Nihal’s FR Application on the Expropriation Law

In the public interest to create awareness of the issues involved, the FT will continue to publish extracts adapted from the Petition filed by public interest activist Nihal Sri Ameresekere on the Expropriation Law. The Supreme Court has directed that Notices be issued on the Respondents and Notices have been issued and the Case listed for January 26.

Notices have been issued on Minister of Finance, Mahinda Rajapaksa, Minister of Economic Development, Basil Rajapaksa, Secretary, Ministry of Finance, P.B. Jayasundera, Minister of External Affairs G.L. Peiris, former Attorney General C.R. de Silva, former Attorney General Mohan Peiris, Advisor to the Cabinet, Minister of Justice Rauf Hakeem, Secretary Ministry of Justice, Suhadha Gamalath, Speaker of Parliament, Chamal Rajapaksa and Attorney General.

Part 1, comprising paragraphs 14 to 18 of the Petition, was published in the Daily FT of 17 January 2012. Part 2 comprising paragraphs 4 to 9 of the Petition was published in the Daily FT of 18 January 2012. Given below are adapted extracts from paragraphs 10, 11, 12, 13 and 22 of the Petition



10. The Petitioner reiterates

a) Articles 3 and 4 of the Constitution of the country enshrining that the sovereignty is in the people, and is inalienable and that the sovereignty of the people shall be exercised by the

• legislative power of the people,
• executive power of the people, and
• the judicial power of the people

b)Article 4(d) mandates that fundamental rights shall be respected, secured and advanced by all organs of Government i.e. legislature, executive and judiciary, (i.e. including all those who had taken an Oath to uphold and defend the Constitution), and shall not be abridged, restricted or denied, except as provided for in Article 14 of the Constitution.

C)The interpretation of the foregoing Articles 3 and 4 of the Constitution had been comprehensively dealt with in the Determinations made in October 2002 by the aforesaid 7 Judge Bench of Your Ladyships’ Court, on the aborted 18th and 19th Amendments to the Constitution, and the following further extracts are cited therefrom: (Emphasis added)

• “Therefore, shorn of all flourishes of Constitutional Law and of political theory, on a plain interpretation of the relevant Articles of the Constitution, it could be stated that any power that is attributed by the Constitution to one organ of government cannot be transferred to another organ of government or relinquished or removed from that organ of government; and any such transfer, relinquishment or removal would be an “alienation” of sovereignty which is inconsistent with Article 3 read together with Article 4 of the Constitution”.
  
   
• It necessarily follows that the balance that had been struck between the three organs of government in relation to the power that is attributed to each such organ, has to be preserved if the Constitution itself is to be sustained”
  
   
• The transfer of a power which attributed by the Constitution to one organ of government to another; or the relinquishment or removal of such power, would be an alienation of sovereignty inconsistent with Article 3 read with Article 4 of the Constitution”
  
   
• The power that constitutes a check, attributed to one organ of government in relation to another, has to be seen at all times and exercised, where necessary, in trust for the People. This is not a novel concept. The basic premise of Public Law is that power is held in trust. From the perspective of Administrative Law in England, the ‘trust” that is implicit in the conferment of power has been stated as follows:     

‘Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely – that is to say, it can validly be used only in the right and proper way with Parliament when conferring it is presumed to have intended” – (Administrative Law 8th Ed. 2000 – H.W.R. Wade and C.F. Forsyth p, 356) ‘ “     

22 f) The fact that judicial power was being exercised to adjudicate upon a Winding-up Application filed 5 years ago by the Petitioner to wind-up Hotel Developers (Lanka) PLC, itemised under Schedule 1 to the Law, as the only ‘Underperforming Enterprise’, inter-alia, had been brought to the attention of the Speaker, 9th Respondent, by Member of Parliament, M.A. Sumanthiran, Attorney-at-Law, as per Hansard Column 1055 of 9.11.2011, and as a Member of Parliament stating that this Bill, as an ‘Urgent Bill’, had been hurriedly and secretly dealt with, as borne out in Hansard Column 1056.

“There was a Ruling given by the Hon. Speaker with regard to the rule of sub judice, citing a previous Ruling by one of his predecessors, the Hon. M.H. Mohamed, in which he says it is possible for somebody, merely to stall the debate in this House, to file a plaint the previous day. That is true. There has been a plaint filed, even in this case, yesterday. But, I am not talking about what was filed yesterday; I am talking about what was filed five years ago. What is pertinent to the matter under discussion is that what was filed five years ago is a matter of winding up of a company on the basis that the company has failed. So, if the task of judicial determination has been given to the Judiciary and if we respect the rule, if we respect the separation of powers in our Constitution, then this House ought not to take this up and pronounce upon a matter that is entirely within the competence of the court.

Sir, I would also urge you to look at the definitions of underutilised assets and an underperforming enterprise. These have been designed, these have been tailored to suit what later appears in the Schedule. That is why I said this is an ad hominem legislation. In previous instances, Sir, you will be aware that even the Privy Council has ruled out as bad, any legislation that was recognised to be ad hominem and ad hoc. This is a classic example of what an ad homiem legislation is because it even spells out by name, the enterprises that are said to have underutilised the assets and the enterprises that are underperforming. It is outside the competence of the Legislature to pass laws like this. Now, one might cite the Determination given by the Supreme Court hurriedly when the matter was referred as an urgent Bill. I do not want to talk about the decision to refer it as an urgent Bill. The less said of that, the better. I do not think anybody can argue and justify this matter being referred as an urgent Bill. The only argument that can be put forward is that it is a matter for the Cabinet. Yes, we know it is a matter for the Cabinet but the Cabinet has abused that power in referring this matter as an urgent Bill to the Supreme Court. When one reads this Determination, one is sad for the Supreme Court; for what the Supreme Court has been reduced to, at how they have pronounced upon this Bill without any material whatsoever placed before them. How can the Supreme Court like this Legislature, rule on whether a particular enterprise is underperforming or not without examining the accounts of that enterprise, without examining other material? In one hearing, at which only the Attorney-General appears and is said to have assisted it, the Court has come to a ruling that 37 enterprises have, in fact, underutilised assets and one of them is an underperforming enterprise. It is a sad indictment on the highest court of the land. I am saddened by the fact that I am also an officer of that Court and have been prevented from assisting it in the determination of this because it was an urgent Bill and hurriedly and secretively taken up for hearing. “



g) The Speaker, 9th Respondent had failed and neglected to make a ruling on the material fact that judicial power was being exercised by the judiciary adjudicating upon the Application filed by the Petitioner 5 years back on 17.11.2006 to wind-up Hotel Developers (Lanka) PLC.



h)M.A. Sumanthiran, Attorney-at-Law had appeared for a Petitioner in Your Ladyships’ Court in SC (SD) No. 3/2011 referred to at paragraph 17 hereinbefore, where Your Ladyship’s Court Determined that the Bill referred to therein was inconsistent with the Constitution.



11.    Attention of Your Ladyships’ Court is very respectfully drawn to the following:

a)It is the judiciary which 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’, the very basis of the Constitution, meaningful and effective

b)Thus its stands to logical reason, that the judiciary, itself, must in the first instance, strictly operate within the limits of the law, upholding the ‘rule of law’.

c)The Constitution does not attribute any unfettered discretion or authority to any organ or body established under the Constitution.

d)The foregoing would apply with equal force to the Cabinet of Ministers, a body established under the Constitution, and also to public functionaries, including the Respondents.

12.    d)    In SC Reference 1/2004 re – the perverse Tax Amnesty of 2003, the Petitioner appearing in person made extensive submissions. Consequently, the foregoing Determination by the 3 Judge Bench, that none of the provisions of the Bill were inconsistent with the Constitution was completely overturned, with a 5 Judge Bench of Your Ladyships’ Court, presided by His Lordship then Chief Justice Sarath N. Silva and comprising His Lordship former Chief Justice J.A.N. De Silva, and Your Ladyship, Chief Justice Shirani A Bandaranayake, and Their Lordships Justices H.S. Yapa, and Nihal Jayasinghe, pronounced the provisions of the said Act , inter-alia, (Emphasis added)

• to be ‘inimical to the rule of law’, and
• to have ‘violated the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights’, and
• in terms of which ‘amnesties had been granted to those who had contravened laws, and thereby defrauded public revenue causing extensive loss to the State’.

13. In SC (SD) Nos. 22 & 23 of 2003 challenging the Amendments to the ‘Recovery of Loans by Banks (Special Provisions) Act No. 4 of 1990’, and ‘Debt Recovery (Special provisions) Act No. 2 of 1990’, in which the Petitioner appeared in person and made submissions, a 5-Judge Bench of Your Ladyships’ Court, presided by His Lordship then Chief Justice Sarath N. Silva, and comprising His Lordship former Chief Justice J.A.N. de Silva and Their Lordships Justices P. Edussuriya, H.S. Yapa, and T.B. Weerasuriya, inter-alia, giving reference to the dicta in the several Judgments of the Indian Supreme Court, determined, inter-alia, that -

• “the principle therefore is that the Court will strike down harsh, oppressive and unconscionable law prescribing a procedure other than the ordinary procedure” – H.M. Seervai ‘Constitutional Law of India’ 4th Edition – Vol 1, Page 532 (Emphasis added)
• the said Amendments had ‘denied the right to equality enshrined in Article 12(1) of the Constitution’ and had ‘denied the right to access the judiciary in terms of Article 105(1) of the Constitution’.

22. a)     In terms of Article 82(3) of the Constitution it is the onus of the Speaker, 9th Respondent, to ensure that Bills presented to Parliament are in conformity with Articles 82(1) and 82(2) of the Constitution, prior to Bills being placed on the Order Paper of Parliament and/or proceeded with.

“82.(1)No Bill for the amendment of any provision of the Constitution shall be placed on the Order Paper of Parliament, unless the provision to be repealed, altered or added, and consequential amendments, if any, are expressly specified in the Bill and is described in the long title thereof as being an Act for the amendment of the Constitution.



(2) No Bill for the repeal of the Constitution shall be placed on the Order Paper of Parliament unless the Bill contains provisions replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of the Constitution.

(3) If in the opinion of the Speaker, a Bill does not comply with the requirements of paragraph (1) or paragraph (2) of this .Article, he shall direct that such Bill be not proceeded with unless it is amended so as to comply with those requirements.”    



i)Speaker, 9th Respondent also stands mandatorily bounden in duty, in upholding and defending the Constitution, to ensure that fundamental rights shall be respected, secured and advanced and shall not be breached, restricted or denied, as enshrined in Article 4(d) of the Constitution.



J)Determination made by Your Ladyships’ Court in SC (SD) No. 3/2011 referred to at paragraph 17 hereinbefore gives rise to the question, as to whether such act of placing the Bill under reference in the Order Paper of Parliament was without due consideration, as warranted, under the Constitution.



k)In the instant Case, the Petitioner by Letter dated 8.11.2011 (faxed and hand delivered) had delivered on 8.11.2011 before the debate in Parliament on the aforesaid Bill (“X6(b)”) on 9.11.2011, putting the Speaker, 9th Respondent, on notice of the constitutional limitations, particularly give reference to the aforesaid two Determinations made in October 2002 by a 7 Judge Bench of Your Ladyships’ Court.



Article 84 of the Constitution deals with Bills inconsistent with the Constitution as follows:

“ 84.    (3) Such a Bill when enacted into law, shall not, and shall not be deemed to, amend, repeal or replace the Constitution or any provision thereof, and shall not be so interpreted or construed, and may thereafter be repealed by a majority of the votes of the Members present and voting.”