SC declines to re-visit constitutionality of Revival Bill in FR petition by Nihal

By S.S Selvanayagam

The Supreme Court yesterday dismissed in limine (at the threshold) without cost the fundamental rights petition against the impugned Bill titled ‘Revival of Underperforming Enterprises and Underutilised Assets’.

A public interest activist Nihal Sri Ameresekere had filed his fundamental rights violation petition against the impugned Bill and sought to re-examine and determine upon the Constitutionality of the provisions of the impugned Bill.

He had sought 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.

The Bench comprised Justices N.G Amaratunga, Suresh Chandra and Sathya Hettige held the Bench has no power to accept the petition. The Court also directed to return the documents back to the Petitioner that was handed over by him to Court. Court directed that the said documents are not part of record.

Petitioner cited the incumbent Attorney General, Secretary to the Finance Ministry, the Treasury as well as the Ministry of Economic Development P.B Jayasundara and External Affairs Minister G.L. Peiris, former Attorneys Generals C.R de Silva and Mohan Peiris, Justice Minister Rauf Hakeem, Ministry Secretary Suhada Gamalath and the Speaker Chamal Rajapaksa as Respondents.

D.S Wijesinghe PC appeared for Minister of Economic Development Basil Rajapaksa. Deputy Solicitor General Janak de Silva with Senior State Counsel Nerin Pulle appeared for the other Respondents.

Petitioner reiterated the Bill is not yet law and exceptional circumstances would warrant exceptional remedy to defend and uphold the constitution and to enforce the rule of law, the very basis of the constitution of the country.

Petitioner seeks a declaration from the Court that the impugned Bill is obnoxious arbitrary, harsh, oppressive and unconscionable law and ought to be struck down.

He asks the Court to declare that the conduct and actions of some of the Respondents have violated the fundamental rights to equality and equal protection of the law as well as the freedom from punishment and prohibition of retroactive penal legislation of the Petitioner guaranteed under the Constitution.

He seeks the Court to declare one or more provisions of the Bill inconsistent with the Constitution and cannot be passed by a simple majority.  

He also seeks the Court to declare that one or more provisions of the Bill tantamount to the suspension and/or amendment of Constitution.  

He asks the Court to declare that one or more provisions of the Bill are prohibited from being enacted into law, particularly in the context of the sovereignty of the people being inalienable and Article 75 of the Constitution.  

He seeks interim orders to prevent a miscarriage of justice and a violation of the Constitution, which is under Oath to be upheld and defended.

The exercise of the Constitutional right by a citizen to be heard by the Supreme Court cannot be deprived by a side wind by merely arbitrarily ‘rubbing stamping ‘a Bill, as an ‘Urgent Bill’, by the Cabinet of Ministers who do not have unfettered powers, he reiterates. The said Bill was presented to Parliament on 8 November.

He reiterates the Article 3 and the Article 4 of the Constitution enshrining that the sovereignty is in the people as inalienable and that the sovereignty of the people shall be exercised by the legislative power of the people, the executive power of the people, and the judicial power of the people.

He underlines that the Article 4(d) of the Constitution enshrining that the fundamental rights shall be respected, secured and advance by all organs of government including all those who had taken Oath to uphold and defend the Constitution and shall not be abridge, restricted or denied.

He draws the attention of the Supreme Court that it is the judiciary that 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 and that the Constitution does not attribute any unfettered discretion or authority to any organ or body established under the Constitution and contends that the foregoing would apply with equal force to the Cabinet of Ministers a body established under the Constitution.

He maintains that the said act of the respondents had consciously, intentionally and deliberately alienated the sovereignty of the people in the exercise of the judicial power of the people and precluding the Supreme Court from hearing the people in the enactment of laws, as provided for in the Constitution.

This gives rise to the cogent question, as to whether there was apprehension that the Determinations of the Supreme Court would have been otherwise, had the voice of the people been heard, he alleges.

The Directive Principles of State policy shall guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society, he states.

The said policy also reckons that 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 and that the State shall ensure that the operation of the economic system does not result in the concentration of wealth and the means of production to the common detriment, he states.

The exception in Article 122 of the Constitution cannot be abused to alienate the sovereignty of the people as a general norm, since no body under the Constitution has unfettered power, he stresses.

The impugned Bill is 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, underlines.

The Bill has been passed by a simple majority of Parliament on the premise of the Determination made by the Supreme Court, with the people having precluded from being heard, he points out.