Court again upholds the supremacy of Parliament

The Supreme Court had given two landmark rulings last week. Nonetheless it is not clear and too early to say whether Sri Lankan society at large or at least the people concerned in particular paid sufficient attention to them. One was the case filed against Ceylon Tobacco Company (CTC) for causing cancer to a man in which the court ordered CTC to pay 400,000 to the man’s wife as cost as the CTC had delayed the case by appealing against an order made by the District Court where the case was being heard to the Appeal Court and the Supreme Court.   

In the second case, the court had rejected a fundamental right petition filed by former Chief Justice Sarath N. Silva challenging the enactment of the Provincial Councils Elections Amendment Bill. The Bill was originally supposed to provide for the inclusion of 30% of female candidates in the nomination papers tendered by political parties and independent groups at the provincial councils elections. But it was later amended by inclusion of sections providing for the introduction of a mixed electoral system for provincial councils, during the committee stage of the Parliamentary debate on it.  

The Bill was passed in the Parliament on September 20 last year and the Speaker had given his assent to the Bill on September 22. Amidst controversy over the manner the government had introduced the Amendment to the original Bill, the former Chief Justice filed a fundamental rights petition at the Supreme Court seeking an interim order by way of a direction that the amendments made to the Bill shall not be operative till the final determination of his petition.  

Before this Bill was presented in the Parliament another Bill - the 20th Amendment to the Constitution - to provide for holding elections for all provincial councils on the same day had been rejected by the Supreme Court on the grounds that certain Articles of the Amendment were inconsistent with the Constitution. (After its rejection the JVP has currently presented a Bill under the same name – 20th Amendment to the Constitution - as a private member’s Bill for the abolition of the Executive Presidency) One of the reasons the court had cited for the rejection of it was that it would cause to delay the provincial councils elections. It was argued that the controversial amendments to the above Bill which Mr. Silva contested went against that ruling.   

Besides, the former Chief Justice argued that one page of the original Bill had been removed and 21 new clauses had been inserted making it a new Bill, at the committee stage. He had further argued that as it was a new Bill it had to be published in the gazette for the people who are the depository of franchise and legislative power. He did not contest the validity of the content of the controversial Amendment – the introduction of mixed electoral system- but contended that the manner in which it was passed was not appropriate. The Attorney General contended that the court has “no power or jurisdiction to inquire into, or pronounce upon, the constitutionality of” a duly presented Bill “or its due compliance with the legislative process, on any ground whatsoever.” Accordingly, the court rejected his petition. Thus, it has to be understood that no Bill that has been duly passed in the Parliament can be questioned. This ruling is important as it has once again upheld the supremacy of the Parliament.   

The elections for the provincial councils that already stands dissolved have been suspended and delayed as the said controversial Amendment necessitated creation of wards in each provincial council area under the mixed electoral system introduced by the Amendment. The mixed electoral system has run into a storm after the February 10 local government elections which were held under that system, since it had caused chaos in a majority of local councils and all parties that contributed in the formulation and the passage of it now want to change it.   

Had the court ruled otherwise, the government would have been compelled to hold the already suspended elections forthwith but it would have been a challenge to the supremacy of the Parliament. Though the franchise at provincial level has been compromised due to the controversial amendments, court has upheld it now at the national level.