Nihal’s application for review of SC determination on Expropriation Bill as ultra-vires the Constitu

Nihal Sri Ameresekere, professional consultant, who previously filed Petitions, has filed a further Petition on Tuesday, 8 May 2012, making Application to the Supreme Court for a Fuller Bench to be constituted to review the Determination on the controversial Expropriation Bill, which had been delivered on 24 October 2011 by Chief Justice Shirani Bandaranayake and Justices P.A. Ratnayake and Chandra Ekanayake.

The main ground of Ameresekere’s Application is that in the case of an Urgent Bill referred to the Supreme Court by the Cabinet of Ministers under Article 122 of the Constitution, that the Determination has to be made in terms of Article 123(3) of the Constitution, which stipulates that if the Supreme Court entertains any doubt on the Bill, that the Bill shall be deemed to have been determined as inconsistent with the Constitution. Ameresekere contends that the Determination reveals that the Supreme Court had, in fact, been entertained several doubts.

Ameresekere in his Petition also urges that the Determination had therefore been made per-incuriam ultra-vires Article 123(3) of the Constitution, asserting that the Supreme Court stood constitutionally bound and could not have acted ultra-vires the Constitution.

In addition, the Petition lists several errors in the Determination stating to have been made per-incuriam. Among these errors being that it is violative of Article 17 of UN Universal Declaration of Human Rights, that the subject of land as per several previous Judgments and Determinations of the Supreme Court cited had been adjudicated as a Provincial Council subject, the lack of intelligible differentia gives rise to the question of ad hominem legislation, and further that Article 157 of the Constitution prohibits laws being enacted when there are international agreements in force, except for national security, whilst the Determination had permitted the same for public purpose ultra-vires Article 157 of the Constitution.  

In his Application for a review by a Fuller Bench, Ameresekere had submitted to the Supreme Court that a Judgment of the House of Lords regarding the former Chilean President Pinochet had been rescinded by another Judgment in review by the House of Lords, to correct injustice caused, on grounds that one of the Lords, Lord Hofman’s wife had been employed in an administrative capacity by Amnesty International, who had intervened in the matter against former Chilean President Pinochet.

Citing the above English authority, which would be applicable, Ameresekere has submitted to the Supreme Court, that Pradeep Kariyawasam, husband of Chief Justice, Shirani Bandaranayake, had been appointed, as Chairman, Sri Lanka Insurance Corporation in July 2009, and thereafter in May 2010 he had been appointed as Chairman, National Savings Bank, by President Mahinda Rajapaksa, as Minister of Finance, and that the National Savings Bank comes under the purview of the Ministry of Finance, whilst the Chairmanship is a prestigious post, with lucrative perquisites.

The Determination of October 24, 2011 had been delivered by a Bench presided by Chief Justice Shirani Bandaranayake, and President Mahinda Rajapaksa had been interested in mooting the Expropriation Bill and had made statements to the Parliament on December 21, 2011, endorsing the same.

Therefore Ameresekere in his Application has contended as an additional ground, that in the foregoing circumstances, as per the authority cited of the House of Lords, that the Determination warrants to be rescinded. On that occasion the Supreme Court Bench had advised Ameresekere that a review of a previous Determination must be by the same Bench which delivered the Determination unlike in the House of Lords where another Bench had reviewed the Judgment in the case of former Chilean President Pinochet.

Legal sources revealed that Ameresekere in making submissions to the Supreme Court on February 9, 2012 had tendered a separate Note on the above grounds, and that D.S. Wijesinghe, P.C., and Attorney General had objected to such Note being made known to the public.  

However, immediately upon the above Application having been made by Ameresekere on 8 May 2012, the controversial scandal of the purchase of Shares of The Finance PLC by National Savings Bank, chaired by Pradeep Kariyawasam, has got extensively exposed in the media, thereby only giving credence to the additional grounds of Appeal which has been urged by Ameresekere.