003-SLLR-SLLR-1987-2-MOONESINGHE-AND-OTHERS-v.-ATTORNEY-GENERAL.pdf
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Sri Lanka Law Reports
[1987] 2 Sri LR
MOONESINGHE AND OTHERS
v.
ATTORNEY-GENERAL
SUPREME COURT.
SHARVANANDA, C.J , WANASUNDERA, J., COLIN-THOME. J . RANASINGHE. J.
AND TAMBIAH. J.
S C. APPLICATION No. 6/86 (Spl.)
S.C. APPLICATION No. 1 74/86.
JANUARY 19 AND 20, 1987.
Constitutional jurisdiction of Supreme Court-Reference byH. E. the President of urgentBill to the Supreme Court-Article I22(1)(b) and (c) and Article 123 of theConstitution-Copy of Reference delivered at the same time at the Speaker's officialresidence when Speaker was out of the island- Validity of determination of SupremeCourt.
There was a sufficient compliance with the Constitutional stipulation of Article122(1) (b) of the Constitution of 1978 that when His Excellency the President makes awritten reference to the Chief Justice requiring the special determination of theSupreme Court as to whether a Bill or any provision thereof is inconsistent with theConstitution, a copy of such reference should at the same time be delivered to theSpeaker, when the copy of the Reference was delivered at the same time at theSpeaker's official residence although the Speaker was out of the island at the time.
APPLICATIONS for re-hearing on Constitutionality of Bill.
Nimal Senanayake. P. C. with Sanath Jayatilleke, Miss S. M. Senaratne, Saliya Mathew,N. Siripala de Silva, Mrs. A. B. Dissanayake, Miss Lalitha Senaratne and Miss Shiranthide Saram for 1 st, 2nd and 3rd petitioners in Application No. 6/86.
Prins Gunasekera with Senaka Weeraratne, K. Abeypala and Mrs. M. Abeyawickremafor the petitioners in Application No. 174/86.
M. S. Aziz, D.S.G. with Ananda Kasturiarachchi, S.C. instructed by V P Tillekeratne,State Attorney for respondents in Application No. 6/86 and instructed by U. R.Wijetunga, State Attorney for the respondents in Application No. 174/86
Cur. adv. vult.
February 6, 1987.
SHARVANANDA, C.J.
His Excellency the President, in terms of Article 122(1)(b) of theConstitution referred on 7.10.1986, the Special PresidentialCommissions of Inquiry (Amendment) Bill for the special determinationof the Supreme Court, as to whether the Bill or any provision thereofwas inconsistent with the Constitution.
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A Bench of the Supreme Court accordingly assembled on 10thOctober 1 986 to examine the provisions of the Bill and afterconsidering the submissions placed before them by the DeputySolicitor General and K. M. P. Rajaratne, Attorney-at-Law and MorrisRajapakse, Attorney-at-Law, determined that the Bill was notinconsistent with any provisions of the Constitution andcommunicated the determination of the Supreme Court to thePresident and Speaker on that date itself.
The petitioners in both these applications complain that a copy ofthe aforesaid Reference made by the President to the Supreme Courtwas not at the same time delivered to the Speaker as required by themandatory provisions of Article 1 22(1) (t>) and hence thedetermination is invalid in law on the ground that there was no properreference. Article 122(1)(£>) provides as follows:
"122(1). In the case of a Bill which is, in the view of the Cabinet of
Ministers, urgent in the national interest, and bears an endorsement
to that effect under the hand of the Secretary to the Cabinet-
fa) …the President shall by a written reference addressed to the ChiefJustice, require the special determination of the Supreme Courtas to whether the Bill or any provision thereof is inconsistentwith the Constitution. A copy of such reference shall at thesame time be delivered to the Speaker;
the Supreme Court shall make its determination withintwenty-four hours (or such longer period not exceeding threedays as the President may specify) of the assembling of thecourt, and shall communicate its determination only to thePresident and the Speaker;".
The gravamen of Petitioner's complaint is that the copy of theReference was in fact delivered to the Hon. Speaker only after theproceedings of the Supreme Court had commenced and concluded.
The petitioners in Application No. 6/86 allege that the SupremeCourt had acted per incuriam being unaware that a conditionprecedent for the constitution and assembling of a Bench under Article1 22(1)(c) had not been complied with. They state that, inconsequence of the non-compliance with the said requirement therights of Members of Parliament in relation to the legislative process ofa Bill, which such requirement was intended to protect have beendefeated. They pray for the constitution of a new Bench of the
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Supreme Court to make the determination under Article 1 22 (1) (c),when they would be able to urge that the Bill was in conflict with theConstitution.
The petitioners in application No. 174/86 averred in their petitionthat the Secretary to the Cabinet and/or Secretary to the President -"severally or acting in concert have failed and neglected to followthe procedure laid down in Article 122(2) and actedunconstitutionally, illegally, mala fide, in not forwarding a copy of thesaid Reference to the Speaker of Parliament, as required by Article122(2) of the Constitution, which action constituted a violation ofthe fundamental rights of the petitioners, vouched by Article 1 2 and14 of the Constitution".
They state that the special determination obtained without a copy ofthe Reference having been delivered to the Speaker as required byArticle 1 22(2)(b) was unconstitutional and of no avail in law.
It would appear from the Hansard of 10.10.86 (P1) that the DeputySpeaker had at about 12.15 p.m. that day in reply to a question froma Member of Parliament said that he had not received a copy of theaforesaid Bill as yet. It would further appear from the document filedby the Petitioners that the copy of the Reference which was made tothe Supreme Court by the President for the special determination ofthat court under Article 122(1)(b) was received by theSecretary-General of Parliament only at 3.55 p.m. on 10th October,1986.
According to the affidavit of H. K. Fernando, clerk attached to thePresidential Secretariat, he had on 7.10.86 despatched the lettersigned by the President addressed to the Acting Chief Justice with acopy to the Hon. Speaker, under sealed covers, marked "Byhand-Urgent" to the Acting Chief Justice and Hon. Speaker,respectively; that the outer cover of the letter addressed to the Hon.Acting Chief Justice was addressed to the Registrar, Supreme Court,while the copy of the Hon. Speaker was addressed to "Hon.Speaker-Parliament"; that the two packets were handed over to thedespatch clerk with a request that it be despatched immediately.According to the affidavit of Ginihaluge Sarath, cycle orderly attachedto the Presidential Secretariat, he had on 7.10.86 handed over theletter addressed to the Hon. Speaker at 3.10 p.m. to an employee of"Mumtaz Mahal", the official residence of the Hon. Speaker, andobtained the signature on the delivery book at the time of delivery; thisemployee was the person who ordinarily received communications
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from the Presidential Secretariat and to whom he. in the past, handedover similar letters. He further stated that there had been earlieroccasions when he had taken letters addressed to the Hon. Speakerdirect to Parliament, but had on some such occasions beenre-directed to the Speaker's residence, whenever the Speaker was notin Parliament. "Thereafter it became the practice adopted by him to takesuch letters first to the Hon. Speaker’s residence and if such lettersare not accepted to take the letters to Parliament."
From the above affidavits one has to conclude that a copy of theReference made by President under Article 122(1)(i>) was in factdelivered at the Speaker's official residence on 7.10.86 at the sametime the President made the Reference to the Acting Chief Justice andthat the said copy was re-delivered in Parliament on 10th October,
1986 at 3.55 p.m.
In the context of the undisputed fact that the Hon. Speaker was on7.10.1986 out of the country on State business, the question ariseswhether the requirement mandated by Article 122(1)(b) of theConstitution that a copy of the Reference "shall at the same time bedelivered to the Speaker" was complied with, when such a copyaddressed to the Hon. Speaker was in fact delivered at the officialresidence of the Speaker on 7.10.86.
According to the Hansard of the 23.10.1986, Hon. the Speakerhad at the outset of the proceedings of that day made the followingpronouncement:
"Since the matter as to when the copy of this Bill was delivered tothe Speaker has been raised in the House, I wish to inform theHouse that the copy of the Bill concerned had been received at myofficial residence on 7th October, 1986 and had been sent to myoffice in Parliament on 10.10.1986, after the matter was raised inthe House".
To a point of order raised by the 1st petitioner in ApplicationNo.6/86as Memberof Parliament-"it isa known fact that you were nothere in this country. Therefore to send a copy to your House is utterlyirrelevant, because when you are away there is a Deputy Speaker whoacts in your place, with all the powers that you exercise". The Hon.Speaker made the following ruling –
"In regard to the point of order, I rule that in this particularinstance I am satisfied that all the necessary legal requirements havebeen adhered to for the consideration of this Bill ("SpecialPresidential Commissions of Inquiry (Amendment) Bill")."
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The Parliament has accepted the above ruling of the Speaker. TheSpeaker is the best person to testify as to whether a copy of theReference made in connection with the Bill had at the same time beendelivered to him as required by the terms of Article 122(1 )(£>) of theConstitution. Implicit in his ruling is the determination that therequirement of law had been satisfied. In view of this ruling there is nobasis for the contention of the petitioners that there was a breach ofthe mandatory provisions of Article 122(1 )(b).
The petitioners in Application No. 1 74/86 urged that the provisionsof the Bill infringe the fundamental rights of the petitioners. Thiscontention involves the re-agitation of the question "whether the Bill orany provision thereof is inconsistent with the Constitution". By itsdetermination, dated 10.10.86, this court had held that the Bill wasnot inconsistent with any provisions of the Constitution. We cannot sitin appeal over that determination. That determination is final and itscorrectness cannot be questioned.
On the 29th October, 1986, the Speaker in terms of Article 79 ofthe Constitution certified "This Bill-Special Presidential Commissionsof Inquiry (Amendment) Bill, has been duly passed by Parliament." TheBill has thus passed into law as Act No. 38 of 1986-SpecialPresidential Commissions of Inquiry (Amendment) Act.
Article 80(1) of the Constitution provides-
"Subject to the provisions of paragraph (2) of this Article, a Billpassed by Parliament shall become law when the certificate of theSpeaker is endorsed thereon."
Article 80(3) of the Constitution provides –
"Where a Bill becomes law upon the certificate of the President orthe Speaker, as the case may be, being endorsed thereon, no courtor tribunal shall inquire into, pronounce upon or in any manner call inquestion, the validity of such Act on any ground whatsoever."
Counsel for the petitioners in Application No. 174/86 doubted theapparent dimension of Article 80(3) as to whether it covered caseswhere it could be demonstrated that a mandatory step preliminary to aBill becoming law had been omitted. He contended that when acondition precedent or on essential step in procedure prescribed bythe Constitution had not in fact been complied with. Article 80(3)would not be a bar to a court "inquiring into the validity of such law or
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Act". He submitted that the conclusiveness secured by Article 80(3)is attracted only when the preliminary requirements mandated by theprovisions of the Constitution have been complied with. He questionedthe validity of an amendment introduced to a Bill, subsequent to adetermination of the Supreme Court under Articles 121 and 122 ofthe Constitution with reference thereto and which cannot be identifiedas the amendment referred to in Article 123(2) of the Constitution.According to him the certificate of the Speaker does not impart validityto legislative process which has missed a vital step. The force of theargument of counsel is apparent. This contention of counsel raisesvital constitutional issues which require very full consideration in anappropriate case which calls for a determination of the said issues as anecessary step to the decision of the case. As in the present case theomission postulated by Counsel as the basis for his legal submission isnot present. It is not necessary to make any pronouncement on thecorrectness of his contention. In a proper case the scope and sweepof Article 80(3) will have to be gone into.
Counsel for the petitioners also urged that the purpose of the copyof the Reference under Article 122(2) being delivered to the Speaker,is for the Members of Parliament to be made aware of the Referenceto enable them to arrange to be heard by the Supreme Court inproceedings in court preceding its determination. On the other hand,the Deputy Solicitor-General submitted that the purpose was to alertthe Hon. Speaker that "no proceedings shall be had in Parliament inrelation to such Bill until the determination of the Supreme Court hadbeen made, or the expiry of a period of three weeks from the date ofsuch Reference" as directed by Article 122(2) read with Article121 (2) of the Constitution. Again in view of our holding that there hasbeen no breach of the provisions of Article 122(1)(b) of theConstitution, it is not necessary for us to decide this constitutionalquestion.
Both petitions are accordingly dismissed without costs.WANASUNDERA, J.-l agree.
COLIN-THOM£, J.-l agree.
RANASINGHE, J.-l agree.
TAMBIAH, J.-l agree.
Applications refused.