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Given below are excerpts of the Supreme Court Determination on the controversial ‘Expropriation Bill’, tabled by the Speaker in Parliament on November 8, which are being published in view of the wide public interest, as seen by numerous statements issued and seminars held.
In their ruling, Chief Justice Dr. Shirani A. Bandaranayake and Justices P.A. Ratnayake, PC and Chandra Ekanayake, said:
The Government had been of the view that it is an inherent obligation on its part to ensure its People maximum benefits from the limited resources that are available by securing and protecting as effectively as possible the social order in which social, economic and political justice would prevail. Having the basic welfare of the people in the country in mind, the Government had divested land and granted extensive concessions to promote economic activities with the objective of ensuring maximum benefits to the People. This has been carried out in the national interest. However it has been identified that there are Underutilized Assets and Underperforming Enterprises that would not permit to perform the said obligation on the part of the Government to ensure its People the maximum benefits from its limited resources that are available.
Accordingly the Bill in question would make provision for the vesting in the State, two types of assets known as Underutilized Assets or Underperforming Enterprises. This would be in conformity of the Directive Principles of State Policy, referred to in rticle 27 and specifically in Article 27(2) b and 27(2) d of the Constitution. These two Articles refer to the following objectives of the State, based on the Directive Principles of State Policy.
"27(2) b - the promotion of the welfare of the People by securing and protecting as effectively as it may, a social order in which justice (social, economic and political) shall guide all the institutions of the national life.
27(2) d - the rapid development of the whole country by means of public and private economic activity and by laws prescribing such planning and controls as may be expedient for directing and co-ordinating such public and private economic activity towards social objectives and the public weal."
On an examination of the objectives of the Bill, it is clearly seen that the said Bill deals with Underutilized Assets as well as Underperforming Enterprises.
The Underutilized Assets deal with two categories of land.
The first category refers to State land alienated within a period of 20 years prior to the date of the coming into operation of this Act, to a person for the purpose of generating employment, foreign exchange earnings or savings or economic activities beneficial to the public, but where such benefits have not accrued and therefore being prejudiced to the national economy and public interest.
The second category deals with land owned by, a person who had been granted within a period of 20 years prior to the date of coming into operation of this Act, either tax incentives under any tax related law, incentives under the Board of Investment law or Regulations framed there under or any Government Guarantees on the basis that the related operations proposed to be carried out by such person will result in generating employment, foreign exchange earnings or savings or economic activities beneficed to the public, but where such benefits as aforesaid have not accrued and therefore being prejudicial to the national economy and public interest.
An Underperforming Enterprises on the other hand would mean a legal entity such as a company, institution or body established by or under any written Law for the time being in force, in which the Government owns shares and where the Government paid contigent liabilities of such Enterprise and is engaged in protracted litigation regarding such Enterprise, which is prejudicial to the national economy and public interest.
The above description shows that for the purpose of this Bill, Assets and Enterprises had been classified and a question arose as to whether such classification would make the said provisions inconsistent with Article 12(1) of the Constitution.
“… it is evident that there is a clear rational nexus between the object sought to be achieved by the Bill in question and the differentiation it has made, and in such instance there cannot be a violation of the provisions contained- in Article 12(1) of the Constitution.”
Learned Deputy Solicitor General submitted that the classification specified in the Bill is permissible in terms of Article 12(1) of the Constitution. He further contended that even if there has been any inconsistency, the restriction placed in by the Provisions of the Bill would be permitted in terms of Article 15(7) of the Constitution.
Since the present Bill contains provisions in meeting the ‘just requirements of the general welfare of a democratic society’, the restrictions, if any envisaged by the Bill could easily come within the provisions of the said Article 15(7) of the Constitution. However there is no necessity to go into the applicability of Article 15(7) as there is no inconsistency with Article 12(l) of the Constitution.
Learned Deputy Solicitor General stated that Underperforming Enterprises encompass situations where the Government is engaged in protracted litigation. It was submitted that having such litigation does not mean that judicial power could be exercised through the Bill, or there would be interference in the exercise of judicial power.
“… (on the basis of the aforesaid) it is apparent that the present Bill contains no provisions which would provide for the exercise of judicial Power or the interference in the exercise of judicial power in relation to Underperforming Enterprises.”
Learned Deputy Solicitor General submitted that the Bill deals with National Policy which is a matter within the Reserved List Introduced by the 13th Amendment to the Constitution. The 13th Amendment to the Constitution, which made provision for the establishment of Provincial Councils that were empowered to make statutes applicable to the Province, had clearly stipulated that such Councils would have no power to make statutes on any matter set out in the Reserved List. Accordingly the legislative power with regard to the National Policy on all subjects and functions are vested with the Central GovernSince the present Bill deals with National Policy, which is a matter within the Reserved List, the Parliament has the authority and, is competent to legislate.
On a consideration of the totality of the aforementioned, it is apparent that no provision of the Bill is inconsistent with any provisions of the Constitution. For the reasons aforementioned we make a determination that in terms of Article 23 (1) of the Constitution that neither the Bill nor any provision thereof is inconsistent with the Constitution.
Nihal challenges Bill
Public interest activist, Nihal Sri Ameresekere in supporting his Fundamental Rights Petition made a brief submission to the Supreme Court when the matter came up on November 25 before the Supreme Court Bench presided by Justices N.G. Amaratunga, Suresh handra and Sathya Hettige.
The essence of Ameresekere’s submission was that the determination by the Supreme Court on an Urgent Bill, submitted in terms of Article 122 of the Constitution is governed by Article 123(3) of the Constitution. This stipulates that in the case of a Bill endorsed as an Urgent Bill as provided in Article 122, then if the Supreme Court entertains a doubt, whether the Bill or any provision thereof is inconsistent with the Constitution, Article 123(3) of the Constitution says that it shall be deemed to have been determined that the Bill or such provision of the Bill is inconsistent with the Constitution.
The petitioner’s argument was that this was an inbuilt check and balance enshrined in the Constitution in the case of Bills, stamped as Urgent Bills, in that, such Bills must be above the threshold of any doubt being entertained thereon by the Supreme Court. The entertainment of any doubt by the Supreme Court renders the Bill to be deemed to be inconsistent as seen in Article 123(3) of the Constitution, according to Mr Ameresekere’s submission.
He drew a distinction that this was different from the instance, where the Supreme Court is called upon to make a Determination on a normal Bill, which is not an Urgent Bill, when challenged by a citizen under Article 121 of the Constitution, where the Supreme Court is called upon to make a Determination. In contrast to such a situation, Mr Ameresekere argued that Article 123(3) places a threshold for an Urgent Bill to be deemed to be inconsistent with the Constitution, if the Supreme Court entertains any doubt, and that the Supreme Court Determination on the ‘Expropriation Bill’, which was an Urgent Bill, discloses that several issues and questions had been entertained by the Supreme Court, with answers given on submissions made by the Deputy Solicitor General.
The petitioner submitted to Court that in the foregoing circumstances in his view, the Supreme Court Determination on the ‘Expropriation Bill’ was per-incuriam, by issues and questions having been entertained, as revealed by the Determination. He contended that that the public had not been heard, and that only the Deputy Solicitor General had made submissions in the Supreme Court at the hearing, in view of the circumstances of an Urgent Bill.
Mr Ameresekere’s submission was that Article 80 (3) precludes the Supreme Court inquiring into or pronouncing upon or calling into question the validity of an Act, once the Speaker certifies a Bill, upon which it becomes Law; but that Article 80(3) does not preclude the Supreme Court from correcting a per-incuriam Determination, on a review in terms of Article 132 of the Constitution, on a matter involving in the Opinion of the Chief Justice, as one of general and public importance. Mr Ameresekere’s stance was that this was a matter of general and public importance, as echoed by public concerns, which have arisen on this controversial ‘Expropriation Bill’.
The Court issued notice on the respondents, including the Minister of Finance, Minister of Economic Development, Secretary to the Treasury, Minister of External Affairs, former Attorney Generals C.R. de Silva and Mohan Peiris, Minister of Justice, Secretry - Ministry of Justice, Speaker of Parliament and the Attorney General. On an application made, he was permitted to file an Amended Petition by December 16, to be noticed on the Respondents through the Registrar of the Supreme Court, and to support his application in January.
http://www.sundaytimes.lk/111211/BusinessTimes/bt32.html
In their ruling, Chief Justice Dr. Shirani A. Bandaranayake and Justices P.A. Ratnayake, PC and Chandra Ekanayake, said:
The Government had been of the view that it is an inherent obligation on its part to ensure its People maximum benefits from the limited resources that are available by securing and protecting as effectively as possible the social order in which social, economic and political justice would prevail. Having the basic welfare of the people in the country in mind, the Government had divested land and granted extensive concessions to promote economic activities with the objective of ensuring maximum benefits to the People. This has been carried out in the national interest. However it has been identified that there are Underutilized Assets and Underperforming Enterprises that would not permit to perform the said obligation on the part of the Government to ensure its People the maximum benefits from its limited resources that are available.
Accordingly the Bill in question would make provision for the vesting in the State, two types of assets known as Underutilized Assets or Underperforming Enterprises. This would be in conformity of the Directive Principles of State Policy, referred to in rticle 27 and specifically in Article 27(2) b and 27(2) d of the Constitution. These two Articles refer to the following objectives of the State, based on the Directive Principles of State Policy.
"27(2) b - the promotion of the welfare of the People by securing and protecting as effectively as it may, a social order in which justice (social, economic and political) shall guide all the institutions of the national life.
27(2) d - the rapid development of the whole country by means of public and private economic activity and by laws prescribing such planning and controls as may be expedient for directing and co-ordinating such public and private economic activity towards social objectives and the public weal."
On an examination of the objectives of the Bill, it is clearly seen that the said Bill deals with Underutilized Assets as well as Underperforming Enterprises.
The Underutilized Assets deal with two categories of land.
The first category refers to State land alienated within a period of 20 years prior to the date of the coming into operation of this Act, to a person for the purpose of generating employment, foreign exchange earnings or savings or economic activities beneficial to the public, but where such benefits have not accrued and therefore being prejudiced to the national economy and public interest.
The second category deals with land owned by, a person who had been granted within a period of 20 years prior to the date of coming into operation of this Act, either tax incentives under any tax related law, incentives under the Board of Investment law or Regulations framed there under or any Government Guarantees on the basis that the related operations proposed to be carried out by such person will result in generating employment, foreign exchange earnings or savings or economic activities beneficed to the public, but where such benefits as aforesaid have not accrued and therefore being prejudicial to the national economy and public interest.
An Underperforming Enterprises on the other hand would mean a legal entity such as a company, institution or body established by or under any written Law for the time being in force, in which the Government owns shares and where the Government paid contigent liabilities of such Enterprise and is engaged in protracted litigation regarding such Enterprise, which is prejudicial to the national economy and public interest.
The above description shows that for the purpose of this Bill, Assets and Enterprises had been classified and a question arose as to whether such classification would make the said provisions inconsistent with Article 12(1) of the Constitution.
“… it is evident that there is a clear rational nexus between the object sought to be achieved by the Bill in question and the differentiation it has made, and in such instance there cannot be a violation of the provisions contained- in Article 12(1) of the Constitution.”
Learned Deputy Solicitor General submitted that the classification specified in the Bill is permissible in terms of Article 12(1) of the Constitution. He further contended that even if there has been any inconsistency, the restriction placed in by the Provisions of the Bill would be permitted in terms of Article 15(7) of the Constitution.
Since the present Bill contains provisions in meeting the ‘just requirements of the general welfare of a democratic society’, the restrictions, if any envisaged by the Bill could easily come within the provisions of the said Article 15(7) of the Constitution. However there is no necessity to go into the applicability of Article 15(7) as there is no inconsistency with Article 12(l) of the Constitution.
Learned Deputy Solicitor General stated that Underperforming Enterprises encompass situations where the Government is engaged in protracted litigation. It was submitted that having such litigation does not mean that judicial power could be exercised through the Bill, or there would be interference in the exercise of judicial power.
“… (on the basis of the aforesaid) it is apparent that the present Bill contains no provisions which would provide for the exercise of judicial Power or the interference in the exercise of judicial power in relation to Underperforming Enterprises.”
Learned Deputy Solicitor General submitted that the Bill deals with National Policy which is a matter within the Reserved List Introduced by the 13th Amendment to the Constitution. The 13th Amendment to the Constitution, which made provision for the establishment of Provincial Councils that were empowered to make statutes applicable to the Province, had clearly stipulated that such Councils would have no power to make statutes on any matter set out in the Reserved List. Accordingly the legislative power with regard to the National Policy on all subjects and functions are vested with the Central GovernSince the present Bill deals with National Policy, which is a matter within the Reserved List, the Parliament has the authority and, is competent to legislate.
On a consideration of the totality of the aforementioned, it is apparent that no provision of the Bill is inconsistent with any provisions of the Constitution. For the reasons aforementioned we make a determination that in terms of Article 23 (1) of the Constitution that neither the Bill nor any provision thereof is inconsistent with the Constitution.
Nihal challenges Bill
Public interest activist, Nihal Sri Ameresekere in supporting his Fundamental Rights Petition made a brief submission to the Supreme Court when the matter came up on November 25 before the Supreme Court Bench presided by Justices N.G. Amaratunga, Suresh handra and Sathya Hettige.
The essence of Ameresekere’s submission was that the determination by the Supreme Court on an Urgent Bill, submitted in terms of Article 122 of the Constitution is governed by Article 123(3) of the Constitution. This stipulates that in the case of a Bill endorsed as an Urgent Bill as provided in Article 122, then if the Supreme Court entertains a doubt, whether the Bill or any provision thereof is inconsistent with the Constitution, Article 123(3) of the Constitution says that it shall be deemed to have been determined that the Bill or such provision of the Bill is inconsistent with the Constitution.
The petitioner’s argument was that this was an inbuilt check and balance enshrined in the Constitution in the case of Bills, stamped as Urgent Bills, in that, such Bills must be above the threshold of any doubt being entertained thereon by the Supreme Court. The entertainment of any doubt by the Supreme Court renders the Bill to be deemed to be inconsistent as seen in Article 123(3) of the Constitution, according to Mr Ameresekere’s submission.
He drew a distinction that this was different from the instance, where the Supreme Court is called upon to make a Determination on a normal Bill, which is not an Urgent Bill, when challenged by a citizen under Article 121 of the Constitution, where the Supreme Court is called upon to make a Determination. In contrast to such a situation, Mr Ameresekere argued that Article 123(3) places a threshold for an Urgent Bill to be deemed to be inconsistent with the Constitution, if the Supreme Court entertains any doubt, and that the Supreme Court Determination on the ‘Expropriation Bill’, which was an Urgent Bill, discloses that several issues and questions had been entertained by the Supreme Court, with answers given on submissions made by the Deputy Solicitor General.
The petitioner submitted to Court that in the foregoing circumstances in his view, the Supreme Court Determination on the ‘Expropriation Bill’ was per-incuriam, by issues and questions having been entertained, as revealed by the Determination. He contended that that the public had not been heard, and that only the Deputy Solicitor General had made submissions in the Supreme Court at the hearing, in view of the circumstances of an Urgent Bill.
Mr Ameresekere’s submission was that Article 80 (3) precludes the Supreme Court inquiring into or pronouncing upon or calling into question the validity of an Act, once the Speaker certifies a Bill, upon which it becomes Law; but that Article 80(3) does not preclude the Supreme Court from correcting a per-incuriam Determination, on a review in terms of Article 132 of the Constitution, on a matter involving in the Opinion of the Chief Justice, as one of general and public importance. Mr Ameresekere’s stance was that this was a matter of general and public importance, as echoed by public concerns, which have arisen on this controversial ‘Expropriation Bill’.
The Court issued notice on the respondents, including the Minister of Finance, Minister of Economic Development, Secretary to the Treasury, Minister of External Affairs, former Attorney Generals C.R. de Silva and Mohan Peiris, Minister of Justice, Secretry - Ministry of Justice, Speaker of Parliament and the Attorney General. On an application made, he was permitted to file an Amended Petition by December 16, to be noticed on the Respondents through the Registrar of the Supreme Court, and to support his application in January.
http://www.sundaytimes.lk/111211/BusinessTimes/bt32.html
