Nihal’s Fundamental Rights application on Expropriation Law fixed for 26 Jan.

Part 2 – UN Universal Declaration of Human Rights? Judiciary entrusted with task of keeping every organ of the State within the law?

In the public interest to create awareness of the issues involved, the Daily FT will continue to publish extracts from the petition filed by public interest activist Nihal Sri Ameresekere on the Expropriation Law. The Supreme Court has directed that Notices be issued on the Respondents and Notices have been issued and the case listed for 26 January.

Notices have been issued on Minister of Finance Mahinda Rajapaksa, Minister of Economic Development Basil Rajapaksa, Secretary Ministry of Finance P.B. Jayasundera, Minister of External Affairs G.L. Peiris, former Attorney General C.R. de Silva, former Attorney General Mohan Peiris, Advisor to the Cabinet, Minister of Justice Rauf Hakeem, Secretary Ministry of Justice Suhadha Gamalath, Speaker of Parliament Chamal Rajapaksa and the Attorney General.

Part I, comprising paragraphs 14 to 18 of the Petition, was published in the Daily FT of 17 January 2012. Given below are paragraphs 4 to 9 of the Petition

4.The Petitioner files this Application

a) for Your Ladyship the Chief Justice to consider, as to whether the questions involved are of general and public importance, warranting the matter to be heard by a Bench comprising 5 or more Judges of Your Ladyship’s Court to review and consider, as to whether the Determination (“X6(a)”) made by Your Ladyship’s Court under Article 123 of the Constitution on an Application made under Article 122(1) of the Constitution, on an Urgent Bill titled –

“An Act to provide for the vesting in the Government identified Underperforming Enterprises and Underutilised Assets”,

is per-incuriam, and not in conformity with and/or ultra-vires the stipulations in Article 123(3) of the Constitution.

b) for himself and for and on behalf of and in the interest of the people of the country, exercising constitutional rights to oppose the alienation of the sovereignty of the people, which is inalienable, to secure and advance the fundamental rights of the people guaranteed by the Constitution, and to uphold and defend the Constitution, as a fundamental duty in terms of Article 28(a) of the Constitution, which inter-alia stipulates that the exercise and enjoyment of rights and freedoms, is inseparable from the performance of fundamental duties and obligations.

c) as a Shareholder / Stakeholder of Hotel Developers (Lanka) PLC, described as the only ‘Underperforming Enterprise’ under Schedule 1 to the Bill titled

 “Revival of Underperforming     Enterprises & Under-utilised Assets” (“X6(b)”) dated 8.11.2011 and tabled in Parliament on 8.11.2011,

together with Supreme Court Determination (“X6(a)”) on a Bill titled “An Act to provide for the vesting in the Government identified Underperforming Enterprises and Underutilised Assets”, also tabled in Parliament on 8.11.2011.

 The aforesaid Bill with 15 Committee Stage Amendments, has been passed by Parliament on 9.11.2011, and certified into Law by the Speaker, 9th Respondent, expeditiously on 11.11.2011 and therefore the said Bill is hereinafter referred to as the ‘Law’.

5.The Petitioner states that

a)the 2nd Respondent, Minister of Economic Development, as portrayed in the media and as per the proceedings in Parliament had espoused the enactment of the said Law, and is causing the implementation of the provisions thereof.

b)the 7th Respondent, Minister of Justice, with the Departments of the Attorney General and Legal Draftsman, and the Sri Lanka Law Commission coming under his purview, would be responsible to ensure that due and proper procedure is adhered to in the enactment of legislation, without the usurpation of any duties and functions under such Departments, and/or sans the subversion of such process.

c)  i) the 7th Respondent, Secretary, Minister of Justice, with the Departments of the Attorney General and Legal Draftsman, and the Sri Lanka Law Commission coming under his supervision ad direction, would be responsible to ensure that due and proper procedure is adhered to in the enactment of legislation, without the usurpation of any duties and functions under such Departments, and/or sans the subversion of such process.

    ii) As revealed by the Determination (“X6(a)”) of your Ladyship’s Court there have been 13 drafting errors to be corrected in the Bill.

    iii) the 7th Respondent, Secretary, Minister of Justice, when queried by the Petitioner, made the Petitioner understand that he was unaware, as to how and by whom the said Law came to be enacted.

6. a) The Petitioner states that

    i) he is not against the policy and objective of the Government, that privatised public enterprises must be held responsible and accountable to achieve the objectives of such privatisations; and

    ii) lawful action ought be taken for any breaches thereof, including, vis-à-vis, any perverseness of privatisations, which have been detrimental to public interest and/or has caused losses to the people.

b) In this regard, as PERC Chairman in 2004, the Petitioner initiated a ‘review’ of all privatisations carried out from 1986 to 2004, and identified to the extent possible, the ‘post-privatisation issues’ and ‘post-privatisation litigations’, as borne out by the PERC Annual Report 2004, submitted to Parliament. Nevertheless, PERC was closed thereafter in or about 2008.

True copy of the relevant pages of the PERC Annual Report 2004 submitted to Parliament is annexed marked X2, pleaded as part and parcel hereof

c) In fact, it is such investigations into the privatisations of SLIC and LMSL, which led to the adverse COPE Reports thereon in 2007, resulting in SC (FR) Application Nos. 158/2007 and 209/2007, wherein Your Ladyships’ Court annulled these privatisation as wrongful, unlawful, illegal and fraudulent, after inter-partes Hearings.

d) Whereas ‘certain’ institutions have been arbitrarily and unilaterally listed sans any evaluation and/or investigative evidence, inter-alia, as failed privatisations / transactions, ‘Underutilised Assets’ and/or ‘Underperforming Enterprises’, violating norms of natural justice, and the right to have been heard and denying equality enshrined under Article 12(1) of the Constitution, and denying access to the judiciary in terms of Article 105(1) of the Constitution.

e)Such arbitrary and unilateral listing of ‘certain’ institutions not founded on and far removed from ‘intelligible differentia’ and without a proper evaluation process and/or survey would have left out other similar institutions, thereby infringing upon the right to equality enshrined in the Constitution.

f) But those persons, who had perpetrated such privatisations and/or transactions and had failed to monitor their performance to protect the public interest had not been arraigned before the law and/or been dealt with, but permitted to continue to hold public office and/or be given further State Contracts.

g)The very process aforesaid tantamounted to the alienation of the sovereignty of the people, which is inalienable as morefully set out herein.

h)Article 17 of the United Nations Universal Declaration of Human Rights, which entered into force in 1948, and to which Sri Lanka is a party, stipulates as follows:

“Article 17 (1)

(1)Everyone has the right to own property alone as well as in association with others

(2)No one shall be arbitrarily deprived of his property”

The aforesaid Article 17 has been blatantly and flagrantly breached.

 7. Petitioner having noted reference to certain parts only (i.e. Articles 27(2((a) and 27(2)(d)) of the Directive Principles in Chapter VI of the Constitution, both in the aforesaid Bill and the aforesaid Determination, sets out below (other relevant Articles of) the Directive Principles of State Policy and Fundamental Duties, respectfully stating that the entirety thereof ought be taken into reckoning: (Emphasis added)

Directive Principles of State Policy

“27.(1) The Directive Principles of State policy herein contained 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.

(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;

(b)the promotion of the welfare of the People by securing and protecting as effectively as it may, a social order in which justice (social, economic and political) shall guide all the institutions of the national life; (Article relied on for the Expropriation Law)

(d)the rapid development of the whole country by means of public and private economic activity and by laws prescribing such planning and controls as may be expedient for directing and co-ordinating such public and private economic activity towards social objectives and the public weal; (Article relied on for the Expropriation Law)

(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;

(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.

(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.

(15)The State shall promote international peace, security and co-operation, and the establishment of a just and equitable international economic and social order, and shall endeavour to foster respect for international law and treaty obligations in dealings among nations.”

Fundamental Duties

“28. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly it is the duty of every person in Sri Lanka-

(a)to uphold and defend the Constitution and the law;

(d)to preserve and protect public property, and to combat misuse and waste of public property;

(e) to respect the rights and freedoms of others; and

Principles of State Policy and Fundamental Duties not justiciable

29. The provisions of this Chapter do not confer or impose legal rights or obligations, and are not enforceable in any court or tribunal. No question of inconsistency with such provisions shall be raised in any court or tribunal.”

8.The Petitioner relies on the following ‘dicta’ cited from the Judgment dated 3.8.2009 delivered in SC (FR) Application No. 352/2007 by His Lordship the former Chief Justice J.A.N. De Silva, with Her Ladyship Justice Shiranee Tilakawardene and His Lordship Justice K. Sripavan agreeing. (Emphasis added)

“As is made amply clear by subsection (4) of Article 126, inherent to the effective supervision of matters pertaining to Fundamental Rights is the ability and power of the Supreme Court to administer relief and make directions so long as such relief and directions are “just and equitable” - a simple and unqualified two-word threshold clearly meant to give the broad discretion and power required of the Supreme Court to effectively address the infinitely myriad ways in which fundamental rights can be violated.

It is important to recognise, then, that the Supreme Court’s broad powers over matters of Fundamental Rights stem, not from an overzealous interpretation of judicial power, but from an understanding of the very nature of these matters for which the Court has been empowered to protect.

Fundamental Rights applications are qualitatively different from other types of appeals heard before this Court and warrant greater latitude in their consideration and to grant redress in order to encompass the equitable jurisdiction exercised in these applications.”

9.A 7 Member Bench of Your Ladyships’ Court, presided by His Lordship then Chief Justice, Sarath N. Silva, and His Lordship former Chief Justice J.A.N. De Silva, and Your Ladyship the Chief Justice Shirani Bandaranayake, and Their Lordships Justices S.W.B. Wadugodapitiya, A. Ismail, P. Edussuriya and H.S. Yapa, on the aborted 18th and 19th Amendments to the Constitution, inter-alia, determined in October 2002, as follows: (Emphasis added)

n“If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which 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 - (Cited from Indian Judgment)”

n“It had been firmly stated in several judgments of this Court that ‘rule of law’ is the basis of our Constitution.”

n“A.V. Dicey in Law of the Constitution postulates that ‘rule of law’ which forms a fundamental principle of the Constitution has three meanings one of which is described as follows:-

 ‘It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness or prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone …. ’”

n“The Constitution does not attribute any unfettered discretion or authority to any organ or body established under the Constitution”

n“We have to give effect to this provision according to the solemn declaration made in terms of the Fourth Schedule to the Constitution to “uphold and defend the Constitution””