FR petition filed in SC challenging Expropriation Bill

By S. S. Selvanayagam

A fundamental rights violation petition was filed before the Supreme Court challenging the Bill that is proposed to be passed in Parliament to acquire underperforming enterprises and unutilised assets.

Ven. Thiniyawala Palitha Thero who is the Chief Incumbent of Nalandaramaya Nugegoda as well as the Chennai Maha Bodhi Society of Sri Lanka, filed his petition against the Bill titled “An Act to provide for the vesting in the State identified Underperforming Enterprises and Underutilised Assets.”

He cited P. B. Jayasudnera who is the Secretary of Finance Ministry as well as the Treasury and the Members of the Cabinet of Ministers and the Attorney General as Respondents.

In the Petition filed through Paul Ratnayake Associates, he states that the owners of such assets have not been given an opportunity of placing their case prior to deciding that such assets as Underperforming Enterprises and/or Under Utilised Assets.

He states he believes the said Bill was drafted by a private firm of lawyers contrary to the norm where Bills are drafted by the Legal Draftsman’s Department.

He filed this application in order to protect the sovereignty of the people, rule of law, the basic foundation of the fabric of law in this country and the fundamental rights of the citizens of this country.

He pleads there has been a violation and/or an imminent violation of the Petitioner’s fundamental rights and those of other citizens of this country.

He pleads he is unable to obtain the Sinhala copy of the Bill which has been forwarded to the Supreme Court under and in terms of Article 122 of the Constitution with the following notation at the bottom whereas there has however been no urgency whatever and he contends it has been wrongly referred to the Supreme Court under and in terms of Article 122 of the Constitution.

He states he is unaware whether the Sinhala or Tamil copy of the Bill was before the Supreme Court at the time of the reference and at the time of the determination.

He says he is reliably given to understand that the Supreme Court made a determination and forward it as required in terms of the Constitution and that he is unaware of the determination.

He states that by forwarding a Bill in terms of Article 122 of the Constitution, his rights and the rights of the other citizens in terms of Article 121[1] has been purportedly taken away.

He further states that he has the right in terms of Article 121[1] of the Constitution, in that the Bill has been wrongly referred to the Supreme Court in terms of Article 122 of the Constitution.

He maintains the inclusion of the schedules one and two to the Bill is in violation of the rights of the sovereignty of this country, is violation of the rule of law and the fundamental rights of the citizens as well as of his.

He states material facts have not been placed before the Supreme Court and as such, the Supreme Court has been prevented from making an informed decision.

The Minister of Finance and the Cabinet of Ministers acting under the misdirection and/or misrepresentation of facts by the first Respondent has deemed it lawful to take over the Enterprises and Assets morefully listed in the Schedules to the Bill on a purported unilateral decision; without prior notice or warning and/or fair reasoning and/or

fair hearing and in violation of the principles of Natural Justice, the enterprises and assets that the first Respondent alleges to be underperforming enterprises and underutilised assets, he states.

If the question of underperformance or underutilisation be kept open to be decided after a fair hearing then representations could be made to the contrary in as much as some of the companies and their assets referred to in the said second schedule, do not under any circumstances, fall under the definition of ‘underutilised assets’ referred to in the same proposed Bill, he states.

The owners of such assets have not been given an opportunity of placing their case prior to deciding that such assets as Underperforming Enterprises and/or Under Utilised Assets; there has been a breach of the rules of natural justice in determining that the schedule contains Underperforming Enterprises and/or Under Utilised Assets, he said.

It is against the basic rule of law and the fundamental rights of the people that there should be included in a schedule predetermined Underperforming Enterprises and/or Under Utilised Assets will vest in the Secretary to the Treasury upon passing of the Bill.

He states that in accordance with the due process, a proper inquiry must be made prior to decisions taken to acquire assets owned by persons/citizens of this country.

He laments the listing out and/or singling out of identified persons and/or entities in an Act of Parliament is contrary to the basic principles of law and against good governance.

He bemoans that taking over assets of this nature could be targeted malice and/or action to take over targeted assets and that the Cabinet of Ministers have been misinformed that the Bill is urgent and the Cabinet of Ministers have acted on inadequate advice.

The government has taken extraordinary measures to prevent the Bill from being accessed by anybody before the 24-hour deadline for the Supreme Court determination lapsed, he alleges.

The lack of transparency and the lack of availability of an opportunity to be informed regarding same effectively prevented any party the raising of any objections against the proposed legislation, he blames.

He pleads that by an amendment to the schedule any other asset of any other citizen could vest in the government without due process of law.

The Bill proposed to be passed, deals with not only the taking over of underperforming enterprises and underutilised assets based on a defined criteria (underperforming and underutilised assets being defined) but also has gone to unilaterally evaluate the identified companies and assets, he alleges.

In the event this Bill is passed it will amount to Parliament not only deciding on policy and applicability of the laws to a identified and/or particular class of persons but also proceeding to deal with the evaluation process of who should be included under the said criteria, he points out.

This Bill would empower the Government to take over any entity that it deems underperforming and/or underutilised without adhering to the basic principles of law and in violation of the fundamental rights of the citizens of the country, he aggrieves.

He alleges the Bill is in violation of the sovereignty of the people, the rule of law, basic grundanoram upon which the laws of this country is based and/or is in violation of the fundamental rights.