Proposal to set up new High Courts unconstitutional: SC

Wednesday, 4 April 2018 00:00 - - {{hitsCtrl.values.hits}}

Govt. given option of amending proposal or passing it with two-thirds P’ment majority

By Ashwin Hemmathagama

Speaker Karu Jayasuriya yesterday notified Parliament of the Supreme Court’s decision that the proposed legislation to establish a High Court trial-at-bar was inconsistent with the Constitution and it would either need to be amended or would have to be passed with a two-thirds parliamentary majority to become law.

The Supreme Court has determined that Section 12A (1) of the Judicature (Amendment) Bill is inconsistent with Article 154P(3)(a) of the Constitution and an amendment is required to be made to the Constitution to give effect to the respective section of the Bill. “However, if the jurisdiction is conferred on the High Court of Provinces under Article 154(P)(3)(C) like in Act No. 10 of 1996 and Act No. 54 of 2006, this amending section will cease to be inconsistent. The amending Section 12A(2) of the Bill requires the Judicial Service Commission to nominate judges to the Permanent High Court at Bar. This is inconsistent with Article 154(P)2 of the Constitution and an amendment is required to be made to the Constitution to give effect to Section 12A(2) of the Bill which requires a two-thirds majority,” stated Speaker Karu Jayasuriya, who read the determination yesterday in Parliament.

“However, if 12A(2) of the Bill is removed and Article 154P(2) remains as it is, this inconsistency will cease. The amending Section 12(A)(7) is inconsistent with Article 12(1) of the Constitution. However, if the Chief Justice is given the power to decide whether to hold a trial-at-bar or not, this amending section will cease to be inconsistent,” added Speaker Jayasuriya, proposing to print the determination in the day’s official report.

Parliament received copies of seven petitions filed in the Supreme Court in relation to the Judicature (Amendment) Bill on 20 March. These petitions were filed on par with Article 121 (1) of the Constitution. The Judicature (Amendment) Bill recently presented in Parliament provides for the establishment of a permanent High Court trial-at-bar to try, hear and determine the trials of offences under the Penal Code, the Money Laundering Act, the Bribery Act, offences against the Public Property Act and several other legislations.

The proposed High Court trial-at-bar shall consist of three judges to be nominated by the Judicial Service Commission from among the judges of the High Court. The new courts shall have jurisdiction in respect to offences committed wholly or partly in Sri Lanka or an offence committed by a citizen of Sri Lanka outside the territory of Sri Lanka or on board a ship or an aircraft. The Minister of Justice will have the power to specify the location of the High Court trial-at-bar and the power to increase the number of such courts. In addition, the Bill provides provisions to hear cases daily.

However, some petitioners, including a few members of the UPFA Joint Opposition, challenged the Bill citing that it would lead to unequal treatment and provide powers to the Minister to specify the location of this permanent High Court trial-at-bar and the Executives such as the Attorney General and the Director General of the Bribery Commission to institute criminal proceedings.