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AG raises preliminary objections against former CJ’s petition

 

The Attorney General today raised preliminary objections seeking Supreme Court’s jurisdiction to dismiss (in limine) the Fundamental Rights petition filed by former Chief Justice Sarath N. Silva who challenged the enactment procedure of Provincial Council Election Bill.

Senior Additional Solicitor General Sanjay Rajaratnam appearing on behalf of the Attorney General informed Supreme Court that the Court does not have a jurisdiction to hear this petition in terms of Article 124 of the constitution since it challenges the legislative process of the country. The Article 124 of the constitution says; ‘no court or tribunal created and established for the administration of justice, or other institution, person or body of persons shall in relation to any Bill, have power or jurisdiction to inquire into, or pronounce upon, the constitutionality of such Bill or its due compliance with the legislative process, on any ground whatsoever’.

Supreme Court bench comprised Chief Justice Priyasath Dep, Justice Buvaneka Aluvihare and Justice Nalin Perera. This petition is to be taken up for further submissions on October 19.

ASG Rajaratnam further stated that former Chief Justice Sarath N. Silva cannot invoke Supreme Court’s jurisdiction through FR petition in accordance with the section 3 of the Parliament Powers and Privileges Act. The relevant section says; ‘There shall be freedom of speech, debate and proceeding in Parliament and such freedom of speech, debate or proceedings shall not be liable to be impeached or questioned in any court or place out of Parliament’.

ASG Rajaratnam stated that by this application the former Chief Justice is questioning the validity of the Provincial Councils Elections (Amendment) Act, No. 17 of 2017 which has been duly passed by the Parliament exercising the legislative power of the people.

The Attorney General further raised preliminary objections against the Fundamental Rights petition filed former Chief Justice for non-disclose of the material facts of the petition.

ASG Rajaratnam stated that the endorsement certificate pertaining to the Provincial Council Election Bill which was certified on September 22 by the Speaker had not been produced by in Court. 

Meanwhile, TNA Parliamentarian M. A. Sumanthiran PC today informed Supreme Court that former Chief Justice Sarath N. Silva while he was functioning as the Chief Justice in 2003 had dismissed a petition challenging an act of Parliament citing that Court does not have jurisdiction to intervene into legislative process.

Sumanthiran appearing as an intervenient petitioner into the Fundamental Rights petition filed by former Chief Justice Sarath N. Silva made this submission and further said that through this judgment former Chief Justice had recognized Executive, Legislative and Judiciary-the three organs of the government have separate roles in discharging their duties. 

Making his submissions in Court, former Chief Justice stated that he was not challenging the parliament procedure. ‘I am challenging the Attorney General’s opinion for permitting to proceed this bad process. New set of amendments have been brought during the committed stage’, former Chief Justice added.

On September 28, former Chief Justice Sarath N. Silva filed a Fundamental Rights petition at the Supreme Court seeking an Interim Order by way of a direction that the amendments purported to be made to the Provincial Council Election Bill at the committee stage of the Parliament on September 20 shall not be operative till the final determination of this petition.

Sarath N. Silva PC served as the 41st Chief Justice of the Supreme Court of Sri Lanka (1999-2009).

The petitioner cited Speaker Karu Jayasuriya, Attorney General Jayantha Jayasuriya and Chairman and members of Election Commission as respondents.

In his petition, former Chief Justice further sought a declaration that the Fundamental Rights of the petitioner guaranteed by article 12(1) of the constitution has been infringed or is likely to be infringed by the executive or administrative actions of respondents.

The former Chief Justice is also seeking a declaration that Speaker Karu Jayasuriya is not empowered by law to certify in terms of article 79 of the constitution that the Provincial Council Election bill which was passed at the second reading by parliament and operative provisions of which were entirely deleted and new provisions purporting to be amendments to the Provincial Council Election Act No.2 of 1988.

The petitioner stated that the government attempted to postpone the said elections by means of the twentieth amendment to the constitution which was challenged and Supreme Court determined that the bill is inconsistent with the constitution and should be approved by people at referendum. The petitioner stated that upon the said determination the government decided not to proceed with the said amendment and decided to proceed with the bill as to the quota of female candidates.

Attorney-at-law Aruna Laksiri, Colombo District SLFP organizer Attorney-at-law Rajika Kodothuwakku, TNA Parliamentarian M. A. Sumanthiran PC, UNP Parliamentarian Kabir Hashim, Minister Faizer Mustapha and Gamini Viyangoda had filed intervention petitions against the former Chief Justice’s petition.

President’s Counsel J.C. Weliamuna with Saliya Peiris PC, Chandaka Jayasundara PC and counsel Pulasthi Rupasinghe appeared for the intervenient petitioners.