Sri Lanka: Legality of the gazetted amendments to the Prevention of Terrorism Act challenged .

Image: Attorney at Law Prabhodha Rathnayake (left) has filed the petition on behalf Attorney at Law Senaka Perera (right).

Attorney at Law and Chairperson of the Committee to Protect Prisoners’ Rights Senaka Perera has filed a Fundamental Rights petition at the Supreme Court of Sri Lanka against the  recently gazetted Amendment to the Prevention of Terrorism (Temporary Provision) act No 48 of 1979.

The petition argues that the Proposed Bill and/or following provisions of the Proposed bill are inconsistent with the Constitution and the Constitutional principles and special majority of the parliament together with the approval of the public at a referendum in order to pass the Bill.

Attorney-at-Law Prabhodha Rathnayake has the petition on behalf of Senaka Perera.

The petition follows:

 On this 1st day of February 2022,

The Petition of the Petitioner above-named appearing by Prabhodha Rathnayake his registered Attorney-at-Law, states as follows:

1. The Petitioner is a citizen of the Democratic Socialist Republic of Sri Lanka.

2. The Petitioner states that the Honorable Attorney-General is made a Respondent to this application under and in terms of Article 134(1) of the constitution.

3. The Petitioner is practicing as an Attorneys-at-Law in Colombo Magistrate Courts and various other courts in Sri Lanka a member of the Bar Association of Sri Lanka.

4. The Petitioner states that the Bill titled “Bill to amend the Prevention of Terrorism (Temporary Provisions ) Act No 48 of 1979” was published as a supplement to part II of the Gazette of 21^st of January 2022./ The said gazette was only issued on 27^th of January 2022 and placed on the Order Paper of the Parliament on 27^th January 2022 (hereinafter at times referred to as the “Proposed Amendment “).

(True copies of the English, Sinhala and Tamil versions of the said Proposed Amendment “to Amend the Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979 ” are annexed hereto marked “P-1”, “P-2” and “P- 3” pleaded as part and parcel hereof.)

5. The Petitioners state that, as described in the long title, a “Bill to amend the Prevention of Terrorism ( Temporary Provisions ) Act No 48 of 1979” is to amend the said act and Petitioner seeking an order from your Lordships court stating the necessity of a special majority of the parliament together with the approval of the public at a referendum in order to pass the Bill.

6. The Petitioner states that he is entitled to invoke the Jurisdiction of Your Lordships’ Court in terms of Article 121 in as much as the Bill has now been tabled in Parliament.

7. The Petitioner states that the Proposed Bill and/or following provisions of the Proposed bill are inconsistent with the Constitution and the Constitutional principles for the following reason: according to Clause 10 of the of the Proposed Bill, introduced Section 15B to the existing Act for Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979 which states the powers of the Court of Appeal on granting bail, but the continuing paragraph to this have disregarded the said bail conditions and states that it shall not preclude the High Court from making an order to remand even after bail is granted by the Court of Appeal where the power of the Court of Appeal is being undermined and it seriously distract the Judicial hierarchy and the powers of the Court of Appeal.

8. The Petitioner states that the proposed Bill to amend the Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979, therefore is inconsistent with Article 12(1) of the Constitution which ensures equal treatment before the law.

9. The Petitioner states that the proposed Bill to amend the Prevention of Terrorism (Temporary Provisions) act No 48 of 1979 Distracted the Judicial System and therefore is inconsistent with Articles 3 and 4 of the law.

10. The Petitioner states that the cumulative effect of the aforesaid Proposed Bill to amend the Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979 is inconsistent with the Article 105 of the Constitution and the Democratic Principals.  

11. The Petitioner states that in the aforesaid circumstances the entire Bill (amend the Prevention of Terrorism (Temporary Provisions) act No 48 of 1979) and/or one or more of the Sections thereof will not become law unless passed by two-thirds of the whole number of the members in Parliament and approved by the people at a refendum.

WHEREFORE, THE PETITIONER RESPECTFULLY PRAYS THAT YOUR LORDSHIPS’ COURT BE PLEASED TO:

• Hear the Petitioner;
• Determine that clause 10 of the Bill titled “to amend the Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979 and of the proposed Amendment as whole are thus and otherwise contrary to and/ or inconsistence with the Provisions of Articles 3 and 4 of the Constitution.
• Determine that one or more of the said provisions of the said Bill titled “to amend the Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979” or the bill as a whole is/are inconsistent with the provisions of the Constitution and required to be passed by not less than two-thirds of whole number of members in Parliament and approved by the people at a Referendum by virtue of the provisions of Article 83;
• Grant such further and other relief(s) as to your Lordships Court shall seem meet.

Attorney-at-Law for the Petitioner