Nihal Sri files application before SC to re-examine Expropriation Bill

By S.S. Selvanayagam

Public interest activist Nihal Sri Ameresekere yesterday (17) filed an application before the Supreme Court seeking to re-examine and determine upon the Constitutionality of the provisions of the bill titled ‘An Act to provide for the vesting in the Government identified Underperforming Enterprises and Underutilised Assets’.

He seeks a Fuller Bench of the Supreme Court to re-examine the said bill printed as ‘Revival of Underperforming Enterprises and Underutilised Assets’.

He is seeking the Supreme Court to exercise its inherent powers to have the determination made on the above titled bill by a three-member Bench of the Supreme Court sitting on 24 October.

He, presenting his petition in the national and public interest in upholding the Constitution of the country and the rule of law, the very basis of the Constitution wherein it is enshrined that the sovereignty is in the people, and is inalienable, cited the Attorney General and the Speaker Chamal Rajapaksa as Respondents.

He, in his petition for special determination, seeks the Court to set aside the Determination made by a three-member Bench of the Supreme Court and have the said bill reviewed, re-examined and determined by a Fuller Bench, and forward such Determination to the Speaker.

He is asking the Court to determine that one or more of the provisions of the bill is/are inconsistent with the provisions of the Constitution and requires/require a special majority in Parliament to become law.

He seeks a determination from the Court that one or more of the provisions of the bill is/are inconsistent with the provisions of the Constitution and requires/require a special majority in Parliament and approval by the people at a referendum to become law.

He asks for another determination that one or more of the provisions of the bill could not be legitimately passed by Parliament to become law in view of the specific prohibitions/bars contained in the Constitution.

He seeks the Court to determine that one or more of the provisions of the impugned bill is/are obnoxious, arbitrary, harsh, oppressive and unconscionable law, and ought to be struck down.

He asks the Court to determine that one or more of the provisions of the bill in effect amends/amend provisions of the Constitution, without having adhered to the specific Constitutional procedures, therefore the Speaker ought not proceed with the bill.

He asks the Court to make just and equitable Interim Orders as to the Court shall meet in the given circumstances, to prevent a miscarriage of justice and a violation of the Constitution, which is under oath to be upheld and defended.

He states that notwithstanding that a Seven-Judge Bench of the Supreme Court had determined in October 2002 that nobody established under the Constitution had any unfettered powers.

He adds that the Cabinet of Ministers having acted arbitrarily, had referred the aforementioned bill, purportedly as un-Urgent Bill, consequently the Supreme Court sitting on 24 October had made a Determination, assisted by only by a Deputy Solicitor General, representing the Attorney General.

Such procedure 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 the Supreme Court, in making the aforesaid Determination, ironically exercising the judicial power of the people, and of none other, he alleges.

He points out that even thereafter, the aforesaid Determination of the Supreme Court had been tabled by the Speaker in the Parliament only on 8 November 2011, the day before the bill was debated in Parliament.

He states that in terms of the Constitution, more particularly Articles 79, 82 (1)  and 82 (3), it is the onus of the Speaker to ensure that bills presented to Parliament are in conformity with the constitutional mandates, procedures, limitations and prohibitions, and are within the scope of the ‘limited legislative power’ conferred by the people on Parliament to be exercised in trust on their behalf, without the alienation of their sovereignty, which is inalienable (Article 3, read with Article 4 (a)), prior to bills being placed on the Order Paper of Parliament, and/or proceeded with and/or certified.

He further states that the Speaker has not yet endorsed his Certificate on the aforesaid bill Z2(b), in terms of Article 79 of the Constitution certifying that it had been “duly passed by Parliament”, and thus the re-examination of the above Determination Z2(a) vis-à-vis the bill Z2(b)  and the invocation of the jurisdiction of the Supreme Court therefore is, in any event not ousted under Article 80 (3) of the Constitution.  

He contends that the Schedules to the bill are ad hominem and had been selected without due process, procedure and/or criteria.

He states that the establishment of a just social order in which the means of production, distribution and exchange are not concentrated and centralised in the State, State agencies or in the hands of a privileged few, but are dispersed among, and owned by, all the People of Sri Lanka.

The impugned bill tantamount to the suspension and/or amendment of the Constitution of the country and could not be passed by simple majority of Parliament or otherwise, he maintains.

The bill has been passed by a simple majority of Parliament solely on the premise of the Determination made per-incuriam by the Supreme Court, based on the ‘representations’ made to the Supreme Court by the Attorney General, with the people having been precluded from being heard, he alleged.

The bill is not yet law, and exceptional circumstances would warrant exceptional remedies to defend and uphold the Constitution and to enforce the Rule of Law, the very basis of the Constitution, which is under oath to be upheld and defended, he contends.

The Petitioner bring to the cognisance of the Court that he within the stipulated period of 7 days challenged, under and in terms of Article 121 of the Constitution, the Inland Revenue (Special Provisions) (Amendment) Bill gazetted on 11 July 2003, and a three Judge Bench of the Supreme Court in SC (SD) Nos. 20 & 21/2003 made the Determination on 7 August 2003, that none of the provisions of the bill were inconsistent with any provisions of the Constitution.

Subsequently, he made an Application for a re-examination and determination by a Fuller Bench of the Supreme Court, and the said Application was referred to the three Judges, who delivered the aforesaid Determination, who had minuted the view that ‘no useful purpose would be served in a further hearing’.  

Consequently, he having persuaded the then President to refer the same under Article 129 of the Constitution for an Opinion of the Supreme Court, whereat he  appearing in person made extensive submissions, the foregoing Determination by the three Judge Bench, that none of the provisions of the bill were inconsistent with the Constitution was completely overturned, with a five Judge Bench of the Supreme Court, presided by then  Chief Justice Sarath N. Silva, and comprising Chief Justice Shirani A. Bandaranayake, and Justices H.S. Yapa, J.A. de Silva and Nihal Jayasinghe, pronouncing the provisions of the said bill, inter-alia, 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 that amnesties had been granted to those who had contravened laws and thereby defrauded public revenue causing extensive loss to the State.

On the wave of public opinion on the foregoing, the People’s Alliance having won the general election of April 2004, promptly presented a Bill to repeal the obnoxious features of the foregoing perverse law. A three Judge Bench of the Supreme Court in SC (SD) No. 26 of 2004 endorsed the aforesaid castigations made by the five Judge Bench.  

The Petitioner also draws the attention of the Supreme Court to the following, among other grounds, to be urged at the Hearing (reference to the Bill is Z2(b)):

The facts pertaining to Hotel Developers Lanka PLC (HDL) in Schedule 1 of the bill had not been correctly disclosed to Your Ladyship’s Court, whilst material facts had been suppressed, in seeking a Determination by the Attorney General, who had appeared to represent the State in a Winding-up Application of HDL viz Z3(c).

Thereby, the  Attorney General has misled Your Ladyship’s Court to state in the Determination that the Bill contains no provisions for the exercise of the judicial power or interference in exercise of judicial power in relation to ‘underperforming enterprise’ (HDL), whilst in actual fact judicial power was being exercised, which however was being stultified by the Attorney General.

The Supreme Court citing of an Indian judgment has correctly stated that the classification must be on intelligible differentia for specified groups. Admittedly there has not been any intelligible differentia, whatsoever, placed before Your Ladyship’s Court by the Attorney General. What had been placed is a mere list of names and not intelligible differentia for specified groups.   

The Schedules to the bill are ad hominem and had been selected without due process, procedure and/or criteria. The Privy Council in Liyanage v. Queen (PC Appeal No. 23 of 1965) held such to be ultra-vires and invalid. This was even before the guarantee of equality before the law and equal protection before the law being enshrined in the 1978 Constitution.

The Supreme Court in SC (FR) 158/2007 and 209/2007 annulled two perverse privatisations taking cognisance of the submissions made by the Petitioner, having heard the affected parties; and subsequently even raising the question, as to whether all relevant documents had adduced before the Supreme Court ?

The exception in Article 122 of the Constitution cannot be abused, as a general norm to alienate the sovereignty of the people, which is inalienable, since no body established under the Constitution has unfettered power - vide ‘dicta’ of a 7-Judge Bench of the Supreme Court

The Directive Principles of State Policy and the Fundamental Duties in Articles 27 and 28 must be taken in its entirety and not in isolation. For instance attention is drawn to the following:

Articles 27( 2) -The State is pledged to establish in Sri Lanka a democratic socialist society, the objectives of which include- (a) the full realisation of the fundamental rights and freedoms of all persons; (f) the establishment of a just social order in which the means of production, distribution and exchange are not concentrated and centralised in the State, State agencies or in the hands of a privileged few, but are dispersed among, and owned by, all the People of Sri Lanka; Article 27 (4) The State shall strengthen and broaden the democratic structure of government and the democratic rights of the People by decentralising the administration and by affording all possible opportunities to the People to participate at every level in national life and in government. Article 27 (6) The State shall ensure equality of opportunity to citizens, so that no citizen shall suffer any disability on the ground of race, religion, language, caste, sex, political opinion or occupation.

In SC (FR) 209/2007, the Supreme Court citing the relevant constitutional provisions therein exhaustively spelt out and adjudicated that Land was a matter, which came within the powers of a Provincial Council and was governed by the stipulations in Article 154 of the Constitution. Hence, the question arises, as to whether a bill could be presented containing provisions infringing upon Article 154 of the Constitution and tantamount to contravention thereof?

He alleges the bill is harsh, oppressive and unconscionable law, prescribing a procedure other than the ordinary procedure, which ought have been struck down - vide ‘dicta’ of a five Judge Bench of Your Ladyship’s Court viz – Z3(b) and denies the right to access to the judiciary in terms of Article 105 of the Constitution

Article 157 of the Constitution stipulates that – ‘otherwise than in the interest of national security - no written law shall be enacted or made and no executive or administrative action shall be taken, in contravention of the provisions of treaty or agreement,’ he claims.

HDL has foreign Japanese investors known to the Attorney General. There is an Investment Promotion & Protection Agreement between Sri Lanka and Japan signed on 1 March 1982 and ratified on 7 July 1982, having been approved by the Cabinet of Ministers on 21 October 1991 and presented to the Parliament of Sri Lanka on 9 September 1982 by the Foreign Minister - vide Hansard Column 853 of 9 September 1982, he states.

Therefore, the impugned bill tantamount to the suspension and/or amendment of the Constitution of the country and could not be passed by simple majority of Parliament or otherwise, he maintains.

The bill has been passed by a simple majority of Parliament solely on the premise of the Determination made per-incuriam by the Supreme Court, based on the ‘representations’ made to Your Ladyship’s Court by the Attorney General, with the people having been precluded from being heard, he further states.

The bill is not yet law, and exceptional circumstances would warrant exceptional remedies to defend and uphold the Constitution and to enforce the Rule of law, the very basis of the Constitution, which is under oath to be upheld and defended.

The Supreme Court 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 meaningful and effective - vide ‘dicta’ of a seven Judge Bench of the Supreme Court, he adds.

He claims that  he has good, sufficient and valid right , reasons and grounds to invoke the jurisdiction of the Supreme Court seeking to have the Determination (“Z2(a)”) made per-incuriam re-examined, reviewed and determined upon by a Fuller Bench of the Supreme Court and that it could not entirely be a matter of indifference to the Government.

The foregoing well and truly demonstrated the true independence of the judiciary, as a separate organ of the State, and its right to state that ‘the Government can do no wrong,’ he contends.