NCPC dissolution related order on June 6

The application filed by North Central Province UNP Councillor Anil Rathnayake seeking a writ of prohibition against Chief Minister Berty Premalal Dissanayake and Governor Karunaratne Divulgane from dissolving the Provincial Council was taken up before Civil Appellate High Court judge Nissanka Bandula Karunaratne at the Provincial High Court of Anuradhapura.

Attorneys-at-Law Faizer Musthapha with Namal Rajapaksa appeared for the first respondent Chief Minister Berty Premalal Dissanayake, Attorney-at-Law Isuru Balapatabendi, appeared for respondent ministers of NCP.

Senior State Counsel Sumathi Dharmawardena with State Counsels Sajaya Kodituwakku and Ishan Rathnapala, appeared for Governor Divulgane.

Attorney-at-Law Karunaratne Herath appeared for the petitioner, Provincial Councillor Rathnayake. Musthapha raised a preliminary objection that the Civil Appellate High Court of North Central Province did not have jurisdiction to determine an issue pertaining to the dissolution of a provincial council and its duty is cast upon the Constitution. He said the petitioner had submitted incorrect documents.

Senior State Counsel Sumathi Dharmawardena appearing for the Governor informed court that a Provincial High Court established as a result of the 13th Amendment has authority to grant writs in the nature of prohibitions, but is subject to limitations such as matters referred to in the Provincial Council list in the 13th Amendment.

Senior State Counsel Dharmawardena informed the High Court judge that the authority vested with the Court of Appeal to grant writs of prohibitions in terms of Article 140 of the Constitution is different to Article 154P of the Constitution which gives authority to grant writs by a Provincial High Court which are of limited nature. He informed that the present application for writ is against the legal principles in the case, Maithripala Senanayake vs Don Gamage Mahindasoma pertaining to the dissolution of a provincial council.

Attorney-at-Law Karunarathne Herath in reply to submissions of respondents' counsels informed court the proposed dissolution of the NCP Council would hamper constitutional rights granted by the 13th Amendment to the councillors and special regard was placed on the Provincial Council list of the13th Amendment to the Constitution.

He said the 13th Amendment was based on the Constitution of India and as per the reported case law of India, the NCP High Court has jurisdiction to hear and stay the dissolution of the Provincial Council.

At this stage, High Court Judge Nissanka Bandula Karunaratne invited President's Counsel Dr Jayampathy Wickremarathne to assist court in amicus. Dr Wickremarathne, with the consent of the counsels for all parties, informed the High Court the test to be applied in this instance is whether the Provincial Council is permitted in terms of the 13th Amendment to pass a statute to regulate the dissolution process or not.

In reply, Senior State Counsel Sumathi Dharmawardena informed High Court the provincial list of the 13th Amendment did not permit PC to pass a statute to regulate dissolution or Provincial Council election. Its duty is vested with the Governors in terms of the 13th Amendment.

He said considering the above writ application of Provincial Councillor Anil Ratnanayake should be dismissed at once. Chief Minister Berty Premalal Dissanayake, Provincial Ministers and members were present in High Court.

Civil Appellate High Court Judge Nissanka Bandula Karunaratne reserved the order on preliminary objection to June 6, 2012 and extended stay order until the next date.