Fresh challenge against SC Special Determination on Expropriation Bill

• Nihal Sri Ameresekere charges determination violates Article 123 (3) of the Constitution pertaining to Urgent Bills
• Application seeks to illustrate judicial bias and disqualification
• Says President had a keen interest in the Urgent Bill

By Dharisha Bastians

Public interest litigator Nihal Sri Ameresekere filed a landmark application in the Supreme Court yesterday seeking to have the Court’s determination pertaining to the Government’s controversial Expropriation Act reviewed and re-examined and declared null and void and having no force in law.

The Under Performing and Under Utilised Assets Act, which allows the Government to expropriate private enterprises arbitrarily, was passed into law on 11 November 2011, after it was submitted to the Supreme Court for a special determination as an Urgent Bill on 20 October 2011.

The Petitioner prays the court to clarify whether the determination made by a three Judge Supreme Court bench on 24 October 2011 on the constitutionality of the Under Performing and Under Utilised Assets Act has violated the ‘deeming’ provision of Article 123 (3) of the Constitution referring to Urgent Bills, whether it is constitutionally null and void and of no force in law and if it has been made under circumstances of perceived judicial bias and disqualification.

Ameresekere has cited the Attorney General and Speaker of Parliament Chamal Rajapaksa as respondents in the case.

The Petitioner argues that a Special Determination on an Urgent Bill submitted under Article 122 of the Constitution is governed by Article 123 (3) of the Constitution which states: “If the Supreme Court entertains a doubt it shall be deemed to have been determined that the Bill or such provision of the Bill is inconsistent with the Constitution.”

“Thereby the Supreme Court stands debarred from determining otherwise, the Supreme Court had no jurisdiction to make any determination ultra-vires the deeming provision of Article 123 (3) of the Constitution and if so made, such determination as in this instance is constitutionally ab-initio null and void and of no force or avail in law,” the Petitioner’s application states.

The petitioner says Article 123 (3) is an inbuilt safeguard and check enshrined within the Constitution regarding Urgent Bills. “It is constitutionally mandated that no doubt, whatsoever, can be entertained by the Supreme Court on an Urgent Bill,” the Petitioner’s application states.

The application cites several clauses of the Supreme Court’s determination on the Underperforming and Under Utilised Assets bill which reveals that several doubts and/or questions had been entertained by the Supreme Court.

In his application the Petitioner states that the case is a catastrophic situation warranting an extraordinary, precedent-setting remedy to both rectify the current Constitutional violation pertaining to the Expropriation Act and stop such legislation under the guise of an Urgent Bill from being attempted to be enacted in the future.

Citing the five Judge bench ruling on the Jeyaraj Fernandopulle Vs. Premachandra De Silva and Others case in Supreme Court, Ameresekere argues that the Supreme Court has inherent powers to correct decisions made per incuriam or ‘through lack of care’.

“A decision will be regarded as given per incuriam if it was in ignorance of some inconsistent statute or binding decision... an order made on wrong facts given to the prejudice of a party will be set aside by way of remedying the injustice caused,” the ruling cited in the application states.

In the application the Petitioner also cites several illustrations of perceived judicial bias and disqualification as also warranting the rescinding or vacating of the Court’s special determination on the Expropriation Act.

Specifically the Petitioner refers to the three Judges making the determination, Chief Justice Shirani Bandaranayake, Justice P.A. Ratnayake and Justice Chandra Ekanayake. The Application refers to the appointment of Pradeep Kariyawasam, husband of the Chief Justice, as Chairman of a State bank, the appointment of Tissa Ekanayake, husband of Justice Chandra Ekanayake, as Parliamentary Ombudsman, and illustrates that President Mahinda Rajapaksa as the Minister of Finance was a keenly interested party in the matter of the Urgent Bill to Expropriate Under Performing and Under Utilised Assets.

“Circumstances and relationships could or may have subsequently changed but what is of relevance are the circumstances and relationships which subsisted prior to and at the relevant time the impugned Special determination was made,” the petitioner says.

In his application, Ameresekere also makes reference to the fact that the Expropriation Act was ad hominem legislation inconsistent with the Constitution because it unilaterally targeted selection of specifically named parties without any transparent survey for identification and devoid any criteria of transparent evaluation.

“The arbitrarily and unilaterally targeted parties have been denied natural justice and access to the judiciary in terms of Article 105 of the Constitution,” the application states.