms of Article 82 (5) of the Constitution. The note to the Cabinet has made specific reference to the powers conferred on the President under Section 37(1) (a) of the Provincial Council Act, declaring the powers to be “restricted in its scope and effect by other legal provisions, which are;
(I) Several criteria relating to surrender of arms and military equipment by terrorist groups and cessation of hostilities are set out as conditions precedent for the validity of the Presidential Proclamation (Section 37(1)(b) of the Provincial Councils Act);
(II) A mandatory poll is required to determine whether the provinces merged by Presidential Proclamation will continue merged or be de-merged (Sections 37(2), (3) and (4) of the Provincial Councils Act);
(III) Special provision is made with regard to the conduct of such a poll in the Eastern Province (proviso to Section 37(3) of the Provincial Councils Act)
Further, it refers to the discretion conferred upon the President to postpone the date of the poll from time to time, under the Provincial Councils Act, but has declared that no poll had been held at any time during the last 25 years in the Eastern Province by former President J.R. Jayewardene by Presidential Proclamation under Section 37(1) (a), adding that this has been invalidated by the Supreme Court on the ground of non-compliance with mandatory conditions for the exercise of this power.