Side wind should not deprive people’s rights, laments petitioner against Expropriation Bill

By S.S. Selvanayagam

The exercise of the Constitutional right by a citizen to be heard by the Supreme Court cannot be deprived by a side wind by merely arbitrarily ‘rubber stamping’ a bill as an ‘urgent bill’ by the Cabinet of Ministers who do not have unfettered powers.

So laments a public interest activist cum consultant in his fundamental rights petition challenging the impugned Expropriation Bill titled ‘Revival of Underperforming Enterprises and Underutilised Assets’ presented to Parliament on 8 November.

Petitioner Nihal Sri Ameresekere in his petition filed yesterday (14) cited the incumbent Attorney General as representing Finance Minister Mahinda Rajapaksa as well as Economic Development Minister Basil Rajapaksa, Secretary to the Finance Ministry and the Treasury as well as the Ministry of Economic Development P.B. Jayasundera and External Affairs Minister G.L. Peiris as Respondents.

He also cited former Attorneys General C.R. de Silva and Mohan Peiris, who is presently Advisor to the Cabinet of Ministers as well as Justice Minister Rauff Hakeem, Ministry Secretary Suhada Gamalath and Speaker Chamal Rajapaksa as Respondents.

He filed this application for himself and for and on behalf of and in the interest of the people of the country exercising Constitutional rights to prevent the alienation of the sovereignty of the people, which is inalienable, and to secure and advance the fundamental rights of the people guaranteed by the Constitution.

He claims he also filed this application as a shareholder/stakeholder of Hotel Developers (Lanka) PLC described as the only ‘underperforming enterprise’ under schedule 1 to the impugned bill.

                         

He reiterates Article 3 and the Article 4 of the Constitution enshrining that the sovereignty is in the people as inalienable and that the sovereignty of the people shall be exercised by the legislative power of the people, the executive power of the people and the judicial power of the people.

He underlines that the Article 4(d) of the Constitution enshrining that the fundamental rights shall be respected, secured and advance by all organs of Government including all those who had taken oath to uphold and defend the Constitution and shall not be abridged, restricted or denied.

He draws the attention of the Supreme Court that it is the judiciary that is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective and that the Constitution does not attribute any unfettered discretion or authority to any organ or body established under the Constitution and contends that the foregoing would apply with equal force to the Cabinet of Ministers, a body established under the Constitution.

He maintains that the said act of the respondents had consciously, intentionally and deliberately alienated the sovereignty of the people in the exercise of the judicial power of the people and precluding the Supreme Court from hearing the people in the enactment of laws, as provided for in the Constitution.

He expresses concerns that this gives rise to the cogent question as to whether there was apprehension that the Determinations of the Supreme Court would have been otherwise had the voice of the people been heard.

The Directive Principles of State policy shall guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society, he states.

The State Police reckons that the State is pledged to establish in Sri Lanka a democratic socialist society, the objectives of which include inter alia (a) the full realisation of the fundamental rights and freedoms of all persons; (b) the rapid development of the whole country by means of public and private economic activity and by laws prescribing such planning and controls as may be expedient for directing and co-ordinating such public and private economic activity towards social objectives and the public wealth; (c) the equitable distribution among all citizens of the material resources of the community and the social product, so as best to subserve the common good; (d) the establishment of a just social order in which the means of production, distribution and exchange are not concentrated and centralised in the State, State agencies or in the hands of a privileged few, but are dispersed among, and owned by, all the people of Sri Lanka

The said policy also reckons that the State shall strengthen and broaden the democratic structure of Government and the democratic rights of the people by decentralising the administration and by affording all possible opportunities to the people to participate at every level in national life and in government and that the State shall ensure that the operation of the economic system does not result in the concentration of wealth and the means of production to the common detriment, he states.

The exception in Article 122 of the Constitution cannot be abused to alienate the sovereignty of the people as a general norm, since no body under the Constitution has unfettered power, he maintains

The impugned bill tantamounts to the suspension and/or amendment of the Constitution of the country and could not be passed by simple majority of Parliament or otherwise, he reiterates.

The bill has been passed by a simple majority of Parliament on the premise of the Determination made by the Supreme Court, with the people having precluded from being heard, he alleges.

The bill is not yet law and exceptional circumstances would warrant exceptional remedy to defend and uphold the Constitution and to enforce the rule of law, the very basis of the Constitution of the country, he contends.

Petitioner is seeking the Court to declare that the conduct and actions of some of the Respondents have violated the fundamental rights to equality and equal protection of the law as well as the freedom from punishment and prohibition of retroactive penal legislation of the Petitioner guaranteed under the Constitution.

He is asking the Court to declare that the impugned bill is obnoxious arbitrary, harsh, oppressive and unconscionable law and ought to be struck down.

He is seeking a declaration from the Court that one or more provisions of the bill are inconsistent with the Constitution and cannot be passed by a simple majority.

He is asking a declaration that one or more provisions of the bill tantamount to the suspension and/or amendment of Constitution.

He is seeking the Court to declare that one or more provisions of the bill are prohibited from being enacted into law, particularly in the context of the sovereignty of the people being inalienable and Article 75 of the Constitution.

He is pleading for interim orders from the Court to prevent a miscarriage of justice and a violation of the Constitution, which is under oath to be upheld and defended.