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Sections of Telecom Bill inconsistent with Constitution- SC

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The Supreme Court has determined that some sections of the Telecommunications Amendment Bill are inconsistent with the Constitution.

The Determination of the Court as to the constitutionality of the Bill, titled “Sri Lanka Telecommunications (Amendment) Bill,” is as follows:

1) Proposed Section 9A (2) [Clause 8] states that the TRC may give the provider or operator who is the subject of such investigation, an opportunity to be heard and produce documents before making a determination and thereafter make an appropriate order. The use of the word “may” might be construed to mean that it is not compulsory for the rules of natural justice to be followed which makes it inconsistent with Article 12 (1) of the Constitution. The inconsistency will cease if the word “may” be replaced with the word “shall”.

2) Clause 9 of the Bill is inconsistent with Article 12 (l) of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84.

The learned ASG submitted that the following amendment will be moved at the Committee Stage:

Page 8, Clause 9: delete line l0 to II and substitute the following:- “frequency spectrum into number of bands based on International Telecommunication Union policies and guidelines or international best practices, in the best interest of the efficient management of the frequency spectrum and specify the service or”;

We are of the view that the inconsistency with Article 72 (7) will cease if Clause 9 is amended as suggested.

3) The learned ASG submitted that a further amendment is proposed to Clause 9 as follows:

Page 8, Clause 9: insert the following immediately after line l7:- “(d) vary the service or services or purpose for which such radio frequency has been assigned, from time to time.”

The proposed amendment is inconsistent with Article 727lL) read with Articles 3 and 4 of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84 and approved by the People at a Referendum by virtue of Article 83.

4) Clause 12 [proposed Section 17(10)] of the Bill is inconsistent with Article 72(t) of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84.

The inconsistency will cease if: (i) the word “facility” in Clause 12, page L3 line 14 is replaced with the word “infrastructure”; (ii) line 17 on page 13 is deleted and substitute the following: “specified by regulations made under this Act.”

5) Clause 13 [proposed Section 17A. (1)] is vague and overly broad and therefore inconsistent with Article L2 (7) of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84. The inconsistency will cease if Section 77A. (1.) in Clause 13 is amended by deleting the words “and on any contravention of the provisions of this Act or any regulation or rule made thereunder”

6) Clause 13 [proposed Section 178] is vague and confer unfettered power on the TRC to revoke a licence and is inconsistent with Article 72 (7) of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84.

The inconsistency will cease if: (a) proposed Section 178 (4) (b) is deleted; and (b) proposed Section 178(6) is amended by deleting the words “on the breach of any terms and conditions of the licence or”; (c) proposed Section 17 (8Xd) is deleted.

7) Clause 18 (5) [proposed sections 22 (3A) and 22 (38)] are vague and is inconsistent with the fundamental rights guaranteed by Article L4 (L)(a), La (1Xg) and 72 (7) and can only be passed with the special majority required under paragraph (2) of Article 84.

The inconsistency will cease if Clause 18(5) is amended as follows: Page 24. Clause I 8 : (l) delete lines I to 22 (both inclusive) and substitute the following:- “(3A) In the overall planning and management of radio frequency spectrum, the Commission shall have power to- (a) direct any person to whom a licence has been issued under subsection (l) to comply with and to implement new technologies for the efficient use of radio frequency spectrum in the public interest; and (b) vary any radio frequency after giving written notice to the relevant person prior to a reasonable period of such variation and giving reasons therefor.

(3B) Any person who is aggrieved by the variation of the radio frequency referred to in paragraph (b) of subsection (3A) may appeal to the Commission within three weeks from the receipt of such notice referred to in that paragraph.

(3C) The Commission shall, after giving such aggrieved person a fair hearing on any objection to such variation communicate its decision to the person who made an appeal to the Commission within three weeks from the date of receipt of such appeal.

(3D) The Commission may consider payment of any compensation to the relevant person whose radio frequency has been varied under paragraph (b) of subsection (3A).”; and (2) insert the following immediately after line 22:- “(6) by the insertion immediately after subsection (4) thereof, of the following new subsection:- “(4A) Any person who is aggrieved by the decision referred to in subsection (3C) of ‘ this section may appeal to the Court of Appeal within one months from the date of communication of the decision of the Commission,

(4B) The Court of Appeal may grant any interim relief to such aggrieved person pending the final determination of the appeal.”

8) Clause 78(7) of the Bill [proposed Section 22(7)) is inconsistent with Articles 12 (1) and 14 (1Xa) of the Constitution. The inconsistency will cease if proposed Section 22 (71 is amended so that the competition-based methodology in assigning radio frequencies is promulgated by regulations made under the SLT Act with Parliamentary oversight.

9) Clause 20 [proposed Section 22ADl is irrational and inconsistent with Article 12(1) and can only be passed with the special majority required under paragraph (2) of Article 84.

10) The learned ASG informed that a Committee Stage Amendment will be moved to amend proposed Section 22AC (2) whereby an offence is created by such Committee Stage Amendment. The Proposed Committee Stage Amendment to Clause 20 introducing Section 22AC (2) is inconsistent with Article 121 (1) read with Articles 3 and 4 of the Constitution for the reasons adumbrated above and earlier under “Committee Stage Amendments” and can only be passed with the special majority required under paragraph (2) of Article 84 and approved by the People at a Referendum by virtue of Article 83.

11) ln view of our determinations set out in 9 and 10 above, proposed Section 22AD becomes redundant.

12) Clause 33 of the Bill [proposed Section 59A] is vague and is inconsistent with Article L2(1) of the Constitution and could be validly passed only with the special majority provided for in Article 8aQ) of the Constitution.

The inconsistency will cease if proposed Section 59A is deleted. 1,1. 12. Page 64 of 65 1″3.

13) Clause 35 of the Bill (proposed Section 68(14)(b)and Section 68(14)(c)] is vague and overbroad and inconsistent with Article 12(1) of the Constitution and can only be passed with the special majority required under paragraph (2) of Article 84.

This inconsistency will cease if Clause 35 is amended by deleting the proposed Section 68(1A)(b) and Section 68(1A)(c).

14) Subject to above, none of the other provisions in the Bill are inconsistent with any provision in the Constitution. Other than the Committee Stage Amendments which are specifically referred to in this Determination, we have not considered the constitutionality of any other Committee Stage Amendment.



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Gnanasara Thero absconding after SC ruling

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Ven. Galagoda Aththe Gnanasara Thero was not at his temple in Rajagiriya when prison officials visited the premises yesterday to take steps following the Supreme Court ruling that nullified the presidential pardon granted to him, police sources said.

Prison officials who visited the temple on Nawala Road, Rajagiriya, were reportedly informed by those present that the Thero’s whereabouts were unknown. The development comes a day after the Supreme Court declared former President Maithripala Sirisena’s 2019 pardon of Gnanasara Thero null and void.

The three-member Supreme Court bench comprising Justices Janak De Silva, Dr. Sobhitha Rajakaruna and Sampath B. Abayakoon held that the pardon was arbitrary, violated the public trust and principles of natural justice, and was made beyond the proper exercise of the President’s constitutional discretion.

The case arose from Gnanasara Thero’s conduct at the Homagama Magistrate’s Court in January 2016 during proceedings relating to the disappearance of journalist and political cartoonist Prageeth Eknaligoda.

The Court of Appeal convicted him on four counts of contempt of court in 2018 and imposed concurrent prison terms amounting to six years. He had served about nine months when Sirisena granted him a presidential pardon on May 23, 2019.

The Supreme Court found that although Article 34 empowers the President to grant pardons, that power is held in trust for the people and is subject to constitutional limitations and judicial review. The Court concluded that Sirisena had effectively acted on the recommendation of the Additional Secretary (Legal) without demonstrating that he had independently considered the relevant material.

Justice De Silva held that the pardon was “arbitrary”, violated public trust and the rules of natural justice, and was ultra vires the President’s powers. The Court consequently found that the decision violated the fundamental right to equality guaranteed by Article 12(1) of the Constitution.

The ruling effectively restores the legal position under the original conviction, leaving Gnanasara Thero without the benefit of the 2019 pardon. The Supreme Court also clarified that a pardon does not erase a conviction or sentence, but merely relieves an offender from serving the sentence to the extent specified in the pardon.

Gnanasara Thero, the General Secretary of the Bodu Bala Sena, had been convicted over his conduct during proceedings concerning the disappearance of Eknaligoda, who went missing in January 2010 and has not been located.

Sandhya Eknaligoda, Prageeth Eknaligoda’s wife, was among those who challenged the presidential pardon before the Supreme Court, alongside the Centre for Policy Alternatives and its Executive Director Dr. Paikiasothy Saravanamuttu.

The detailed account of the judgment indicates that the Court’s ruling primarily nullified the pardon and restored the legal effect of the original sentence, with the implementation of the sentence falling to the relevant authorities.

Police sources said that the Supreme Court, however, did not permanently close the door on executive clemency. It held that a future President could grant Gnanasara Thero another pardon, provided the power is exercised lawfully and after proper consideration of all relevant material.

The Supreme Court has so far overturned three presidential pardons granted to two former Presidents. In January 2024, the Court declared former President Gotabaya Rajapaksa’s pardon of former MP Duminda Silva unlawful and invalid. In June 2024, it invalidated two pardons granted by former President Maithripala Sirisena to Royal Park murder convict Jude Shramantha Anthony Jayamaha — the first in May 2016, which commuted his death sentence to life imprisonment, and the second in October 2019, which released him from prison. Jayamaha, who was convicted of the murder of 19-year-old Yvonne Johnson, remains at large. Most recently, on September 10, 2026, the Supreme Court declared Sirisena’s 2019 pardon of Ven. Galagoda Aththe Gnanasara Thero null and void, ruling that it was arbitrary and inconsistent with the Constitution.

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House to debate 22A, Judicature Bill next week

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Parliament is scheduled to debate the Twenty-Second Amendment to the Constitution Bill and the Judicature (Amendment) Bill on September 24 and 25, subject to the Speaker’s announcement following the delivery of the Supreme Court determination on petitions filed against the Bills.

The programme for the Parliamentary Week from September 22 to 25 was decided at a meeting of the Committee on Parliamentary Business held on Thursday (10) under the chairmanship of Speaker Dr. Jagath Wickramaratne.

On each sitting day, Parliamentary Business under Standing Orders 22(1) to 22(6) will be taken up from 9.30 am to 10 am, followed by Questions for Oral Answers from 10 am to 11 am Questions under Standing Order 27(2) will be taken up from 11 am to 11.30 am.

On Tuesday (22), the Orders published in Extraordinary Gazette No. 2497/37 under the Petroleum Resources Act and the Promotion of Export Agriculture (Amendment) Bill will be debated from 11.30 am to 5 pm.

The Tredso Development Foundation (Incorporation) Bill, a Private Member’s Bill, will then be taken up for Second Reading before being referred to the Legislative Standing Committee.

An Opposition motion at the Adjournment Time will follow.

On Wednesday (23), the Chartered Institute of Media Professionals of Sri Lanka Bill will be debated from 11.30 am to 5 pm, followed by Questions at the Adjournment Time.

The Second Reading debate on the 22nd Amendment Bill and the Judicature (Amendment) Bill is scheduled for 11.30 am to 7 pm on Thursday (24) and Friday (25).

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Wrong house targeted in underworld grenade attack: Two children killed

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Two children aged 11 and 17 were mistakenly killed and their 55-year-old father injured in an early morning hand grenade attack on Sirisangabo Mawatha on Friday. Police investigations later revealed that the attackers targeted the wrong house during an ongoing underworld clash.

Three police teams have been deployed to investigate the attack, which occurred at around 3 am.

According to police, a man who arrived near the house in a three-wheeler knocked on the front door before throwing a grenade into the premises and fleeing.

The victims were identified as 17-year-old Kasun Rashmika and 11-year-old Duminda Gihan. Their 56-year-old father, Nalin Thusantha Perera, was seriously injured and admitted to the Kalubowila Teaching Hospital.

Police said the injured man’s brother was allegedly a close associate of a drug trafficker known as ‘Sando’ and had also been accused of involvement in drug trafficking.

The brother lives in a house adjoining the one targeted in the attack, and police suspect the grenade may have been thrown at the wrong house.

Police are also investigating information that the attack was allegedly carried out at the direction of several overseas-based drug traffickers, identified as Pandithage Shantha Kumara alias ‘Kos Malli’, Samantha Perera alias ‘Chuwa Samantha’, ‘Kudu Avishka’ and ‘I.D.’

Police said the attack was believed to be linked to an ongoing conflict between two underworld factions, which have targeted each other’s associates in shootings and grenade attacks. More than 20 people have reportedly been killed in such attacks.

Security agencies are also investigating alleged links between one faction and overseas-based criminals including Kanjipani Imran, Unakuruwe Shantha, Dubai Gagana and Handaya.

Security agencies have also received information that overseas-based criminals identified as Kanjipani Imran, Unakuruwe Shantha, Dubai Gagana and Handaya are allegedly behind the supply of firearms and drugs to the faction associated with Kos Malli and Chuwa Samantha.

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