In determining the constitutionality of the Divineguma Bill, the Supreme Court said it will have to be referred by the President to the Provincial Councils (PCs), prior to it becoming law. As the Bill contains subject matters referred to in the Provincial Councils list, under Article 154 (G) (3) of the Constitution, it is mandatory [...]

Feeds Editorials Times Online

News

PCs have to be consulted before Divineguma Bill becomes law: SC

By Chandani Kirinde
View(s):

In determining the constitutionality of the Divineguma Bill, the Supreme Court said it will have to be referred by the President to the Provincial Councils (PCs), prior to it becoming law.

As the Bill contains subject matters referred to in the Provincial Councils list, under Article 154 (G) (3) of the Constitution, it is mandatory for the Central Government to consult the PCs before placing such type of Bill on the Order Paper of Parliament, the Court said.

The Court’s determination was announced in Parliament on Tuesday by Speaker Chamal Rajapaksa.
The Bench comprised Chief Justice Dr.Shirani A.Bandaranayake,Justices Priyasath Dep, PC., and Eva Wanasundera PC.
Four petitioners challenged the constitutionality of the Bill which seeks to amalgamate the Samurdhi Authority, the Udarata Development Authority and the Southern Development Authority into one body and establish Devineguma community-based banking societies.

The Bill was challenged on the grounds that it had been placed on the Order Paper of Parliament contrary to Article 154 (G) (3) of the Constitution as the Bill deals with several subject matters that are referred to in the Provincial Council List as set out in the Ninth Schedule to the Constitution.

The Solicitor General argued that the Bill in question in its entirety does not impinge on the powers and functions of the PCs or any other matters stipulated in the Provincial Council List and relied on the majority determination on the Thirteenth Amendment to the Constitution Bill and the Provincial Councils Bill, where it was stated that the PCs do not exercise sovereign legislative power and are only subsidiary bodies exercising limited legislative power.

The Court ruled while it is correct that in the determination on the 13th Amendment the majority judgment had clearly referred to the said position, in this instance the question which arises here is not with regard to the authority that has been given to the PCs but with regard to the authority of the Central Government to pass legislation on subjects stipulated in the PC list set out in the Ninth Schedule to the Constitution.

“Considering the purpose for which the 13th Amendment was introduced and the establishment of the PCs, the procedure laid down has to be regarded as mandatory since otherwise the object of the said Article would be defeated,” the Court said.
The determination also stated that when such authority has been attributed to the PCs, by way of provisions contained in the Constitution, that authority cannot be taken away unless by way of following the procedure laid down to amend such constitutional provisions.

The Supreme Court stated that as the Bill has been placed on the Order Paper without such compliance, no determination would be made at this stage on the other grounds in which the Bill has been challenged.

Before the Bill was taken up for consideration, the Solicitor General made a preliminary objection stating that two of the petitions should be rejected for non-compliance with the mandatory procedure stipulated in Article 121 (1) the Constitution which makes it necessary to deliver copies of the petitions to the Speaker of Parliament within a specified period of time to invoke the jurisdiction of the Court.

As the Bill was placed on the Order Book of Parliament on August 10, 2012, the period of one week should end on August 17, 2012 and therefore the petitions should have been presented to the Supreme Court and the copies delivered to the Speaker on or before August 17.

However, one of the petitions had been delivered to the Speaker only on September 20 while the other, although sent before August 17, had not been sent to the Speaker but instead sent to the Secretary General of Parliament.
Counsel for the petitioner said the petition was filed before the Supreme Court and a copy had been delivered to the Speaker on the same day by registered post and the relevant registered postal receipts were annexed as proof.

The Court in its ruling on this objection said the question that arises is the meaning that should be given to the world delivered in terms of Article 121 (1) of the Constitution under which the petitioner has to act simultaneously to see that the petition is filed in the Supreme Court and delivered to the Speaker within the stipulated time period.

The Court said the relevant petition had been filed on August 17, 2012 and sent to the Speaker the same day by registered post.
The Court said “The meaning of the word ‘delivered’ could be defined as mailed or dispatched. The Oxford English dictionary defines the word ‘delivered’ as the action of handing over or conveying into the hands of another especially the action of a carrier in delivering letters or goods entrusted to him for a conveyance to a person at a distance. Such could be easily carried out by way of posting and in the present matter the documents had been sent by registered post on the same day it was filed in the Supreme Court.”

The Court made reference to the determination of the Court in the Sri Lanka Telecommunication Bill which was cited by the Solicitor General in his submission. The Court said that Bill had been placed on the Order Book of Parliament on March 5, 1991 and the period of one week came to an end on March 12,1991. The petition to the Supreme Court had been submitted within one week but the copy to the Speaker had been posted a day later.

In this case, the Court ruled it is clearly evident that the petitioner had properly invoked the jurisdiction of the Supreme Court to hear and determine the matter in the petition in terms of Article 121 (1) of the Constitution.

The second objection raised by the Solicitor General was that the petition had been sent to the Secretary General of Parliament and not to the Speaker. Counsel for the petitioner stated that the objection is analogous to a submission that pleadings delivered to the Registrar of the Court are not reaching the Chief Justice and said the objection was utterly frivolous and contrary to the spirit and purpose of the said Article.

The Court said the objective and purpose of the said Article is to ensure that Parliamentary proceedings in respect of the Bill in question are suspended during the duration of the inquiry before the Supreme Court. “Whilst the process of sending the petition filed before the Supreme Court within the specified period to the Speaker is mandatory it cannot be said that the documents being sent to the Secretary General of Parliament within the stipulated time frame is not in compliance with Article 121,” the Court ruled.

Hence the preliminary objections were overruled.




Share This Post

DeliciousDiggGoogleStumbleuponRedditTechnoratiYahooBloggerMyspace
comments powered by Disqus

Advertising Rates

Please contact the advertising office on 011 - 2479521 for the advertising rates.