Mr. Speaker [The Hon. (Dr.) Jagath Wickramaratne]

¶ 01 The Parliament met at 9.30 a.m., MR. SPEAKER [THE HON. (DR.) JAGATH WICKRAMARATNE] in the Chair.

¶ 02 ANNOUNCEMENTS

¶ 03 SPEAKER'S CERTIFICATE

¶ 04 In terms of Article 79 of the Constitution of the Democratic Socialist Republic of Sri Lanka, I wish to inform Parliament that I have endorsed my Certificate on the Bill titled “Exchange Control (Amendment)” on 15th August 2025, and on the Bill titled “Sri Lanka Electricity (Amendment)” on 18th August 2025.

¶ 05 MEDIATION (CIVIL AND COMMERCIAL DISPUTES) BILL: DETERMINATION OF THE SUPREME COURT

¶ 06 I wish to inform Parliament that I have received the Determination of the Supreme Court in respect of the Bill titled “Mediation (Civil and Commercial Disputes)”, which had been challenged in the Supreme Court in terms of Article 121(1) of the Constitution.

¶ 07 The Supreme Court has determined that the Bill is not inconsistent with any provision of the Constitution and may be passed by Parliament by a simple majority of Members present and voting.

¶ 08 I order that the Determination of the Supreme Court be printed in the Official Report of today's Proceedings.

¶ 09 Determination of the Supreme Court:

¶ 10 SC SD 22 of 2025

¶ 11 Before: - Achala Wengappuli, Judge of the Supreme Court - Sampath B. Abayakoon, Judge of the Supreme Court - M. Sampath K.B. Wijeratne, Judge of the Supreme Court

¶ 12 Petitioners: 1. Rajeev Amarasuriya, President - Bar Association of Sri Lanka 2. Chatura Galhena, Secretary - Bar Association of Sri Lanka

¶ 13 Counsel: Senany Dayaratne with Harith de Mel, Nishadi Wickremasinghe, Hasini Rupasinghe, Jayani Abeywickrema and Maheshika Bandara instructed by G. G. Arulpragasam for the Petitioners.

¶ 14 Respondents: 1. Hon. Dr. Jagath Wickramaratne, MP 2. Hon. Attorney General

¶ 15 Counsel: Nirmalan Wigneswaran, DSG, with Dr. Avanthi Perera, DSG, Sureka Ahamed, SSC and Indumini Randeni, SC, instructed by Rizni Firdous for the Respondents.

¶ 16 A Bill, in its Short Title referred to as “Mediation (Civil and Commercial Disputes) Act, No. of 2025”, was published in the Gazette of the Democratic Socialist Republic of Sri Lanka on 03 July 2025 and placed on the Order Paper of Parliament on 11 July 2025.

¶ 17 The Petition of the abovenamed Petitioners was filed on 25 July 2025, invoking the jurisdiction of this Court, conferred in terms of Article 121(1) of the Constitution, to determine whether the Clauses of the Bill are inconsistent with Articles 10, 11, 12(1), 12(2), 14(1)(g), 14(1)(h), 14(1)(i) and 14A(1) read together with Articles 3, 4(a), 4(b) and 4(c) of the Constitution of Sri Lanka. The Petitioners averred that the Bill, in its totality, is inconsistent with the Constitution while particularly the Clauses 2(1), 2(2), 3, 5, 6, 7, 9(2), 11, 13(1), 13(2), 14, 19(2), 22(1), 24(1), 25, 26, 27, 28, and 29 are inconsistent with several Articles of the Constitution.

¶ 18 The Petitioners filed within fourteen days of the Bill being placed on the Order Paper, as required by Article 121(1). Upon receipt of the Petition, the Court issued notice on the Attorney General, as required under Article 134(1).

¶ 19 The Petition was referred to this bench by His Lordship the Chief Justice on 28 July 2025 and listed for hearing on 30 July 2025. The Court assembled for hearing at 10.00 a.m. on 30 July 2025.

¶ 20 The Court outlines its constitutional jurisdiction under Articles 118(a) and 120 to determine inconsistencies of Bills and, where relevant, to indicate whether special majority and/or referendum requirements apply under Articles 82, 83 and 84.

¶ 21 The Petitioners’ contentions were organized under these headings: 1. Mediation Service Providers 2. Right to representation and right to be represented and control of proceedings by Mediation Service Providers 3. Ouster of jurisdiction of the Court 4. Enforcement of a mediated settlement 5. Application of the Act to “Civil and Commercial Disputes” 6. Provisions in the Bill regarding the “High Court” 7. Constitutionality of provisions relating to guarantees of confidentiality 8. Unconstitutionality of compelling parties to mediate 9. Costs upon unreasonable refusal to mediate

¶ 22 (1) Mediation Service Providers

¶ 23 Petitioners argued that “Mediation Service Providers” (defined in Clause 29) are unregulated/unregistered bodies vested with substantial powers without commensurate obligations, offending Articles 10, 12(1), 12(2), and 14(1)(g); that their decisions are not reviewable; and that they exercise judicial power.

¶ 24 The Court reviewed Clauses 2, 4(2), 7(1)-(6), 8(1), 8(3), 9(2), 14(1)-(2), 16(4), 18(2), 22, 23, 24, 25, and 29. It held that Mediation Service Providers primarily provide administrative support (procedural rules, code of ethics, facilitator appointment where parties have agreed on a provider but not a mediator) and are subject to party autonomy. Their role is facilitative, not adjudicative; they are not State authorities and do not exercise judicial power. The Court cited its earlier determination on the Mediation (Special Categories of Disputes) Bill (Decisions of the Supreme Court on Parliamentary Bills 1991-2003, Vol. VII, p.379) that mediation is not an exercise of judicial power under Article 4(c). Clauses 5 and 19(2) do not preclude access to courts beyond what the Bill reasonably provides (see below). Reliance on dicta concerning “authorities of the State” (e.g., Joseph Perera; SLT Amendment; Port City) was inapposite since Mediation Service Providers are not State instruments.

¶ 25 Determination: Clauses 7(1), 7(2), 8(1), 8(3), 9(2), 14(1) and 22 are not inconsistent with Articles 10, 12(1), 12(2) and 14(1)(g).

¶ 26 (2) Right to representation and control of proceedings

¶ 27 Petitioners contended the Bill usurps the right to representation, violating Articles 4, 10, 12(1), 12(2), and 14(1)(g). The Court emphasized mediation’s nature as a party-driven, informal process aligned with the Singapore Convention definition. Personal participation preserves freedom of expression; Section 15 of the Mediation Boards Act already excludes attorney representation before Boards, with limited exceptions. While remote participation challenges may arise, technology can mitigate them.

¶ 28 Clause 4 allows parties to agree on conduct rules, provider, and timelines. Mediators’ professional ethics and skills address power imbalances (citing Dunnett v Railtrack).

¶ 29 The Court distinguished rights of representation before courts/tribunals from mediation. Clause 13(2) allows a party to be accompanied by a person who can assist, including an Attorney-at-Law, subject to mediator’s management of the process. Section 41 of the Judicature Act confers representation rights before courts and institutions established for administration of justice, and before quasi-judicial bodies unless otherwise provided by law. Clause 13(2) “otherwise provides” for mediation. No constitutional provision guarantees attorneys a fundamental right to represent persons before all fora.

¶ 30 The role assigned to Mediation Service Providers in Clauses 7, 8, 9, 14-15 confines them to neutral facilitation; no arbitrariness was found.

¶ 31 Determination: No inconsistency with Articles 4, 10, 12(1), 12(2), and 14(1)(g).

¶ 32 (3) Ouster of jurisdiction of the Court

¶ 33 Petitioners argued Clause 5(1) ousts court jurisdiction. The Court held ouster clauses are strictly construed and can coexist with judicial review of legality/natural justice. Clause 5(1) bars institution/entertainment of proceedings unless a certificate of non-settlement is produced where parties agreed to mediate or mediation has commenced; Clause 5(2) preserves access for provisional remedies under Part V of the Civil Procedure Code or other law. Mediation is voluntary and parties may terminate under Clause 17(b) (mediator determines futility; a party withdraws in writing; all parties terminate).

¶ 34 Determination: Clause 5 is not inconsistent with Articles 4, 10, 12(1), 12(2), or 14(1)(g).

¶ 35 (4) Enforcement of mediated settlement (Clauses 19–27)

¶ 36 Petitioners challenged Clauses 19–27 as violating Articles 4, 10, 12(1), 12(2), 14(1)(g), including ouster by Settlement Agreements; unequal treatment between those with/without Settlement Agreements; lack of locus to set aside; procedures in Clause 24; presumptions in Clause 25; and absence of appeal/review.

¶ 37 The Court noted Clause 19 recognizes Settlement Agreements as binding contracts and limits court jurisdiction where such agreements exist, consistent with analogous regimes (Mediation Boards Acts; Arbitration Act). Safeguards exist: only parties are bound; non-parties unaffected. Clause 20(2)-(3) allow objections to admissibility unless the agreement has been entered as a decree under Clause 22. Clauses 22–27 provide procedures and refusal grounds similar to the Recognition and Enforcement of International Settlement Agreements Resulting from Mediation Act No. 5 of 2024 (Section 9(1)), adapted for domestic context. Clause 24’s petition/affidavit procedure, party notice, timelines, and affidavit evidence aim at expeditious disposal; courts retain power to take viva voce evidence. Mediator/providers are not parties to enforcement to ensure system functionality. Clause 25 presumptions are calibrated to purpose. Once a decree is entered, enforcement follows the Civil Procedure Code.

¶ 38 Speculative concerns about discriminatory administration cannot invalidate a law (3rd Amendment Determination; Welfare Benefits Bill Determination). No inherent inequality arises from recognizing Settlement Agreements under the Act; others may litigate under general law.

¶ 39 Determination: Clauses 19, 20, 21, 22, 23, 24, 25, 26, and 27 are not inconsistent with Articles 4, 10, 12(1), 12(2), and 14(1)(g).

¶ 40 (5) Application of the Act to Civil and Commercial Disputes

¶ 41 Petitioners argued “civil and commercial disputes” is undefined and vague, risking application to writs, custody, winding up, shareholder disputes, etc. The Court held these terms are established in Sri Lankan law (Civil Procedure Code; High Court of the Provinces (Special Provisions) Act No. 10 of 1996 and its Schedules; Mutual Assistance in Civil and Commercial Matters Act No. 39 of 2000; Commercial Mediation Centre of Sri Lanka Act No. 44 of 2000). Clauses 2(2) and 3 exclude matters covered by other statutes and list non-mediable disputes; further safeguards exist in Clause 26(2)(b) allowing the High Court to refuse a decree where subject matter is not capable of settlement by mediation under Sri Lankan law. Mediation is voluntary; mediators cannot compel settlement.

¶ 42 Determination: No inconsistency with Articles 4, 10, 12(1), 12(2), and 14(1)(g).

¶ 43 (6) Provisions in the Bill regarding the High Court

¶ 44 Petitioners contended that references to the “High Court established for the Province by Article 154P … exercising civil jurisdiction under the High Court of the Provinces (Special Provisions) Act, No. 10 of 1996” are defective, that jurisdiction is confined by ministerial Orders/Gazette to specified commercial matters and local connections, and that enforcement being funneled to Provincial Commercial High Courts (currently in Colombo) impairs access to justice and conflicts with the allocation of arbitration jurisdiction.

¶ 45 The learned DSG pointed to an identical definition of “High Court” in Section 16 of the Recognition and Enforcement of International Settlement Agreements Resulting from Mediation Act No. 5 of 2024, and noted Petitioners’ own acceptance of the enforcement forum shows no real ambiguity.

¶ 46 The Court noted the mediation process begins by agreement or referral (by parties or court) and that the enforcement forum designated is consistent with existing statutory practice for commercial matters. The balance of arguments and the remainder of the Determination address consistency with constitutional allocation of judicial power and access to justice; on the material before it, the Court found no constitutional inconsistency arising from the Bill’s references to the High Court.

¶ 47 Overall Determination

¶ 48 For the reasons set out above, the Supreme Court determines that the “Mediation (Civil and Commercial Disputes) Bill” is not inconsistent with any provision of the Constitution and may be passed by Parliament by a simple majority of the Members present and voting.