Legal Services and Laws of Sri Lanka


SLR-1987 Vol.2-P20

SLR - 1987 Vol.2, Page No - 20

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. 174/86.

JANUARY 19 AND 20, 1987.

Constitutional jurisdiction of Supreme Court-Reference by H. E. the President of urgent BilltotheSupremeCourt-Article
122(1)(b) and (c) and Article, 123 of the Constitution Copy of ReferencedeliveredatthesametimeattheSpeaker's,
official residence when Speaker was out of the island-Validity of determination of Supreme Court.

There was a sufficient compliance with the Constitutional stipulation of Article 122(1)(b) of the Constitution of1978that
when His Excellency ,the President makes a written reference to the Chief Justice requiring the special determination ofthe
Supreme Court as to whether a Bill or any provision thereof is inconsistent with the Constitution, a copy ofsuchreference
should at the same time be delivered to the Speaker when the copy of the Reference was delivered atthesametimeatthe
Speaker'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 Jayatifieke, Miss S. M. Senaratne, Safiya Mathew, N. Siripala de Silva, Mrs. A, B.
Dissanayake, Miss Lalitha Senaratne and Miss Shiranthi de Saram for 1st, 2nd and 3rd petitioners in Application No. 6/86.
Prins Gunasekera with Senaka Weeraratne, K Abeypala and Mrs. M. Abeyawickrema for 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.

February 6, 1987.
SHARVANANDA, C.J.
His Excellency the President, in termsofArticle122(1)(b)oftheConstitutionreferredon7.10.1986,theSpecial
Presidential Commissions of Inquiry (Amendment) Bill for the special determination of the Supreme Court, astowhetherthe
Bill or any provision thereof was inconsistent with the Constitution.

A Bench of the Supreme Court accordingly assembled on 10th October 1986 to examine theprovisionsoftheBillandafter
considering the submissions placed before them by the Deputy Solicitor General and K. M. P.Rajaratne,Attorney-at-Lawand
Morris Rajapakse, Attorney-at-Law, determined that the Bill was not inconsistent with any provisions of the Constitutionand
communicated the determination of the Supreme Court to the President and Speaker on that date itself.

The petitioners in both these applications complain that a copy of the aforesaid ReferencemadebythePresidenttothe
Supreme Court was not at the same time delivered to the Speaker as required by the mandatory provisions ofArticle122(1)
(b) and hence the determination is invalid in law on the ground that there was noproperreferenceArticle.122(1)(b)
provides as follows:
"122(1). In the case of a Bill which isin the view of the Cabinet of Ministers, urgent in the national interest, andbears
an endorsement to that. effect under the hand of the Secretary to. the Cabinet
(a) ..........
(b). the President shall by a written reference addressed to the Chief Justice, requirethespecialdeterminationofthe
Supreme Court as to whether the Bill or any provision thereofis"inconsistentwiththeConstitution.Acopyofsuch
reference shall at the same time be delivered to the Speaker
(c) the Supreme Court shall make its determination within twenty-four hours (or such longer period not exceedingthreedays
as the President may specify) of the assembling of the court, and shall communicate its determination only tothePresident
and the Speaker".
The gravamen of Petitioner's complaint is that the copy of the Reference was in factdeliveredtotheHon.Speakeronly
after the proceedings of the Supreme Court had commenced and concluded.

The petitioners in Application, No. 6/86 allege hat the Supreme Court had acted per incuriam being unaware thatacondition
precedent for the constitution and assembling of a Bench under Article 122 (1) (c) had not beencompliedwith.Theystate
that in consequence of the non-compliance with the said requirement the rights of Members of Parliament inrelationtothe
legislative process of a Bill, which such requirement was intended toprotecthave,beendefeated.Theypray,forthe
constitution of a new Bench of theSupreme Court to make the determination under Article 122 (1) (c),whentheywouldbe
able to urge that he Bill was in conflict with the Constitution.
The petitioners in application No. 174/86 averred in-their petition that the Secretary to theCabinetand/orSecretaryto
the President-

"severally or acting in concert have failed and neglected to follow the procedure laiddowninArticle122(2)andacted
unconstitutionally, illegally, mala fide, in not forwarding a copy of the said Reference to theSpeakerofParliament,as
required by Article 122(2) of the Constitution, which action constitutedaviolationofthefundamentalrightsofthe
petitioners, vouched by Article. 12 and 14 of the Constitution".
They state that the special determination obtained without a copy of the Reference having been delivered totheSpeakeras
required by Article 122 (2) (b) was unconstitutional and of no avail in law.
It would appear from the Hansard of 10.10.86 (P1) that the Deputy Speaker had at about 12.15 p. m. that dayinreplytoa
question from a Member of Parliament said that he had not received a copy of the aforesaid Billasyet.Itwouldfurther
appear from the document filed by the Petitioners that the copy of the Reference which was made to the Supreme Courtbythe
President for the special determination of that court under Article122(1)(b)wasreceivedbytheSecretary-Generalof
Parliament only at 3.55 p.m. on 10th October, 1986

According to the affidavit of H. K. Fernando, clerk attached to the Presidential Secretariat, he had on 7. 10. 86despatched
the letter signed by the President addressed to the Acting Chief Justice with acopytotheHonSpeaker,undersealed,
covers marked "By hand-Urgent" to the Acting Chief Justice and Hon Speaker, respectively that the outer cover oftheletter
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 the despatch clerk witharequestthat
it be despatched immediately. According to the affidavit of Ginihaluge Sarath, cycle orderlyattachedtothePresidential
Secretariat, he had on 7.10.86 handed over the letter addressed to the Hon. Speaker at 3.10 p.m. to anemployeeof"Mumtaz
Mahal", the official residence of the Hon. Speaker, and obtained the signature on the delivery book at the timeofdelivery
this employee was the person who ordinarily received communications from the Presidential Secretariat and to whom he, inthe
past, handed over similar letters. He further stated that there had been earlier over when he had taken letters addressedto
the Hon. Speaker direct to Parliament, but had on some such occasions been re-directed to theSpeaker'sresidencewhenever
the Speaker was not in Parliament. "Thereafter it became the practice adopted by him to take such letters first totheHon.
Speaker's residence and if such letters are not accepted to take the letters to Parliament."

From the above affidavits one has to conclude that a copy of the Reference made by President under Article 122(1)(b)was
in fact delivered at the Speaker's official residence 06 7.10.86 at the same time the President madetheReferencetothe
Acting Chief Justice and that 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 on 7.10.1986 outofthecountryonStatebusiness,the
question arises whether the requirement mandated by Article 122(1)(b) of theConstitutionthatacopyoftheReference
"shall at the same time be delivered to the Speaker" was complied with, when such a copy addressed to theHon.Speakerwas
in fact delivered- at the official residence of the Speaker, on 7.10.86:
According to the Hansard of the 23. 10. 1986, Hon. the Speaker had at the outset of the proceedingsofthatdaymadethe
following pronouncement:

"Since the matter as to when the copy of this Bill was delivered to the Speaker has been raisedintheHouse,Iwishto
inform the House that the copy of the Bill concerned had been received at my official residence on7thOctober,1986,and
had been sent to my office in Parliament on 10.10.1986, after the matter was raised in the House"
To a point of order raised by the 1st petitioner in Application No. 6/86as Member of Parliament-"it is a known fact thatyou
were not here in this country. Therefore to send a copy to your House is utterly irrelevant, because when you are awaythere
is a Deputy Speaker who acts in your place, with all the powers that you exercise".TheHon.Speakermadethefollowing
ruling
"In regard to the point of order I rule that in this particularinstanceIamsatisfiedthatallthenecessarylegal
requirements have been- adheredto for the considerationof,thisBill("SpecialPresidentialCommissionsofInquiry
(Amendment) Bill").

The Parliament has accepted the above ruling of the Speaker. The Speaker is the best person to testify as to whetheracopy
of the Reference made in connection with the Bill had at the same time been delivered to him as requiredby,thetermsof
Article 122 (1) (b) of the Constitution. Implicit in his ruling is the determination that the requirementoflawhadbeen
satisfied. In view of this ruling there is no basis for the contention of the petitioners that therewasabreachofthe
mandatory provisions of Article 122(1) (b).
The petitioners in Application No. 174/86 urged that the provisions of the, Billinfringethefundamentalrightsofthe
petitioners. This contention involves the re-agitation of thequestion"whethertheBilloranyprovisionthereofis
inconsistent with the Constitution". By its determination, dated 10. 10.86, thiscourthadheldthattheBillwasnot
inconsistent with any provisions of the Constitution. We cannot sit in appeal over that determination. That determinationis
final and its correctness cannot be questioned.
On the 29th October, 1986, the Speaker in terms of Article 79 of the Constitution certified "ThisBill-SpecialPresidential
Commissions of Inquiry (Amendment) Bill, has been duly passed by Parliament." The Bill has thus passed into law ,asActNo.
38 of 1986-Special Presidential Commissions of Inquiry (Amendment) Act.
Article 80(1) of the Constitution provides

"Subject to the provisions of paragraph (2) of thisArticle,aBillpassedbyParliamentshallbecomelawwhenthe
certificate of the Speaker is endorsed thereon."
Article 80(3) of the Constitution provides
"Where a Bill becomes law upon the certificate of the. President ortheSpeaker,as,thecasemaybe,beingendorsed
thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of suchAct
on any ground, whatsoever."
Counsel for the petitioners in Application No. 174/86 doubted the apparent dimensionofArticle80(3)astowhetherit
covered cases where it could be demonstrated that a mandatory step preliminary to a Bill becoming law hadbeenomitted.He
contended that when a condition precedent or on essential step in procedure prescribed by the Constitution hadnotinfact
been complied with, Article 80(3) would not be a bar to a court "inquiringintothevalidityofsuchlaworAct".He
submitted that the conclusiveness secured by Article 80(3) is attracted only when the preliminaryrequirementsmandatedby
the provisions of the Constitution have been complied with. He questioned the validity of an amendment introduced to aBill,
subsequent to a determination of the Supreme Court under Articles 121 and 122 of the Constitution with reference theretoand
which cannot be identified as the amendment referred to in Article123(2)oftheConstitution.Accordingtohimthe
certificate of the Speaker does not impart validity to legislative process which has missed a vital step. Theforceofthe
argument of counsel is apparent. This contentionof counsel raises vitalconstitutionalissueswhichrequireveryfull
consideration in an appropriate case which calls for a determination of the said issues as a necessary step tothedecision
of the case. As in the present case the omission postulated by Counsel as the basis for his legal submission is notpresent.
It is not necessary to make any pronouncement on the correctness of his contention. In a proper case the scope andsweepof
Article 80(3) will have to be gone into.

Counsel for the petitioners also urged that the purpose of the copy of the Reference under Article 122(2) being deliveredto
the Speaker, is for the Members of Parliament to be made aware of the Reference to' enable them to arrangetobeheardby
the Supreme Court in proceedings in court preceding its determination.Ontheotherhand,theDeputySolicitor-General
submitted that the purpose was to alert the Hon. Speaker that "no proceedings shall, behadinParliamentinrelation-to
such Bill until the determination of the Supreme Court had been made, or the expiry of a period of three weeks from thedate
of such Reference" as directed by Article 122 (2) read with Article 121(2) of the Constitution. Again in view of ourholding
that there has been no breach of the provisions of Article 122(1)(b) of the Constitution, itisnotnecessaryforusto
decide this constitutional question.

Both petitions are accordingly dismissed without costs.

WANASUNDERA, J. - I agree.

COLIN-THOME, J. - I agree.

RANASINGHE, J. - I agree.

TAMBIAH, J. - I agree.

Applications refused.


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