SC refers FR case on Revival Bill to CJ

Counsel submits that the Bill veers off the rule of law and public interest and the sovereignty of the people

By S. S. Selvanayagam

The fundamental rights petitions challenging the Bill to acquire underperforming enterprises and unutilised assets was on Wednesday referred by the Supreme Court to the Chief Justice for support on 15 November.

When the matter came up before the Bench comprising Justices P. A. Ratnayake, R. K. S. Suresh Chandra and Priyasath Dept, Justice P. A. Ratnayake declined to participate yesterday’s proceedings as he was a member of the Bench which heard and made the statutory determination in respect of the Bill referred to the Supreme Court.

President’s Counsel Romesh de Silva who appeared for one of the petitioners submitted as a matter of fact, its importance because it concerns the infringement of the fundamental rights of the people and an important question of sovereignty of the people guaranteed under the constitution.

The counsel submitted that it veers off the rule of law and public interest and the sovereignty of the people, as well and moved that in view of these facts, the matter be referred to the Chief Justice to consider constituting a fuller Bench to hear, if it deems to fit in view of the importance of the matter.

The Counsel also submitted that though Justice Ratnayake disassociates with this matter, in view of his previous determination in respect of the Bill, the petitioners welcome that he is a part of the Bench that will hear the matter.

The fundamental rights violation petition was filed before the Supreme Court challenging the Bill, which was proposed to be passed in the Parliament to acquire underperforming enterprises and unutilised assets.

Ven. Thiniyawala Palitha Thero, Chief Incumbent of Nalandaramaya Nugegoda, as well as the Chennai Maha Bodhi Society of Sri Lanka filed his petition against the Bill titled “an Act to provide for the vesting in the State identified Underperforming Enterprises and Underutilised Assets.”

He cited Secretary of Finance Ministry and Treasury P. B. Jayasudnera, and Members of the Cabinet of Ministers and the Attorney General as respondents.

The petitioner states the owners of such assets have not been given an opportunity of placing their case prior to deciding that such assets as Underperforming Enterprises and/or Under Utilised Assets.

He states he believes the said Bill was drafted by a private firm of lawyers contrary to the norm where Bills are drafted by the Legal Draftsman’s Department.

He states material facts have not been placed before the Supreme Court and as such the Supreme Court has been prevented from making an informed decision.

If the question of underperformance or underutilisation be kept open to be decided after a fair hearing then representations could be made to the contrary in as much as some of the companies and their assets referred to in the said second schedule, do not under any circumstances, fall under the definition of ‘underutilised assets’ referred to in the same proposed Bill, he states.

The owners of such assets have not been given an opportunity of placing their case prior to deciding that such assets as Underperforming Enterprises and/or Under Utilised Assets; there has been a breach of the rules of natural justice in determining that the schedule contains Underperforming Enterprises and/or Under Utilised Assets, he said.

The government has taken extraordinary measures to prevent the Bill from being accessed by anybody before the 24 hour deadline for the Supreme Court determination lapsed, he alleges.

This Bill would empower the Government to take over any entity that it deems underperforming and/or underutilised without adhering to the basic principles of law and in violation of the fundamental rights of the citizens of the country, he aggrieves.

Romesh de Silva PC with Nihal Fernando PC, Sugath Caldera, Rohan Dunuwila and Eraj de Silva appeared for Ven. Thiniyawala Palitha Thero. Saliya Peiris with Asthika Devendra and Dilan Warusavithana appeared for the Sevenagala workers. J.C.Weliamuna with Pulasthi Hewawanne appeared for Sugar Cultivators. Senior State Counsel Janak de Silva with Senior State Counsel Nerin Pulle appeared for the Attorney General.

President Mahinda Rajapaksa had forwarded the draft Bill titled “an Act to provide for the vesting in the State identified Underperforming Enterprises and Underutilised Assets” as an urgent Bill in the national interest to the Supreme Court for its constitutionality.

The said Bill is to appoint in respect of each one or more of such underperforming enterprises or underutilised assets, a Competent Authority to provide for their effective managing, administration or revival through alternative utilisation and the payment of compensation.

It is stated it has become necessary in the national interest to vest in the State certain identified underperforming enterprises and underutilised assets, in order to ensure the effective administration, management or revival of such enterprises or assets, through alternate methods of utilisation, such as restructuring or entering into management contracts; this Act is to be enacted by the Parliament.

A Competent Authority appointed to control, administer and manage an underperforming enterprise shall take possession of all movable and unmovable properties of such enterprise (including any building belonging to or standing on land belonging to, such enterprise, together with fixtures or fittings thereto belonging and appurtement therewith, or treated as part and parcel thereof, and shall cause an inventory to be prepared of property in the presence of wherever it is, so possible, the person who on the day prior to the date of the vesting of such enterprise, was the Chairman of the Board Directors of such enterprise or an asset duly authorised by such Chairman.

The Competent Authority shall take possession of an underutilised asset (including any building which is part of, the fixtures, the fittings thereto and any building, belonging and appurtement or treated as part and parcel thereof) and shall cause an inventory to be prepared appropriately in the presence of wherever it is so possible, the person who on the day prior to the date of the vesting of such asset in the Secretary to the Treasury, was the owner or an agent duly authorised by such owner.

Any person who, with regard to any underperforming enterprise or underutilised asset vested in the Secretary to the Treasury, refuses or fails to deliver possession to the Competent Authority of any property movable or unmovable including any building, plant, machinery or any fittings or fixtures, appurtement thereto and stock in trade of such any enterprise or asset; or

Wilfully or negligently destroys, damages or disables or causes to be destroyed or damaged or disabled or wilfully conceals or puts away or causes to be concealed or put away any property of, any such enterprise or asset; or prevents or obstruct or directly or indirectly causes any other person to prevent or obstruct the Competent Authority in taking over the management of, or taking possession or control of, any building or property, of any such enterprise or asset;

Shall be guilty of an offence under this Act and shall on conviction after summary trial before a Magistrate to be liable to imprisonment either description for a period of not exceeding 10 years or to a fine not exceeding ten thousand rupees or to both such fine and imprisonment.