Former Chief Justice Sarath N. Silva today replying to the preliminary objections on the maintainability of his fundamental rights petition charged the Yahapahana government (Good Governance) of repealing all the original clauses and inserting new clauses in the Provincial Council (Amendment) Bill at the Committee Stage.
He alleged that the Constitution was dismantled in the passage of the said Bill. He maintained that the Provincial Councils Amendment Bill ceased to exist.
His fundamental rights application was take up before the Bench comprising Chief Justice Priyasath Dep, Justices B.P.Aluvihara and Nalin Perera.
He submitted that the Bill which is statement of legal effect should have been published in the Gazette and it should be in the public domain.
He submitted that the Supreme Court made its determination of the 20th Amendment and pronounced that certain provisions in the said Bill is inconsistent with the Constitution and if it is to be enacted, it be passed by 2/3 majority of the Parliament.
He said the Government conveniently ignored the said Bill and inserted Clauses in another Amendment Bill for the Provincial Council.
He complained that in the proposed original Bill for 30 percent of Female candidates in the nomination list, one page is removed and 21 new Clauses were inserted. He claimed that as such it is a new Bill and needed to be published in the gazette as a new Bill for people who are the depository of franchise and legislative power.
He said that in the country, the Constitution includes the franchise of the people which is the right to vote and the people are denied their franchise.
He said that in the Bill there is something concocted and the people had no notice on the proposed law.
The intervenient petitioners and the Attorney General are directed to file their objections and the Court reserved its order on the preliminary objection on the maintainability of the petition filed by Sarath N. Silva.
Additional Solicitor General Sanjay Rajaratnam appearing for the Attorney General raised three preliminary Objections on the maintainability of Sarath N. Silva’s fundamental rights on the ground of suppression of material facts, no jurisdiction and Parliamentary powers and privileges Act.
He also pointed out that the petition did not mention in the threshold caption under which article he was coming to Court. He said if it is a fundamental rights petition he should seek administrative and executive reliefs but in his petition he is seeking a declaration from the Court that the Speaker is not empowered by law to certify the said Bill which was passed at the 2nd Reading by Parliament and that the Speaker is estopped in law from endorsing a certificate on such amended Bill as having been duly passed in Parliament.
He said the Petitioner is challenging the validity of certification by the Speaker and the legislative process
He brought to the cognizance that the Bill was certified by the Speaker on 22n September 2017 and the Petitioner filed his petition on 28th September 2017 so he has suppressed the material fact.
M.A.Sumanthiran PC in his submission stated that the Supreme Court has no jurisdiction to hear or to determine the said application.
He said that this application could not be entertained as it is matter of Parliament wherein the there is parliamentary powers and privileges Act.
He cited and judgment delivered by three judges Bench consisting Chief Justice Sarath N Silva.
In the judgment delivered on “Monetary law 9Amendment) Act and Inland Revenue (Special Provisions) Bill, he stated that Citizen Silva in this petition who was the then Chief Justice pronounced that the petitioners are bound by the preclusive Clause and cannot invoke the jurisdiction of this Court in respect of the validity of the Acts of Parliament and that the petitioners are seeking to indirectly to achieve the result by challenging the Bills which preceded the respective Acts of Parliament.
He submitted that former Chief Justice has ruled that therefore the petitioners cannot circumvent the preclusive Clause as contained in Article 80(3) in respect of the Acts of Parliament by seeking to challenge the validity of the provisions of the Bill which preceded those Acts of Parliament.
Court fixed for September 19 the hearing of the further submission of the intervenient petitioners.
Suren Fernando instructed by G.G.Arulpragasam appearing for Intervenient Hashim Kabir MP submitted that the petitioner Silva is indirectly attempting to challenge the legislative process, an act which is expressly prohibited in terms of the Constitution.
He contended that which is in effect to violate the very constitution which the Supreme Court judges is sworn to uphold and defend.
He submitted that the Bill was certified by the Speaker on 22nd September 20176 (6 days prior to the petitioner filing his petition), its validity cannot be challenged on any ground whatsoever in accordance with the constitution.
He said in terms of the constitution, the constitutional validity of any provision of an Act of Parliament cannot be called in question after the certification of the President or the Speaker is given.
He contended that the affairs of the Parliament is to be regulated by the House itself and the Court should not interfere in these matters.
He submitted the judicial power of the people is to be exercised by Parliament with regard to matters relating to privileges, immunities and powers of Parliament.
He pointed out that the petitioner’s onslaught on the Attorney General was unfounded, malicious and misconceived in fact and law.
He said if this petition was to be allowed, it would open the doors for any person to challenge Acts passed by Parliament, by circuitous means.
He submitted It is akin to what Chief Justice Sarath N. Silva had held when he nullifie the merger of the Northern and Eastern Provinces on a similar ground .
Former Chief Justice Sarath Nanda Silva filed his fundamental rights violation petition challenging the enactment of the Provincial Council Elections Amendment Bill.
The Former Chief Justice cited the Attorney General Jayantha Jayasuriya PC, the Speaker of Parliament Karu Jayasuriya and the Chairman and members of the Elections Commission as respondents charging that at the Committee Stage of enacting the Bill, all the operative Clauses of the published Bill passed at the Second Reading of the Bill were deleted and an entirely new set of provisions had been introduced. (S.S.Selvanayagam)