Challenge to Divi Neguma Bill before SC: ‘Delivering copy of petition to Secy. Gen. unconstitutional’

Speaker Chamal Rajapaksa yesterday delivering his decision in relation to the petition filed before the Supreme Court challenging the Divi Neguma Bill in Parliament stated that according to Article 121 (1) of the Constitution, a reference made by the President or a petition by a citizen to the Supreme Court should be delivered to the Speaker of Parliament and not to the Secretary General of Parliament.

He made this observation in relation to a statement made by him on September 18 in Parliament that he would deliver his decision on a further date as to whether it was constitutional to deliver a copy of the Divi Neguma Bill filed in the Supreme Court to an official in Parliament other than the Speaker of Parliament.

Delivering his decision the Speaker stated that such a delivery of a copy of a petition to the Secretary General of Parliament shall not be treated by Parliament as due compliance with the terms of Article 121 (1) of the Constitution.

‘Speaker Chamal Rajapaksa delivering his decision further said, “it is convenient to state concisely the basis of the view I take”.

‘Article 121 (1) of the constitution states that where the petition of a citizen is addressed to the Supreme Court, “a copy thereof shall at the same time be delivered to the Speaker.”

‘There is a compelling rationale underpinning this mandatory provision of law.

‘On receipt of the copy of the petition in terms of Article 121 (1), the Speaker is called upon by the constitution to adopt a course of action compulsorily. This is a fundamental and inescapable public duty imposed by the Constitution on the Speaker. This duty, attributed to the Speaker in explicit terms by provisions contained in Article 121 (2), is that “no proceedings shall be had in Parliament in relation to such Bill until the determination of the Supreme Court has been made.”

‘The Speaker, as a practical matter, is able to comply with this mandatory provision only if the addressing of the petition by a citizen to the Supreme Court is brought to the notice of the Speaker himself.

‘On the other hand, if this notice is given not to the Speaker but to a third party, knowledge of this may or may not reach the Speaker. This would depend on the act of a third party. If, then, the third party fails to communicate with the Speaker in time, it will be impossible for the Speaker to comply with the mandatory provisions set out in Article 121 (2).

In this event, proceedings in Parliament in relation to the impugned Bill will continue without interruption and may culminate in the enactment of the Bill as an Act of Parliament. Thereafter the legislation is protected from challenge and it is for this reason that the sacrosanct rights of the citizen will be seriously eroded.

‘The right to interpret the constitution is the province solely of the Supreme Court that must not be disturbed and their learned decisions on interpretation must be treated with great respect.

It is the interpretation of the Supreme Court that must stand. However, since this could affect the rights of the citizen, it is my desire to bring to the notice of the Supreme Court, the complications arising from their determination and request citizens desirous of challenging Bills, to be vigilant, in view of that determination, and ensure that the copy of the petition reaches the Speaker without any delay to enable the proceedings on the Bill to be stayed.

I should not make any ruling on this matter in following the constitution, as it is a territory that is the exclusive preserve of the Supreme Court. Nevertheless, the Supreme Court is requested to give earnest consideration on a revisit to make a vested right of a citizen comprehensively effective as intended in the Constitution mindful of the procedures of Parliament.

The Supreme Court has repeatedly held, a Bill that has been passed by Parliament and once become law, no court shall inquire into it or pronounce upon or in any manner call in to question the validity of such Act on any ground whatsoever. A citizen should not lose the benefits of a remedy available to him as the Supreme Court has expressed cogently in referring to Article 121 (2) ‘The objective and the purpose therefore is to ensure that parliamentary proceedings in respect of the Bill in question are suspended during the pendency of the inquiry before the Supreme Court.”

The Chapters X and XI of the Constitution dealing with the Legislature have been drafted by the framers of our Constitution with care and caution safeguarding the supremacy of Parliament and when it comes to interpreting such provisions, it must be done mindful of the practices and procedures, customs and conventions which are part and parcel of our parliamentary system. Otherwise it would disturb the working of Parliament. More so as the chamber of Peoples’ Representatives, we cannot forfeit or forgo any rights conferred to the People by the Constitution.

We must be grateful to the makers of the Constitution for safeguarding the concept of the Supremacy of Parliament. It is necessary, as well, to rectify a bona fide error made by the Supreme Court. There appears to be some confusion relating to the parties in the determination and it is desirable to have the record placed in its proper perspective. In the said determination it is stated (and I quote) “In the instant applications viz in 02/2012 as stated earlier, the petition had been delivered to the Hon Speaker only on 20.08.2012 whereas in 03/2012, it had been delivered on 17.08.2012 not to the Hon Speaker, but to the Secretary General of the Parliament.” (Unquote)

The records in Parliament reveal the following:

SD 02/2012 filed by BPDJW Nanayakkara was delivered to the Secretary General of Parliament on 17.08.2012. SD 03/2012 filed by Centre of Policy Alternatives (Guarantee) Ltd and Dr Paikiasothy Saravanamuttu was delivered to the Speaker on 20.08.2012.

The determinations concerning SD 02/2012 and 03/2012 were where preliminary objections were raised on the aforesaid matters, which are referred to in the course of this ruling. There was another petition filed (01/2012) in respect of the said Bill on which the Supreme Court made a determination where the copy was addressed to the Speaker and was delivered within time.

SD 01/2012 filed by CM Kaluge was delivered to the Speaker on 17.08.2012.

I make a decision on this 9th day of October 2012, that in terms of Article 121 (1) of the Constitution a copy of a reference made by the President or petition by a Citizen to the Supreme Court shall at the same time be delivered to the Speaker and not to the Secretary General of Parliament. Such a delivery to the Secretary General of Parliament shall not be treated by Parliament as due compliance with the terms of Article 121 (1) of the Constitution.

I direct the Secretary General of Parliament to send a copy of this decision to His Excellency the President and to the Hon the Judges of the Supreme Court.

The public will have notice of this decision on its being published in Hansard and in the Parliament web page www.parliament.lk and from the media. In addition, it will be judicially noticed in terms of Section 9 of the Parliament (Powers and Privileges) Act.

 

Courtesy: Daily News