Former CJ Sarath N Silva cannot challenge a Bill passed in Parliament - Dr.Jayampathy Wickramaratne | Sunday Observer

Former CJ Sarath N Silva cannot challenge a Bill passed in Parliament - Dr.Jayampathy Wickramaratne

8 October, 2017

Constitutional Law expert and a leading figure in the Constitution making process, Dr.Jayampathy Wickramaratne said, the Provincial Councils Election Amendment Bill which was passed in Parliament recently, cannot be challenged in a court of law because, once a piece of legislation is passed in Parliament in a due process it is considered to have been written into law, under Sri Lanka’s present Constitution.

In a brief interview with the Sunday Observer before he departed to deliver a lecture in London, Dr. Wickremaratna said, the public has been demanding an overhaul of the present electoral system for a long time.

“It was their call to abolish the preferential system, they did not yearn for just Parliamentary electoral reforms but wanted both, local authorities and provincial level reforms as well,“ he said.

The mandate was to elect MPs and local council and provincial council members on an electorate basis, while retaining Proportional Representation. He said, Sri Lanka is lagging behind, compared to other countries, on women’s representation at all levels of governance.

“People have been clamouring for a change. With the idea of changing the present system in mind, the 20th Amendment Bill was presented in Parliament. This was hurried because the elections in three Provincial Councils were also due in September.”

The Government brought a Bill before Parliament to hold all elections together. This was mooted since the politicians, when the elections are held on a staggered basis, have the advantage of exploiting state resources.

But, when the new Elections Law Bill was referred to the Supreme Court, the SC determined, that while the Government can advance elections, it cannot postpone elections among others. This meant if the Provincial Council elections to the three Councils of which the terms were expired in September - the Eastern, North Central and Sabaragamuwa - were held immediately, the old system would apply to those three councils and the new system would apply to the others.

These three Councils would have to wait another five years, while the other provinces would have had elections on a new system. He said, then, the Government was confronted with the question, how to settle this matter.

“Fortunately for the government there was a Bill relating to the Provincial Council Elections Act already in Parliament,” he said. That Bill sought to increase female representation in Parliament.

“The government made use of that Bill. The Bill before Parliament was already dealing with provincial council elections,” he said, adding that this practice was not without precedence. In the same manner amendments were brought to the new elections law on local authorities, passed in Parliament a few weeks ago. Here too, the amendments were introduced at the committee stage and a new electoral system introduced for the local authorities through committee stage amendments.

“This had been the demand of the people at large,” he said.

“Former Chief Justice, Sarath N. Silva says, he acted in the public interest to file a Fundamental Rights petition before the Supreme Court. He had been the Attorney General and later Chief Justice, but was not considered an apolitical figure by the people at large. He helped to overthrow the previous regime. But now, he has joined with the personalities of the same regime that he helped to overthrow, for reasons best known to him. He is now doing his best to bring back the regime that was rejected by the people.”

Former Chief Justice Sarath N. Silva filed a Fundamental Rights petition in the Supreme Court late September seeking an Interim Order staying the amendments made to the Provincial Council Election Bill at the committee stage of Parliament on September 20, until the final determination of this petition.

The petitioner cited Speaker Karu Jayasuriya, Attorney General Jayantha Jayasuriya and Chairman and members of the Election Commission as respondents.

Dr.Wickremaratne said, it was clear he is not doing this in the public interest, but in his own interest and the interest of the people who were rejected by the masses at large.

In Sri Lanka, whether we like it or not, after a Bill is passed and certified in due process in Parliament, it cannot be challenged in the courts. That constitutional provision has been consistently upheld by the courts, including by Sarath N.Silva when he was Chief Justice.

With regard to the concerns expressed by Caffe and Transparency International of Sri Lanka, I say, you can have different views on the manner in which it was passed, but now that the Bill is passed, it cannot be challenged. It has already been written into law.