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Certain P-TOMS clauses need amendments, rules Supreme Court
The Supreme Court held on Friday that certain provisions of the P-TOMS (Post Tsunami Operations Management Structure), the Joint Mechanism signed between the Government and the LTTE last month need to be amended if it is to have its Constitutional green light.

The Court, granting interim relief to the petitioners by the JVP, held that;
Clause 6(b)(ii) – Project approval and management, with respect to projects for post-tsunami emergency relief, rehabilitation, reconstruction and development

Clause 6 (f) – Location – the Regional Committee shall be located in Kilinochchi
Clause 6(l) – Preject Management Unit and
Clause 7 – Regional Fund, needed amendments.

The Sunday Times reproduces here the full text of the portion of the judgment, written by Chief Justice Sarath Nanda Silva, giving its thinking and its reasoning why they held that the President was entitled to proceed with a mechanism for urgent humanitarian relief to tsunami-hit victims despite the fact that some of the provisions of the P-TOMS were held un-Constitutional.
“From this point, I have to examine the submissions with regard to the specific provisions of the MoU in relation to the Committees and their respective powers and functions.

The basic submission of the Counsel for the Petitioners in this regard is that the three Committees proposed to be set up as the Operational Management Structure would not derive authority from any law that is applicable.
The Respondents reply is that these Committees are adhoc structures intended solely to ensure the effective disbursement of post-tsunami relief in the six districts referred to above.

The Respondents have not identified the provisions of any statute or any other applicable law on the basis of which the Operational Management Structures are being set up. Considering the objectives as set out in the preamble to the MOU and the fact that the Structure is set up to facilitate the disbursement of urgent humanitarian assistance, it would not be necessary, in my view to derive any specific authority from a statute, as contemplated by the Petitioners.

The submission of the Petitioners that even in such circumstances the Structure sought to be established should derive authority from a statute imposes a undue rigidity to a process that must retain a degree of flexibility to ensure that all persons who have been affected are adequately cared for.

In this connection I would refer to a relevant passage from a book on Jurisprudence under the title the "Concept of Law" by Professor H.L.A. Hart.
In this book, regarded as a leading work on Jurisprudence, Hart has departed from the strict theory of positivism expounded by Austin that authority should flow down from a least defined sovereign body which would in this instance be the legislature. Hart has posed the difficulties that would result in strict legality to cover every situation that may arise, as follows:

"...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 they could combine were known to us, then provisions could be made in advance for every possibility. We could make rules, the application of which to particular cases never called for a further choice.

Everything could be known, and for everything, since it could be known, something could be done 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 such knowledge of all the possible combination of circumstances which the future may bring... "

(Concept of Law- H.L.A. Hart - 2nd Ed. Page 128)
Hart has continued analysis and postulated what he describes as the open texture of law stated at page 135.

"The open texture of law means that there are, indeed, areas of conduct where much must be left to be developed by courts or officials striking a balance, in the light of circumstances, between competing interests which vary in weight from case to case.

"The tragedy brought about by tsunami, the human suffering and the loss of property could not be anticipated in its full dimension in any preceding statute.
Furthermore, the matter of reaching the persons who have been affected by this tragedy in certain parts of the six districts referred to is compounded by the presence of the LTTE with which organization a Cease-fire Agreement has been entered into as noted above.

This combination of circumstances necessarily lead to a situation where an arrangement could be made by the Head of Government to ensure effective distribution of humanitarian aid. The Management Structure set up in the MoU has to be primarily seen in this light.

In the circumstances in so far as the Management Structure is not reposed with any power that would impinge on the rights of the people or detract from the normal and statutory functions of Government and of financial control, there would be no basis to restrain the functions of the structure by way of an interim order issued by this Court.”

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