Ex-CJ contends PC Bill ceased to exist as new sets of provisions brought in

By S.S. Selvanayagam

Former Chief Justice Sarath N. Silva yesterday (9) contended that the Provincial Councils Amendment Bill ceased to exist as its new sets of provisions were brought in.

He was making his submission to support for leave to proceed with his fundamental rights application before the bench comprising Chief Justice Priyasath Dep, Justices B.P. Aluvihara and Nalin Perera.

He submitted that at the third reading, the original Bill passed at the second reading has been totally ignored and purported enactments smuggled in at the Committee Stage have been approved. Thus the Bill passed at the third reading is not the Bill passed at the second reading.

He stated that the Parliament was a depository of the legislative power of the people and it would have been in public but not published and Parliament is an agent of the people.

He submitted that it would have been done according to the Constitution and the Standing Orders of the Parliament. He said the said Bill was not duly passed.

He alleged that it had been done in secrecy and the Attorney General is guilty of it and he is challenging the opinion of the Attorney General.

Additional Solicitor General Sanjay Rajaratnam, appearing for the Attorney General, 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 is coming to Court. He said if it is fundamental rights petition he should seek administrative and executive reliefs but in his petition he is seeking a declaration from the Court that the Speaker is not empowered by law to certify the said Bill which was passed at the Second Reading by Parliament and that the Speaker is stopped in law from endorsing a certificate on such amended Bill as having been duly passed in Parliament.

He said the Petitioner is challenging the validity of certification by the Speaker and the legislative process. He stated that the Bill was certified by the Speaker on 22 September 2017 and the Petitioner filed his petition on 28 September 2017 so he has suppressed the material fact.

 He and the intervenient petitioner M.A. Sumanthiran and other intervenient petitioners pleaded that they be heard before the granting of leave to proceed.

Sumanthiran in his submission stated that the Supreme Court has no jurisdiction to hear or determine the said application.

He said that this application could not be entertained as it is a matter of Parliament wherein there is parliamentary powers and privileges Act.

He cited the judgment delivered by a three-judge bench consisting of former Chief Justice Silva.

In the judgment delivered on the Monetary law (Amendment) Act and Inland Revenue (Special Provisions) Bill, he stated that Silva in this petition, who was the then Chief Justice, pronounced that the petitioners were bound by the preclusive clause and could 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 has ruled that therefore the petitioners cannot 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 October the hearing of the further submission of the intervenient petitioners.

Former Chief Justice Silva filed a fundamental rights violation petition before the Supreme Court challenging the enactment of the Provincial Council Elections Amendment Bill.

The former Chief Justice named 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.

“It appears that this is a total abuse of the legislative process and a negation of the rule of law,” the petitioner pointed out.

He alleges that the Attorney General conveniently washed his hands off the proceedings at the Committee Stage and passed its responsibility to the Speaker who presided as the Chairman of the Committee.