Nihal’s Fundamental Rights application on Expropriation Law fixed for 26 Jan.

In the public interest to create awareness of the issues involved, the FT will publish extracts 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.

Given below are paragraphs 14 to 18 of the Petition

“14.a) The exercise of the constitutional right by a citizen to be heard by Your Ladyships’ 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.

b) The foregoing had consciously, intentionally and deliberately alienated the sovereignty of the people in the exercise of the judicial power of the people, and precluding Your Ladyships’ Court from hearing the people in the enactment of laws, as provided for in the Constitution; and further denying natural justice to parties affected denying them their right to have been heard.

c) The procedure in terms of Article 122 of the Constitution is solely for an urgent exception and not the rule, and hence such intriguingly questionable and hasty procedure, had been caused to be adopted, thereby intentionally keeping the people, whose sovereignty is inalienable, in the dark, and thereby precluding the people from being heard by Your Ladyships’ Court, in making the aforesaid Determination, exercising the judicial power of the people, and of none other.

The stipulations in Article 123(3) of the Constitution govern a Determination by Your Ladyship’s Court on a Bill referred to Your Ladyship’s Court under Article 122, as an ‘Urgent Bill’.

The foregoing gives rise to the cogent question, as to whether there was apprehension that the Determination of Your Ladyships’ Court would have been otherwise, had the people and/or affected parties had been heard, as was amply demonstrated by

SC Reference 1/2004 referred to aforesaid; and more particularly by

ii)  the recent Determ-ination in SC (SD) No. 3/2011 by Your Ladyships’ Court on the Bill titled ‘Town & Country Planning (Amendment)” referred to at paragraph 17 hereinafter, wherein the people and/or affected parties had been given the opportunity to be heard, since the said Bill had been gazetted in terms of Article 78(1) of the Constitution, as a normal Bill, and not as an ‘Urgent Bill’, whereby such opportunity is denied.

15. a)     The foregoing procedure of an ‘Urgent Bill’ deprived and denied the Petitioner and the people of the country and/or the affected parties, their constitutional right to have been heard by Your Ladyships’ Court on such matter of national and public importance, thereby alienating their sovereignty, which is inalienable and alienating their constitutional rights, and infringing upon their fundamental rights; and denied them the constitutional right in terms of Article 105 of the Constitution to access the judiciary, obnoxiously denying natural justice to the affected parties of their right to have been heard.

b) The Petitioner was able to obtain copies only on 9.11.2011 of the Bill “Revival of Underperforming Enterprises and Under-utilised Assets” and the aforesaid Determination by a 3-Judge Bench of Your Ladyships’ Court on a Bill titled “An Act to provide for the vesting in the Government identified Underperforming Enterprises and Underutilised Assets”, inasmuch as both Documents had been tabled by the Speaker, 9th Respondent in Parliament only on the previous day 8.11.2011, and it was only thereafter the said two Documents were available to the public.

c) Hence, it was an impossibility for any citizen, including the Petitioner, to have appeared in Your Ladyships’ Court to have intervened to be heard, inasmuch as the Bill was not publicly available until it was tabled in Parliament on 8.11.2011, whereas Your Ladyships’ Court had already had an Hearing on 24.10.2011, with the Bill being available secretively only a coterie of a few.

True copies of the Determination on the Bill titled “An Act to provide for the vesting in the Government identified Underperforming Enterprises and Underutilised Assets”, and the Bill titled “Revival of Underperforming Enterprises & Under-utilised Assets” both tabled in Parliament on 8.11.2011 are annexed respectively marked “X6(a)” and “X6(b)”, pleaded as part and parcel hereof

16. a)    The Petitioner most respectfully submits that Your Ladyship the Chief Justice’s following Minute made on 22.11.2011 in respect of the Petitioner’s Application SC (SD) No. 2/2011 filed on 17.11.2011, with His Lordship Justice P.A. Ratnayake and Her Ladyship Chandra Ekanayake agreeing, viz:

“The Determination by this Court was with regard to the Bill and any party that had wanted to intervene should have done so at the time, it was taken before the Supreme Court.”

was per-incuriam

When a Bill is referred to Your Ladyships’ Court, as an Urgent Bill, under Article 122(1) of the Constitution, such Bill is not gazetted in terms of Article 78(1) of the Constitution, and the aforesaid Bill was not gazetted under Article 78(1) of the Constitution at least 7 days before it was placed on the Order Paper of Parliament. The Bill itself bears the date 8.11.2011 and was passed by Parliament on 9.11.2011.

With utmost respect the Petitioner submits that Your Ladyships’ Court had been under the mistaken belief, that the Bill was publicly available for anyone to have intervened, when it was not the case.

Hence, it was an impossibility for the Petitioner or any other citizen to have intervened to have been heard by Your Ladyships’ Court, as per the facts set out in paragraph 16(a) hereinbelow.

If ‘any party could have intervened’, then as amply evidenced by the several Petitions filed subsequently in Your Ladyships’ Court, and the several Letters addressed by certain affected parties published in the media, then such parties most certainly would have intervened in Your Ladyships’ Court.

At the said Hearing, Your Ladyships’ Court had been assisted only by the Deputy Solicitor General, representing the Attorney General.

a) The haste and secrecy in which this Bill had been processed to be enacted into law is revealed by the following;

Certified by the Cabinet of Ministers, as an Urgent Bill under Article 122(1) of the Constitution on Wednesday, 19.10.2011 (Cabinet Meeting generally are held late evenings) and referred to Your Ladyship’s Court

As per the Minutes of the Record in Your Ladyship’s Court the said ‘Urgent Bill’ had been received on Friday, 21.10.2011.

Hearing by Your Ladyship’s Court on the matter of the said ‘Urgent Bill’ had been had on Monday, 24.10.2011 assisted only by the Attorney General.

The aforesaid Hearing numbered SC (SD) 2/2011 had not been listed in the list of Cases published in the media to be heard by Your Ladyship’s Court on Monday, 24.10.2011.

True copies of the Reports in the Daily News and Daily Mirror of Monday 24.10.2011 are annexed marked together as “X7” pleaded as part and parcel hereof

Even if the matter had been listed, the public would not know that the said specific ‘Urgent Bill’ was being heard into by Your Ladyship’s Court, and the provisions thereof unknown to the public.

Speaker, 9th Respondent, tabled in Parliament the aforesaid Determination SC (SD) No. 2/2011 only on 8.11.2011

Speaker 9th Respondent, tabled in Parliament the aforesaid Bill only on 8.11.2011

On the basis of the aforesaid Determination in SC (SD) No. 2/2011, the Bill, with 15 Committee Stage Amendments, was passed by Parliament on 9.11.2011,

Speaker, 9th Respondent had certified the Bill into law on 11.11.2011, (just two days after the Bill with 15 Committee Stage Amendments, was passed by the Parliament on 9.11.2011)

Speaker, 9th Respondent’s aforesaid certification had been announced to Parliament only on 22.11.2011, as per Hansard Column 203 of that date.

The Petitioner had assisted in formulating and processing the enactment of Bills into law, interacting with the Departments of the Attorney General and Legal Draftsman. Two such instances were the enactment of the Companies Act No. 7 of 2007 and the Inland Revenue (Regulation of Amnesty) Act No. 10 of 2004.

The Inland Revenue (Regulation of Amnesty) Act No. 10 of 2004 on a matter of national and public importance had been processed as follows:

Certified by the Cabinet of Ministers, as an Urgent Bill under Article 122(1) of the Constitution on 16.8.2004 and referred to Your Ladyships’ Court

Hearing thereinto was had by Your Ladyships’ Court on 23.8.2004 assisted only by the Attorney General.

Bill was presented to Parliament on 7.9.2004

Parliament debated and with 14 Committee Stage Amendments passed the Bill on 22.9.2004

Bill was certified into law by the Speaker on 20.10.2004

18.    a)     Recently a Bill titled – “Town & Country Planning (Amendment)” was gazetted on 14.10.2011 in terms of Article 78(1) of the Constitution, as a normal Bill and placed on the Order Paper of Parliament on 8.11.2011.

b)    This enabled citizens to intervene and make submissions at the Hearing before Your Ladyships’ Court on 21.11.2011.

c)    Your Ladyships’ Court in SC (SD) No. 3/2011 Determined that the Bill was inconsistent with the Constitution, and further determined that, as the Bill had been placed in the Order Paper of Parliament, without compliance with provisions of Article 154(G)(3) of the Constitution, that no Determination would be made on the other grounds of challenge, which Determination communicated to the Speaker, 9th Respondent on 2.12.2011, had been tabled in Parliament on the next day 3.12.2011.

In the aforesaid Determination in SC (SD) No. 3/2011, Your Ladyship’s Court in respect of the subject of Land specifically, inter-alia, determined as follows: (Emphasis added)

“There was no submissions made by the Learned Deputy Solicitor General to the effect that the Bill under reference has been referred by His Excellency the President to the Provincial Councils, as stipulated in Article 154(G)(3) of the Constitution.

Since such procedure has not been complied with, we make a Determination in terms of Article 120, read with Article 123, of the Constitution that Bill in question is in respect of a matter set out in the Provincial Council List and shall not become law unless it had been referred by His Excellency the President to every Provincial Council as required by Article 154(G)(3) of the Constitution.

As the Bill has been placed in the Order Paper of Parliament without compliance with provisions of Article 154(G)(3) of the Constitution no Determination would be made at this stage on the other grounds of challenge, which were referred to earlier.”

A true copy of the aforesaid Determination in SC (SD) No. 3/2011 is annexed marked “X8(a)”, pleaded as part and parcel hereof

As a consequence the Bill withdrawn by the Government announcing same in Parliament, as was reported in the media.

In SC (FR) Application No. 209/2007 Your Ladyship’s Court delivered Judgment on 21.7.2008 analysing clearly on pages 46 to 50 thereof the constitutional mandate under Article 154 of the Constitution in respect of the alienation or disposition of State Land within a Province specifically holding that –

“alienation or disposition of State Land within a Province shall be done in terms of the applicable law only on the advice of the Provincial Council.”

A true copy of the relevant pages from the certified copy of the aforesaid Judgment is annexed marked “X8(b)”, pleaded as part and parcel hereof.