Enactment of PC Amendment Bill SC refuses to grant ex-CJ leave to proceed with FR petition

The Supreme Court yesterday by majority decision refused to grant leave to proceed with the fundamental rights petition filed by former Chief Justice Sarath N. Silva challenging the enactment of the Provincial Council Elections Amendment Bill.

The bench comprised Chief Justice Priyasath Dep, justices Buwaneka Aluvihara and Nalin Perera.

Petitioner Silva had submitted the bill, which is a statement of legal effect, should have been published in the Gazette and it should be in the public domain.

He also 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 was to be enacted, it should be passed by a two-thirds majority in Parliament.

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

He complained that in the proposed original bill for 30% of female candidates on the nomination list, one page was 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 included the franchise of the people which was the right to vote and the people were denied their franchise. He said that in the bill there was something concocted and the people had no notice on the proposed law.

The intervenient petitioners and the Attorney General had filed their preliminary objection on the maintainability of the petition.

Additional Solicitor General Sanjay Rajaratnam, appearing for the Attorney General and the Election Commissioner, raised three preliminary objections on the maintainability of Silva’s fundamental rights on the grounds 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 that 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 Second Reading by Parliament and that the Speaker was prevented by law from endorsing a certificate on such an 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 revealed that the bill was certified by the Speaker on 22 September 2017 and the petitioner filed his petition on 28 September 2017 so he had suppressed the material fact.

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

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

Suren Fernando, instructed by G.G.Arulpragasam, appeared for the Intervenient Hashim Kabir MP.

Former Chief Justice 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 its Second Reading were deleted and an entirely new set of provisions had been introduced.