Ex-CJ flays Yahapalana Govt. for “dismantling Constitution”

By S.S. Selvanayagam

Former Chief Justice Sarath N. Silva yesterday replying to the preliminary objections on the maintainability of his Fundamental Rights petition flayed the Yahapahana Government (Good Governance) that it had repealed all the original clauses and inserted new clauses in the Provincial Council (Amendment) Bill at the Committee Stage.

He lashed at that the Constitution was dismantled in the passage of the said Bill. He maintained that the Provincial Councils Amendment Bill ceased to exist.

His Fundamental Rights application was take up before the Bench comprising Chief Justice Priyasath Dep, Justices B.P. Aluvihara and Nalin Perera.

He submitted that Bill which is statement of legal effect should have been published in the Gazette and it should be in the public domain.

He submitted that the Supreme Court made its determination of the 20th Amendment and pronounced that certain provisions in the said Bill were inconsistent with the Constitution and if it were to be enacted, it had to be passed by a two-third majority in Parliament.

He said the Government conveniently ignored the said Bill and inserted the Clauses in another Amendment Bill for Provincial Council.

He complained that in the proposed original Bill for 30% of female candidates in the nomination list, one page is removed and 21 new Clauses were inserted. He claimed that as such it was a new Bill and needed to be published in the gazette as a new Bill for people who were the depository of franchise and legislative power.

He said that in the country, the constitution includes the franchise of the people, the right to vote, and the people were denied their franchise.

He said that something had been concocted in the Bill and the people had no notice on the proposed law.

The intervenient petitioners and the Attorney General were directed to field their objections and the Court reserved its order on the preliminary objection on the maintainability of the petition filed by Sarath N. Silva.

Additional Solicitor General Sanjay Rajaratnam appearing for the Attorney General raised three preliminary Objections on the maintainability of Sarath N. Silva’s Fundamental Rights on the ground of suppression of material facts, no jurisdiction and the Parliamentary Powers and Privileges Act.

He also pointed out that the petition did not mention in the threshold caption under which article he was coming to Court. He said if it was a Fundamental Rights petition, he should seek administrative and executive reliefs but in his petition he was seeking a declaration from the Court that the Speaker was not empowered by law to certify the said Bill which was passed at the 2nd Reading by Parliament and that the Speaker was stopped in law from endorsing a certificate on such amended Bill as having been duly passed in Parliament.

He said the Petitioner was challenging the validity of certification by the Speaker and the legislative process

He brought to cognisance that the Bill was certified by the Speaker on 22 September and the Petitioner filed his petition on 28 September so he had suppressed the material fact.

M.A. Sumanthiran PC in his submission stated that the Supreme Court had no jurisdiction to hear or to determine the said application.

He said that this application could not be entertained as it was a matter of Parliament wherein there is the Parliamentary Powers and Privileges Act.

He cited the judgment delivered by the three-judge Bench including Chief Justice Sarath N Silva.

In the judgment delivered on “Monetary law (Amendment) Act and Inland Revenue (Special Provisions) Bill, he stated that Citizen Silva in this petition who was the then Chief Justice pronounced that the petitioners were bound by the preclusive Clause and could not invoke the jurisdiction of this Court in respect of the validity of the Acts of Parliament and that the petitioners were seeking to indirectly achieve the result by challenging the Bills which preceded the respective Acts of Parliament.

He submitted that the former Chief Justice had ruled that therefore the petitioners could not circumvent the preclusive Clause as contained in Article 80(3) in respect of the Acts of Parliament by seeking to challenge the validity of the provisions of the Bill which preceded those Acts of Parliament.

Court fixed for 19 September the hearing of the further submission of the intervenient petitioners.

Suren Fernando instructed by G.G. Arulpragasam appearing for Intervenient Hashim Kabir MP submitted that the petitioner Silva was indirectly attempting to challenge the legislative process, an act which was expressly prohibited in terms of the Constitution.

He contended that which was in effect to violate the very Constitution which the Supreme Court judges were sworn to uphold and defend.

He submitted that the Bill was certified by the Speaker on 22 September (six days prior to the petitioner filing his petition), its validity could not be challenged on any ground whatsoever in accordance with the Constitution.

He said in terms of the Constitution, the constitutional validity of any provision of an Act of Parliament could not be called in question after the certification of the President or the Speaker was given.

He contended that affairs of Parliament were to be regulated by the House itself and the Court should not interfere in these matters.

He submitted the judicial power of the people was to be exercised by Parliament with regard to matters relating to privileges, immunities and powers of Parliament.

He pointed out that the petitioner’s onslaught on the Attorney General was unfounded, malicious and misconceived in fact and law.

He said if this petition was to be allowed, it would open the doors for any person to challenge Acts passed by Parliament, by circuitous means.

He submitted it was akin to what Chief Justice Sarath N. Silva had held when he nullified the merger of the Northern and Eastern Provinces on similar grounds.

Former Chief Justice Sarath Nanda Silva filed his Fundamental Rights violation petition challenging the enactment of the Provincial Council Elections Amendment Bill.

The former Chief Justice cited the Attorney General Jayantha Jayasuriya PC, the Speaker of Parliament Karu Jayasuriya and the Chairman and members of the Elections Commission as respondents charging that at the Committee Stage of enacting the Bill, all the operative Clauses of the published Bill passed at the Second Reading of the Bill were deleted and an entirely new set of provisions had been introduced.