Chitra Weerarathne
A five-Judge Bench of the Supreme Court yesterday dismissed the three fundamental Rights petitions challenging the Bill and the subsequent Act to acquire private assets which are underproductive, and underutilized. The Bench ruled that there was no basis to grant leave to proceed with the application.
The petitions were filed by the Ven. Thinyawala Palitha Thera, the employees of the Sevanagala Sugar Factory and the farmers who cultivate sugarcane to be utilized in the production of sugar.
Deputy Solicitor General Janak de Silva, in his objections to the petitions, said that according to Article 124 of the Constitution, a petitioner could challenge the constitutionality of a Bill only under Articles 120, 121 and 122. The petitioners had filed their petitions under Article 126.
He said that Article 122 empowers the Cabinet of Ministers to decide whether an issue was urgent in the public interest and refer if to the Supreme Court for the determination of its constitutionality.
The Bill had been determined by the Supreme Court, as constitutional and the Speaker had issued a certificate. The Bill had been passed in Parliament and made an Act of Law. Under Article 80/3 of the Constitution, the jurisdiction of the Supreme Court is ousted, once a Bill is made an Act of Law, by a vote taken in Parliament, he said.
Senior counsel for the petitioners Romesh de Silva PC, said that the petitions dealt with the sovereignty of the people. A two third majority in Parliament or a referendum could not take away the sovereignty of the people. He said the Supreme Court was vested with the power to protect the sovereignty of the People, the Rule of Law and the fundamental rights, which was one of the attributes of the sovereignty of the people. Counsel said the petitions were filed in the interests of the people. The Bill had taken away the rights of the people by taking away the right to be heard, on the footing that the Cabinet decided the issue as urgent.
Counsel asked how the legislature could only decides whether an institution was under-performing or underutilized? "How could the legislature alone decide whether the land belonged to the government which was leased out within the past twenty years was leased out to generate employment or to earn foreign exchange? Who would provide the legislature with the information," he queried.
"This is beyond legislative power he said. According to Article 3 and 4, the sovereignty of the people was ensured. The legislative power was exercised in certain ways by Parliament, counsel said adding that according to the 13th amendment to the Constitution, the subject of land was vested in the Provincial Councils. "Then how could the main Parliament decide on land owned and vested subsequently by the government? Sovereignty of the people was not alienable. In the Bill the Parliament did not properly exercise the legislative power," he said.
Romesh de Silva said that Article 80/3 was not a total bar. The Supreme Court could exercise consultative jurisdiction and hear the matter. In appropriate circumstances the Supreme Court would go into the issue. No Constitution could be repugnant to the sovereignty of the people. The inclusion of a schedule in the Bill/Act with a particular reference to a land, without going through the due process, was totally arbitrary. The Bill and the consequent Act was in excess of the powers of Parliament, he explained.
"How could the legislature pinpoint and take over certain lands? he asked. They might go further and take into custody certain selected persons, the counsel said.
Saliya Pieris, counsel for the employee petitioners, said that his client were employees of the Sevanagala Sugar Factory, which was a profit earning entity. His clients were unable to understand how the institution could be categorized as under performing. The plight of the employees was uncertain if the industry was taken over. The petitioners had a legitimate right to be heard in connection with the acquisition Bill. The State did not give publicity to the Bill. The Cabinet of Ministers had violated the freedom of expression of the petitioners. The people were Supreme in Sri Lanka, he said.
Counsel J. C. Weliamuna, who appeared for the petitioners, stressed the fact that in the Constitution of Sri Lanka, the people were sovereign.
Romesh de Silva PC, appeared with Nihal Fernando PC, Sugath Caldera, Rohan Daluwatte and Viraj de Silva, for a group of petitioner.
Among the other counsel that appeared for the rest of the petitioners were, J. C. Weliamuna and Saliya Peiris.
The Deputy Solicitor General Janak de Silva appeared with Senior State Counsel N. G. Pulle for the respondent Attorney General.
The Bench comprised Justices N. G. Amaratunga, S. I. Imam, R. K. S. Sureshchandra, Sathya Hettige and Priyasard Dep.
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