Copy of the skeleton argument submitted to the Supreme Court in support of the application for leave to proceed at the hearing on 01 October 2013October 4th, 2013
S.V.A.R.A. Samarasinghe ‚ (Attorney-at-Law)‚ ‚
‚ On 1st October 2013, there was a court proceeding at the Supreme Court of the Republic of Sri Lanka to support an application which was also described by media as an application to abolish the Thirteenth Amendment to the Constitution. On this day, the Supreme Court dismissed the application even without granting leave to proceed. As a‚ result, unfortunately, the legal issues raised have been left unresolved.
I was involved in the drafting of this Petition and also represented the client before the Supreme Court. I made the submission providing a comprehensive skeleton argument & a number of crucial issues had to be argued as it was a full hearing. Although the application was refused, the issues discussed seemed to have generated much interest. I was unable to provide copies of my skeleton argument to those lawyers who requested at the time. Accordingly, I herewith provide the skeleton argument‚ for the benefit of the legal fraternity.
I may right another article for the benefit of the general public, for whom this may be too technical.
Some of the interesting legal issues discussed may be of particular interest even to the general public. I wish to mention a few.
- Once a Bill becomes law, it cannot be challenged in a Court of Law. This skeleton argument analyses the relevant article, [Article 80 (3) of the Constitution & explains why the said Article does not prevent challenging the Thirteenth Amendment Act.
- General impression about the Supreme Court decision is that there were three decisions. Legally there were only two decisions, yes & no for the referendum. Justice Ranasinghe-â„¢s decision was -“when constitutionally interpreted- amounts to stating that the Bill needs a referendum & not just the two provisions.
- Constitution does not allow the Thirteenth Amendment Bill to be passed by amending it.
‚ The above issues & other relevant issues have been discussed in detail in the skeleton argument & may be of academic interest to those who are interested in Constitutional Law.
I am sending this for publication in your newspaper.
‚ Sam Samarasinghe
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
SC (FR) Application
No:‚ ‚ 253/2013‚ ‚ ‚
‚ In the matter of an application under Article 126 & Article 17 read with Articles 12 (1) of the Constitution.
‚ Also seeking leave to rely on alternatively or in addition for the exercise of the inherent jurisdiction/powers of the Supreme Court, as the highest and final Superior Court of Record under and in terms of Article 118 read with Articles 3, 4, 105 (3), 125 & 132 of the Constitution of the Democratic Socialist Republic of Sri Lanka.
‚ Mrs. Siriwardana Mudiyanselage Padmapriya Siriwardana
349/18, Main Street
Negombo‚ ‚ ‚ ‚ ‚ ‚ ‚
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ -v-
The Hon Attorney General,
Attorney General-â„¢s Department,
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ Hon. Chamal Rajapaksa M.P.
Speaker of the Parliament
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ Sri Jayawardenepura
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ Kotte
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ 2nd Respondent
Hon. A. L. M. Athaulla
Minister of Local Government & Provincial Councils
C37 Keppetipola Mawatha,
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ 3rd Respondent
On this 1st ‚ day of‚ October 2013
TO: THE HIS LORDSHIP, THE HONOURABLE CHIEF JUSTICE AND THEIR LORDSHIPS, THE‚ OTHER HONOURABLE JUDGES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ___________________________________________________
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ Skeleton Argument on behalf of the Petitioner
[hearing on 01-10-2013 in support o‚f leave to proceed]
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ______________________________________________________________
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ INDEX
- Continuing infringement & imminent infringement of FR -“Article 12 (1)
- Legal Basis for the breach of Article 12 (1) Breach of right to equal protection & equality before law as a result of breakdown of the Rule of Law
- Legal Basis relied on to establish the breakdown of Rule of Law The implementation of an invalid Constitutional Amendment -13-A
- Jurisdictional Issue -” Does the Supreme Court has the jurisdiction to enquire into the validity of 13-A?
- Legal basis of challenge into the validity of the Thirteenth Amendment [-13-A-]
‚ ‚ ‚ ‚ ‚ ‚ ‚ a)‚ Non-compliance of the Supreme Court decision‚
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ b) Violation of the Constitution
Legal Issue arising from the approach adopted by the Parliament
Determinations of the Supreme Court
What is the majority decision?
Analysis of the Determination of Justice Ranasinghe
Reasons for the majority decision on 13-A
7.‚ Inherent Jurisdiction
8.‚ Further Legal Precedents
- The Petitioner relies on the contents of the Application and Affidavits [already filed].
- The Petitioner aims to establish the following legal issues in order to seek the grant of leave.
Legal Basis for the Petitioners application & for the grant of leave
- This application discloses a prima facie case for an infringement of- and also an imminent infringement of- the fundamental rights by executive or administrative action as required by SC Rules 44 -“(7) (b).
- The relevant fundamental right infringed is -“
- Article 12(1) of the Constitution – right to equal protection of law & equality before law [which is not only guaranteed but also protected under Article 12(1)].
- The executive /administrative action whereby the infringement of the said rights
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ i.‚ ‚ ‚ ‚ ‚ Is a continuing as‚ the implementation of the Thirteenth Amendment is a continuing process‚ and
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ii.‚ ‚ ‚ ‚ ‚ ‚ Some aspect of infringement is imminent as there is a threat of imminent full implementation of the Thirteenth Amendment which includes devolving land & police powers to the provinces & merging provinces.
- The implementation of the Thirteenth Amendment has led to the infringement of the above rights because it has led to the breakdown of the Rule of Law & undermining the authority of the Supreme Court bringing arbitrariness because it is being done -
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ i.‚ ‚ ‚ ‚ ‚ violating the supreme Law of the country -” the Constitution and
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ii.‚ ‚ ‚ ‚ ‚ in breach of the decision of the highest court in the land -Supreme Court
This also has set a dangerous precedent for the future. Accordingly, this is not only of interest to the Petitioner, but also of wider public interest.
- The main factual issue is whether the 13-A is being implemented & whether there is an imminent full implementation. There cannot be any dispute as to the factual issue. However, the factual aspect is evidenced by the Petitioner-â„¢s evidence in paragraphs 8 -” 14. and also by the factual content in the exhibits P-7, P-8,P-9,P-10 & P-11.
- Your Lordships Court has held that the breakdown of the Rule of Law leads to the infringement of the Petitioner-â„¢s Fundamental Rights guarantee under Article 12 (1) in the Judgement Hapuarachchi and others ‚ vs Commissioner of Elections and another‚ SC FR 67/08, November 11, 2008, December 19, 23, 2008.
 1 SriLR‚ at page 16, It is stated as follows :
–¦.-ËœArticle 12(1) of the Constitution deals with the right to equality and reads as follows:
-All persons are equal before the law and are entitled to the equal protection of the law.-
Equality, which could be introduced as a dynamic concept, forbids inequalities, arbitrariness and, unfair deci‚sions. ‚ As pointed out by Bhagwati, J. (as he then was) in E. P. Royappa v State of Tamil Nadu(18)
-From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies, one belongs to the rule of law in a Republic while the other, to the whim and caprice of an absolute monarch.-
In such circumstances to deprive a person of knowing the reasons for a decision, which affects him would not only be arbitrary, but also a violation of his right to equal protection of the law.-â„¢..-
(although this comment has been made in the context of -failure to give reasons for a decision,- this confirms the position that the breakdown of the rule of law leads to infringement of the Article 12(1).)
Legal Basis for the breach of Article 12 (1)
- The establishing of the infringement or/and imminent infringement of‚ Petitioner-â„¢s Fundamental Rights depends on establishing the fact that the 13-A is invalid. This leads to following issue:‚ ‚
Jurisdictional Issue -” Does the Supreme Court has the jurisdiction to enquire into the validity of 13-A?
Does the Supreme Court has the jurisdiction to enquire into the Petitioner-â„¢s infringement of fundamental rights in view of the fact that it involves an enquiry into the validity of the 13-A in view of the preclusive clause of Article 80 (3) of the Constitution?
- The relevant Article 80 of the Constitution is quoted below:‚ ‚
-80. (1) Subject to the provisions of paragraph (2) of this Article, a Bill passed by Parliament shall become law when the certificate of the Speaker is endorsed thereon.
(2) Where the Cabinet of Ministers has certified that any Bill or any provision thereof is intended to be submitted for approval by the People at a Referendum or where the Supreme Court has determined that a Bill or any provision thereof requires the approval of the People at a Referendum or where any Bill is submitted to the People by Referendum under paragraph (2) of Article 85, such Bill or such provision shall become law upon being approved by the People at a Referendum in accordance with paragraph (3) of Article 85 only when the President certifies that the Bill or provision thereof has been so approved. The President shall endorse on every Bill so approved a certificate in the follow‚ing form : -
-This Bill/provision has been 1‚ duly approved by the People at a Referendum [duly approved by the People at a Referendum.-
No such certificate shall be endorsed by the President on a Bill -"
(a) in any case where no petition is filed challenging the validity of the referendum at which such bill was approved by the People, until after the expiration of the period within which a petition may be filed, under the law applicable in that behalf, challenging the validity of such referendum :
(b) in any case where a petition is filed challenging the validity of the Referendum at which such Bill was approved by the People, until after the Supreme Court determines that such Referendum was valid.]
Every such certificate shall be final and conclusive, and shall not be called in question in any court.
(3) Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question the validity of such Act on any ground whatsoever.-
[*1 -"introduced by the 15th Amendment]
- Most relevant part of the Article 80 (3) of the Constitution [quoted above] is as follows: ‚ -Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, -¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦.. , no court or tribunal shall inquire into, pronounce upon or in any manner call in question the validity of such Act on any ground whatsoever..-
- Accordingly, if the Jurisdiction of Supreme Court is ousted by this Article, such ouster or prohibition would apply ONLY IF, the Act concerned falls into the category described as -such Act- in the above paragraph. The Bills so described as -such Acts- in Article 80 are explained in the sub-section 80(2):
- The Article 80 (2)‚ states as follows:‚ –¦-¦-¦..or where the Supreme Court has determined that a Bill or any provision thereof required the approval of the People at a Referendum-¦-¦-¦such Bill or such provision shall become law upon being approved by the People at a Referendum-¦-¦-¦.only when the President certifies that the Bill or provision thereof has been so approved-¦-¦-¦- [emphasis added].
(a)‚ ‚ ‚ Accordingly, -13-A Bill- requires the certification of the President after an approval by people at a Referendum to become law, as stated in the Article 80(2).
(b)‚ ‚ ‚ Article 80 does not simply state that a Bill would become law upon the certificate of President or Speaker. The exact wording is as follows: -upon the certificate of the President or the Speaker, as the case may be, -¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦..-[emphasis added] The phrase, -as the case may be- clarifies that the Speaker-â„¢s Certificate could not be accepted where the President-â„¢s Certificate is needed. The lack of President-â„¢s certificate confirming the approval by people at a referendum takes -13-A- away from the category of -such Act- referred to in Article 80 (3).
Accordingly as the -13-A- has not been enacted through the procedure outlined in the Article 80, it is not protected by the Article 80(3). Hence, Supreme Court can enquire into, pronounce upon or question the validity of -13-A-.‚
- In this sense the 1978 Constitution is more in line with Peoples Sovereignty. The predecessor Article in the 1972 Constitution is 48 (2) is much more restrictive. It ‚ states as follows:
-48 (2).‚ No institution administering justice and likewise no other institution, person or authority shall have the power or jurisdiction to enquire into, pronounce upon or in any manner call in question the validity of any law of the National State Assembly.- [Emphasis added]
- It is important to note that the 1978 Constitution omitted the phrase -any law- and qualified it by using the phrase -such Act-. This change would not have been made if such an absolute prohibition was intended.
- There is another issue that may be raised against this interpretation.‚ The‚ Article 123 (4) state as follows:
-123(4)‚ Where any Bill, or the provision of any Bill, has been determined or‚ is deemed to have been determined, to be inconsistent with the Constitution, such Bill or such provision shall not be passed except in the manner stated in the Determination of the Supreme Court:
Provided that it shall be lawful for such Bill to be passed after such amendment as would make the Bill cease to be inconsistent with the Constitution.-
- However, It cannot be argued that the 13-A has been validly passed by amending it as provided for by proviso to 123(4) because the Article 123 did not apply to the 13-A Bill as it is a constitutional amendment.
- In any event such an argument based on proviso to Article 123 (4)‚ is relevant only to the issue of validity of 13-A & not to the issue of jurisdiction because the Article 80 does not refer to Article 123. As such, even if a Bill is validly passed under the proviso to Article 123 (4), such an Act would not be protected by the preclusive clause of Article 80 (3).
- Accordingly Your Lordships Court has jurisdiction to enquire into validity of 13-A & hence into this application & is not precluded by the Article 80 (3).
- Further submissions on the Jurisdiction issue would be submitted towards the end of this submission.
Legal basis of challenge into the validity of the Thirteenth Amendment [-13-A-]
- The basis of the arguments on the validity of 13-A is based on the following legal issues:
Has the purported passing of 13-A has compled with the Supreme Court decision?
Does the majority decision of the Supreme Court ‚ say that -the Thirteenth Amendment Bill requires the approval by the People at a Referendum by virtue of ‚ the provisions of Article 83 ?
If the answer to this question is yes, then the fact that it was passed without the approval of the People at a Referendum is a breach of the Supreme Court Decision.
Does the passing of 13-A violated the Constitution?
Does the Constitution allows the 13-A to be passed into an Act without the approval of the People at a Referendum?
The article 80 (1) -” (3) requires the 13-A to be approved by the People at a Referendum in order to pass it into a valid law. As such, 13-A did not become law. As per Article 82 (6) the 13-A shall not be deemed to have amended the Constitution.
Accordingly, implementing the 13-A as valid law is a breach of both the Supreme Court decision & the Constitution.
There are a number of legal issues need to be considered in discussing the conduct of the Parliament in passing 13-A as law. In order to justify the above violation of the Constitution & the majority decision of the Supreme Court Parliament has acted outside its authority by interpreting the Constitutional provisions which is the sole & exclusive jurisdiction of the Supreme Court. Further,the Parliamentary interpretations are so flawed and serious as they could st a precedents to override Supreme Court decisions and amend the Constitution illegally as they wish. ‚
Issue arising from the approach adopted by the Parliament:
Is it lawful for the Parliament to delete the Preamble, New Articles 154G (2)(b)(ii) & 154G(3)(b)(ii) and then enact into law without the approval of the People at a Referendum.?
- The starting point should be to identify the majority decision of the Supreme Court. We set down herebelow the individual decisions‚ of their Lordships for the easy reference of Your Lordships Court-[Last two paragraphs of page 1309 and first two paragraphs of page 1310 of Hansard -" exhibited marked as P-3]:
Determinations of the Supreme Court
- -The determination of four Judges of this court viz: Chief Justice, Justice P. Colin Thome, Justice E. A. D. Atukorale and Justice H. D. Tambiah, is that for the reasons set out below neither the Bill nor any provision of the Thirteenth Amendment to the Constitution-a Bill to amend the Constitution of the Democratic Socialist Republic of Sri Lanka, requires approval by the People at a Referendum by virtue of the provisions of Article 83, and that once the said Bill is passed and the Constitution amended accordingly, the Provincial Councils Bill will not be inconsistent with the so amended Constitution.
The determination of Justice K. A. P. Ranasinghe is that the provisions of clause 154G(2)(b) and 3(b) of the “Bill to amend the Constitution of Sri Lanka (Thirteenth Amendment to the Constitution)” require approval by the People at a Referendum by virtue of the provisions of Article 83. He agrees with the view that no provision of the aforesaid Bill the Thirteenth Amendment to the Constitution is inconsistent with any of the provisions of Articles 2, 3, 4 or 9 of the Constitution. He states that the. constitutionality of the provisions of the Provincial Councils Bill will depend upon the aforesaid amendment to the Constitution becoming law, as set out by him, in terms of Article 83 of the Constitution.
The determination of the other four Judges viz: Justice R. S. Wanasundera, Justice L. H. de Alwis, Justice O. S. M. Seneviratne and Justice H. A. G. de Silva is that, the provisions of the Thirteenth Amendment to the Constitution require the approval by the People at a Referendum by virtue of the provisions of Article 83 of the Constitution.-
What is the majority decision?
- In order to identify the judgment of the majority, we need to refer to the Constitution for guidance. For the definition of the same we quote the following Article of the Constitution below:
-132‚ ‚ ‚ (4)‚ ‚ ‚ The judgment of the Supreme Court shall, when it is not an unanimous decision, be the decision of the majority.-
- This lead us to identify the decisions of their Lordships of the Supreme Court.‚ In this regard it is important to note what the reference to SC was. It is found at‚ page 1315 of the Hansard [Marked as P-3] -“last six lines.
–¦..The Constitutional ‚ jurisdiction vested in this Court by Article 120 of the Constitution to determine the question whether the Bills or any provision thereof are inconsistent with the Constitution has been invoked by the several petitioners in the above applications and by His Excellency the President by a written reference under Article 121.-
- Article 120 states as follows:‚ ‚ -120. The Supreme Court shall have sole and exclusive jurisdiction to determine any question as to whether any Bill or any provision thereof is inconsistent with the Constitution:
Provided that -“
(a)‚ ‚ In the case of a Bill described in its long title as being for the amendment of any provision of the Constitution, -¦-¦-¦..the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a Referendum by virtue of Article 83;
(b)‚ ‚ -¦.
- The first line in the last paragraph at page 1315 of the Annexure P-3 [Hansard]‚ identify the Bill as follows: -Two Bills titled -ËœThirteenth Amendment to the Constitution -“A Bill to amend the Constitution of the Democratic Socialist Republic of Sri Lanka-â„¢ and -ËœProvincial Councils Bill-â„¢ respectively were placed on the order paper -¦-¦-¦-¦-¦- so that the 13-A bill falls under the proviso 120 (a).
- Judgment consists of decision & reasoning. Accordingly, the answer to the above question, [the only question to be answered‚ under the relevant proviso to 120 (a) is -whether such Bill requires approval by the People at a Referendum by virtue of the provisions of Article 83?- It is important that the phrase -Bill or any provision thereof- has not been used in the question. It is the answer to this question that should be identified from the judgments quoted above. Applying the above formula, the decisions of the Justices to above question would be as follows:
- 27.‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ Replies to the relevant question:-
(a)‚ ‚ The decision of four Judges of the Supreme Court Viz: Chief Justice, Justice P. Colin Thome, Justice E. A. D. Atukorale and Justice H. D. Tambiah,:
Approval by the People at a Referendum is not necessary
(b)‚ ‚ The determination of Justice K. A. P. Ranasinghe:
Approval by the People at a Referendum is necessary
(c)‚ ‚ The determination of the other four Judges viz: Justice R. S. Wanasundera, Justice L. H. de Alwis, Justice O. S. M. Seneviratne and Justice H. A. G. de Silva:
Approval by the People at a Referendum is necessary
Accordingly, the majority decision is that an‚ approval by the People at a Referendum is necessary.
The Constitution does require this Bill, 13-A, to be approved at a Referendum which should be followed by the endorsement of the President-â„¢s certificate on the 13-A Bill as follows:
-This Bill has been duly approved by the People at a Referendum-
-‚ ‚ ‚ ‚ ‚ ‚ :
- As the 13-A bill was not so endorsed, it did not become law.
- As the determination of His Lordship Justice K.A.P. Ranasinghe, has been used by the Parliament to justify the purported passing of the 13-A Bill, an analysis of his determination would be helpful:
- The decision could be interpreted in two ways:
- The decision is that only the two provisions identified as 154G(2)(b) & (3)(b) need to be approved by People at a Referendum.[this means that the submitting of only those 2 provisions for approval at a Referendum is needed as that phrase is part of the decision]
- The decision is that the 13-A Bill [not just‚ two provisions] need to be approved at a referendum, the reason being that the two provisions 154G(2) (b) & (3)(b) being inconsistent. [this means that the reference to -the two provisions- does not from part of the decision -” it is only the reasoning.
Analysis of the Determination of Justice Ranasinghe:
- This matter comes under the proviso (a) to the Article 120, where the only question for the Court to decide is whether the Bill [not any provision of the Bill] requires the approval of the People at a Referendum. The answer is just -yes- or -no-. Anything else stated does no from a part of the decision. It is only the reasoning for the decision.
- Under the proviso (a) to the Article 120,‚ Supreme Court has no jurisdiction to decide anything other than the reply to the question stated therein. Accordingly, Court has no jurisdiction to decide that any provision of the Bill requires Referendum and any such decision would be null & void for want of jurisdiction. The decision need to be interpreted in a way that it is compatible with the Constitution.
- First question is -” Does the decision of Justice Ranasinghe provide the answer to the question [ to which the jurisdiction is limited] ? If two provisions of the Bill are inconsistent, obviously it makes the Bill too is inconsistent & need to be approved at a Referendum. Then decision could be divide into two parts-
- Referendum is necessary
- Get the approval for the two provisions specified.
Court has no jurisdiction to order or even to recommend to get approval for a given provision. Hence the 2nd option above is the decision.
If the first option is the decision, then the second part need to be ignored as the Court has no jurisdiction to make such a decision & accordingly, only the first part is the decision.
- When the decision is carefully analysed, it‚ becomes clear that it is the 2nd option that the Justice Ranasinghe actually intended. The relevant paragraph from the decision is quoted below: [Please see Exhibit P-3 -"Hansard -5th paragraph on page 1360 - the last paragraph of the Justie Ranasinghe-â„¢s determination]
- -There is just one other matter to be-referred to. Article 123(2) of the Constitution provides that, where this Court “determines that a Bill or any provision thereof is inconsistent with the Constitution”; this Court may” also “specify the nature of the amendments which would make the Bill or such provision cease to be inconsistent”. I have considered whether such a statement should be made. In view, however, of the fact that the Reference requires this Court only to state whether a Referendum is required, ‘the fact that it was also submitted at the hearing that the only jurisdiction this Court exercises in these proceedings is to determine, in terms of Proviso (a) of Article 120 of the Constitution, whether the Bill referred to requires the approval by the People at a Referendum, and the fact that, at the hearing, this matter was also put to learned Counsel for the Petitioners but was not pursued, I do not propose to make any such statement.- [Emphasis added]
- The following inferences could be drawn from the above part of the Determination.
- -consider(ing) whether such a statement should be made- involves the following steps.
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ i.‚ ‚ ‚ Is the jurisdiction limited only to making statement as to whether a Referendum is required
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ii.‚ ‚ ‚ If it is not limited so, does the Article 123 (2) apply? [because if that is theonly question to be answered, obviously 123(2) does not apply.
‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ iii.‚ ‚ ‚ As this article uses the word -may-, is this an instance such a statement could be made?
- Having raised this issue -“as stated by the Justice Ranasinghe- The above issue was raised at the hearing -” no objection. Impliedly admitted & hence no issue. An issue -“that the Bill cannot be passed without Referendum by amending it -” was settled by consent in the open court & hence cannot be reopened.
- It has been accepted by J.Ranasinghe that the only jurisdiction is -“in short -yes- or -no- to the specific question [whether the Bill -“not any provision- need the approval by People at a Referendum & hence anything else said does not comprise a part of the decision.
- Justice Ranasinghe has clearly indicated that he did note the constitutional limitation & hence should be considered as having acted within the limits of the Constitution.
- ‚ Secondly, it has been concluded that the consideration of the legal issue as to whether it is possible to amend the Bill and pass it without a Referendum using Article 123 was voluntarily abandoned even having raised the issue by the Justice Ranasinghe.
- What the parties abandoned was not the right to amend under Article 123 as there is o such right as 123 is not applicable to 13-A.‚ What parties abandoned was the opportunity to seek the Supreme Court-â„¢s interpretation as to the applicability of Article 123 to the 13-A Bill thereby impliedly acknowledging that they do not seek to Pass 13-A without a Referendum. It is significant that this abandonment was in spite of the Courts bringing their attention to the issue.
- The implied final conclusion is that Justice Ranasinghe-â„¢s decision not only states that the Bill need Referendum, but also excluded any option to amend it and pass without a Referendum.
Reasons for the majority decision on 13-A
- Significance & the extent of violation of Constitution caused by implementation of 13-A becomes evident when we consider the reasons for the full bench determination.
- When we consider the reasons we have to consider only the reasons given by the 5 Judges who decided that a Referendum is necessary, because-
- This is a clear yes or no decision and there are no intermediate answers. The minority decision has to be rejected along with the reasons because we cannot accept‚ the reasons if we reject the decision.
- Out of 5 judges who decided that a Referendum is needed, only one of the Judges, namely Justice KAP Ranasinghe stated that only two provisions are inconsistent. This is minority reasoning within the majority decision.
- His Lordship Justice Wanasundera states as follows in the last 2 paragraphs of his decision: [last two paragraphs at page 1357 -"P-3 of the bundle]:
-The Thirteenth Amendment requires all such persons mentioned above to take instead the oath of office-set out in the Fourth Schedule to the Constitution. this omission, it has been submitted, is discriminatory and also shows the intention of the Bill to create or to remove the restraints that prevent the creation of conditions for a separate State.
It would be seen from the forgoing that the Thirteenth Amendment seeks to create an arrangement which is structurally in conflict with the structure of the Constitution‚ and with its provisions both express & implied. Further, the provisions of the Thirteenth Amendment also contravene both the express & implied provisions of the Constitution. The Bill therefore cannot be passed without at least a referendum.-
At page 1360 of P-3, Justice Seneviratne states in the last paragraph of his Lordships determination as follows: -I have read the order made by my brother Wanasundra J., and I fully agree with the order which has held that for many multitudinous reasons that the THIRTEENTH Amendment requires a Referendum.-
At page 1372 of P-3, Their Lordships, L.H. DE Alwis J and H.A.G. De Silva J state as follows. After we had prepared our determination we have had the benefit of perusing the determination of Wanasundera J. We find that‚ all the matters dealt with by us are covered by Wanasudera,J. We are further in entire agreement with him on all the other matters referred to in his determination.
- The majority reasons of majority decision are given above. This shows the extents of violation of the Constitution, if the 13-A were to continue. It has been submitted that the 13-A cannot be passed without a Referendum by amending it. Even if the Constitution had provided for it, 13-A cannot be amended because of the extent of inconsistency with the Constitution.
Inherent Jurisdiction of the Supreme Court
- Purporting to pass a crucial bill violating the Constitution & disregarding the decision of the Supreme Court decision is an unprecedented act and destroys the whole democratic foundation. In view of the sworn commitment of every citizen concerned to uphold the Constitution, this position need to be remedied.
- The 13-A has been purportedly passed by providing flawed interpretations to the Constitution to justify the said enacting of the 13-A bill into an Act. This sets a dangerous precedents for the future which would paralyse the future application of the Constitution.‚ As such, the Supreme Court, in its capacity as the institution vested with the sole & exclusive jurisdiction to interpret the Constitution, the aforesaid flawed interpretations of the State should be corrected by replacing them with the correct interpretations. Accordingly, it is crucially important that the Supreme Court enquire into the validity of the 13-A by exercising its jurisdiction over this application.
- In Visuvalingm and others -v- Liyanage and others [no:1]  2 Sri LR 311, The following‚ quote of J. Wanasundera at page242 is very relevant‚ in this case. -First, I would like to emphasise that the issues before us are undoubtedly of great Constitutional importance having far-reaching consequences. Being matters of constitutional law and in particular, affecting the authority of judges and the jurisdiction of the Supreme Court, these issues, because of their importance, had necessarily‚ to be disposed of on the first occasion they were raised or brought to our notice. What is in issue is a direct challenge to the authority and jurisdiction of the Supreme Court-¦-¦.-
- Only difference in this case is -“in addition to the above, there is a serious continuing violation‚ of the‚ Constitution leading to further serious violations in the near future.
- Even though the challenge to a Parliamentary Act is strongly restricted in countries like the UK where the Parliamentary Supremacy prevails, this type of instances has been allowed to be scrutinised by the Courts.
Further Legal Precedents
- The following quotes from the Judgment on Jackson and others (Appellants) v. Her Majesty’s Attorney General (Respondent) - UKHL 56 -on appeal from:  EWCA Civ 126 is quite relevant to this application and are given below: [Relevant paragraph numbers are given]
- Lord Nicholls of Birkenhead on the jurisdiction issue in a challenge to the validity of a Parliamentary Act:
-LORD NICHOLLS OF BIRKENHEAD
- ‚ -¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦-¦.. -¦-¦-¦-¦-¦-¦-¦-¦ The jurisdiction of the courts
- ‚ ‚ Before considering this issue of interpretation I must first say something about the jurisdiction of the court to entertain these proceedings at all. These proceedings are highly unusual. At first sight a challenge in court to the validity of a statute seems to offend the fundamental constitutional principle that courts will not look behind an Act of Parliament and investigate the process by which it was enacted. Those are matters for Parliament, not the courts. It is for each House to judge the lawfulness of its own proceedings. The authorities establishing this principle can be found gathered in Pickin v British Railways Board  AC 765. This principle is a reflection of article 9 of the Bill of Rights 1689: ‘-¦ proceedings in Parliament ought not to be impeached or questioned in any court’.
- ‚ ‚ In accordance with this principle it would not be open to a court to investigate the conduct of the proceedings in Parliament on the Bill for the 1949 Act to see whether they complied with section 2 of the 1911 Act. Indeed, the 1911 Act makes express provision to this effect. Section 2(2) provides for the Speaker to endorse on a Bill presented to His Majesty for assent pursuant to section 2 a certificate signed by him that the provisions of the section have been duly complied with. Section 3 provides this certificate shall be conclusive ‘for all purposes’ and ‘shall not be questioned in any court of law’.
- 51.‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ In the present case the claimants do not dispute this constitutional principle. Nor do they seek to gainsay the conclusiveness of the certificate endorsed by the Speaker on the Bill for the Parliament Act 1949 as required by section 2(2) of the 1911 Act. Their challenge to the lawfulness of the 1949 Act is founded on a different and prior ground: the proper interpretation of section 2(1) of the 1911 Act. On this issue the court’s jurisdiction cannot be doubted. This question of statutory interpretation is properly cognisable by a court of law even though it relates to the legislative process. Statutes create law. The proper interpretation of a statute is a matter for the courts, not Parliament. This principle is as fundamental in this country’s constitution as the principle that Parliament has exclusive cognisance (jurisdiction) over its own affairs.-‚ [emphasis added]
- In the same case, Lord Bingham of Cornhill discuss the same issue:
LORD BINGHAM OF CORNHILL
- ‚ ‚ Like the Court of Appeal (see paras 11-13 of its judgment), I feel some sense of strangeness at the exercise which the courts have (with the acquiescence of the Attorney General) been invited to undertake in these proceedings. The authority of Pickin v British Railways Board  AC 765 is unquestioned, and it was there very clearly decided that “the courts in this country have no power to declare enacted law to be invalid” (per Lord Simon of Glaisdale at p 798). I am, however, persuaded that the present proceedings are legitimate, for two reasons. First, in Pickin, unlike the present case, it was sought to investigate the internal workings and procedures of Parliament to demonstrate that it had been misled and so had proceeded on a false basis. This was held to be illegitimate: see Lord Reid at p 787, Lord Morris of Borth-y-Gest at p 790, Lord Wilberforce at p 796, Lord Simon of Glaisdale at p 800 and Lord Cross of Chelsea at p 802. Lord Reid quoted with approval a passage of Lord Campbell’s opinion in Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710, 725, where he said:
“All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its various stages through both Houses”.
Here, the court looks to the parliamentary roll and sees bills (the 1949 Act, and then the 2004 Act) which have not passed both Houses. The issue concerns no question of parliamentary procedure such as would, and could only, be the subject of parliamentary inquiry, but a question whether, in Lord Simon’s language, these Acts are “enacted law”. My second reason is more practical. The appellants have raised a question of law which cannot, as such, be resolved by Parliament. But it would not be satisfactory, or consistent with the rule of law, if it could not be resolved at all. So it seems to me necessary that the courts should resolve it, and that to do so involves no breach of constitutional propriety. [Emphasis added]
- In the same case, Lord Brown of Eaton-Under-Heywood discuss the same issue below:
LORD BROWN OF EATON-UNDER-HEYWOOD
- ‚ ‚ These proceedings attack the Hunting Act 2004. Odd as it may seem, however, whatever views we hold upon the merits or demerits of hunting, or of the legislation which now bans it, are quite immaterial. Instead the challenge is directed to the parliamentary procedure used to enact the ban, a procedure which invoked the Parliament Act 1949 (the 1949 Act). Put shortly, this attack upon the Hunting Act stands or falls entirely upon the validity of the 1949 Act and that in turn depends upon whether it was lawful to force that Act through Parliament by the use of the Parliament Act 1911 (the 1911 Act). The precise terms of section 2(1) of the 1911 Act are central to this dispute. Rather, however, than set them out yet again, I shall take them as read.
- ‚ ‚ To many it will seem remarkable that your Lordships should now be asked, 56 years after the passage of the 1949 Act, to declare it invalid. At first blush, indeed, given that the 1949 Act is an Act of Parliament, it is somewhat surprising that the courts should be examining its validity at all. It was passed (as were two other Acts of Parliament before it) “in accordance with the provisions of the Parliament Act 1911 and by the authority of the same”-”such being the words of enactment expressly provided for by section 4(1) of the 1911 Act. It became an Act of Parliament precisely in the circumstances and upon the fulfilment of the conditions provided for by section 2(1) of the 1911 Act. And when as a Bill it was presented to His Majesty for assent, it had endorsed on it, as section 2(2) of the 1911 Act required, the certificate of the Speaker of the House of Commons signed by him that the provisions of section 2 had been duly complied with-”section 3 of the Act expressly providing that:
“Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes, and shall not be questioned in any court of law.”
- 182.‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ ‚ Yet these considerations notwithstanding, the Attorney General accepts, as he has throughout this litigation, that the courts are properly seised of this challenge to the 1949 Act, and that the attack upon its validity is in no way foreclosed either by the endorsement upon it of the Speaker’s certificate of compliance with the 1911 Act, or by the long passage of time since its enactment, or by its subsequent invocation by both main political parties to enact other legislation too. Your Lordships must, therefore, cast aside any initial inhibitions about entering upon this unusual challenge. There is no need here for judicial reticence. Rather your Lordships must examine the challenge for all the world as if the 1949 Act had only recently received the Royal Assent. [Emphasis added]
- Accordingly, petitioners submit that Supreme Court has Jurisdiction to hear the case and petitioners may be granted leave to proceed as this involves crucially important constitutional issues which only the Supreme Court has exclusive jurisdiction to resolve.
- It is respectfully submitted that the arguments raised herein may be elaborated and further new legal arguments may be submitted, if necessity were to arise.
S.V.A.R.A. Samarasinghe ‚ (Attorney-at-Law)
Counsel for the Petitioner