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Thursday, February 29, 2024

Sri Lanka – unique case where Parliament can pass even bills violating the Constitution

Quintus Perera
Ordinary bills presented in parliament could be worse than urgent bills referred to the Supreme Court because often items that are unconstitutional are smuggled in as amendments, a top lawyer said this week. Speaking during a timely panel discussion on “How urgent are urgent bills?” organized by the Transparency International Sri Lanka (TISL) and held in Colombo this week, M.A. Sumanthiran, also a member of parliament, said ordinary bills could be also dangerous and have only a 7-day window to be challenged.
Citizens must know of that bill once it being gazetted but unless the person is a Member of Parliament he or she would never get a copy of the bill. He said that many laws have been passed but people unfortunately have not been able to challenge them. The worst, Mr Sumanthiran, noted is when amendments are passed at the Committee stage. They are neither gazetted nor contains anything that ordinary citizens have access to. Even new laws can be deviously introduced as the committee stage amendments.

Citing an example, he said a Monetary Law amendment bill was once pending in parliament.
At the same time the Pramuka Bank crashed giving rise to some issues which required important amendments to certain sections of the Banking Act.

Sneaking amendments

However without presenting these amendments (which would have required following a due process clearly laid out in the case of urgent bills and/or ordinary bills), the government sneaked in committee stage amendments to the Monetary law amendment.

Though this was subsequently challenged in the Supreme Court, the Court said that they couldn’t do anything as the Speaker had already signed the bill. He said according to Constitutional provisions, laws are not valid if the legislative process hasn’t been followed. And, there are a few laws like the 18th amendments that come within this segment of ‘invalid’ laws.

Referring to the issue of urgent bills, he said the discussion brings to focus the legislative process and that these urgent bills are not urgent matters. But these discussions could bring to light other important matters associated with that and then it creates big concern over them. Many constitutional amendments have been made with urgent bills. He referred to another urgent bill called the Rajadurai Amendment which was just to enable one member to cross over.

Call for post-enactment review
He, and other panellists, made a serious call for regulations to allow the people to review legislation. “You have a constitution of the country, if the constitution is supreme then all laws must be subordinate to that and any inconsistency must be permitted to be challenged at any stage,” he said.

There were three others on the panel – Prof Milton Rajaratne, Faculty of Management, University of Peradeniya; senior lawyers J.C. Weliamuna and Ms Priyani Wijesekera, former Secretary General to the Parliament. Most panellists agreed that the present constitution has a few flaws and such issues could be sorted out if there was post-enactment review preceded by public debate.

All the contributions were enlightening and forthright on the constitution, parliament and the judiciary on the rights of the people vis-à-vis these institutions. Members of the audience while encouraged by the comments said these valuable presentations and awareness on issues of public importance need to be articulated before a wider, more representative public audience that would reach the four corners of the country – to enable people to learn how democracy is being subverted and the people’s rights violated.

TISL CEO Wijaya Jayatillake in introductory remarks said a recent TI report has analyzed the state of affairs in terms of governance, transparency and accountability and based on the facts, the VAT scandal exposed by the Auditor General himself allegedly cost Rs 441 billion, which is biggest scam in South Asia.

On corruption, he said the actions in the public sector is influenced by the political culture that entrenches the use of informal channels of support and politicians give direct orders to the public servants at local level.

Dwelling upon the topic of urgency of urgent bills, Mr Jayatillake said that when it came to the 18th amendment even the members of parliament did not have the opportunity to examine the changes or amendments to be considered.

Lawyer Mr Weliamuna, who is also a former director of the TISL queried as to how the urgent bills concept has come to being and indicated the need to understand that in Sri Lanka once a law is passed, no one can question the validity of the law thereafter as Sri Lanka does not accept the concept of constitutionalism where the constitution is not treated as supreme.

Laws that are inherently unconstitutional

Whatever the reason this constitution also provides an interesting feature – a law which can inherently be unconstitutional. “There are provisions in the Constitution that if you have a 2/3rds support then you can pass a law which is inconsistent with the constitution, a particular feature very rarely found in other democracies,” he said.

Post-enactment challenge of laws has always been there in countries which recognize constitutionalism. But Sri Lanka moved away from that in 1972 with the borrowed concept which says that the parliament is supreme.

Mr Weliamuna said that interestingly Article 55 of the 1972 Constitution provided for this two way approach to laws. One is the normal bill and the other is the urgent bill. Now it is just cut and paste in the present Constitution with one difference – the 1972 constitution accepted parliament as the supreme body.

He said that this Constitution considered people as supreme and noted that he cannot find in many constitutions which considered people as supreme. Yet though, the Sri Lankan Constitution having accepted the people as supreme does not accept that the people can challenge the laws later and this is a contradiction by itself.

Urgent bills are different from normal bills. He queried, “Now who is saying this as urgent? That point is important –it is the Cabinet. The Constitution says, in the case of a bill which is, in the view of the Cabinet of Ministers, urgent in the national interest. And there is an endorsement to the effect under the hand of the secretary to the Cabinet. Now the cabinet decides that a bill is urgent and there is a seal and a signature. And whether it was really urgent or not is not a matter for the court to examine. In my view, our courts have interpreted differently.”

He said that once the Cabinet decides a bill is urgent, the only follow up is that the Supreme Court has to give its determination, whether it is compatible with the constitution and the decision has to be conveyed within one day to three days. So after that they (may) take three years to pass it. He said that the whole process of urgent bills is a mechanism used to prevent a public debate and prevent the democracy working …nothing else.

Mr Weliamuna questioned as to what is the Cabinet, who is the Cabinet? And in Sri Lanka the Cabinet is headed by the President and he appoints it. “He could remove the members of the cabinet overnight with no explanation and theoretically there can be a one-man or one-woman Cabinet, that is the President of Sri Lanka – it is in our Constitution,” he said.

There are people from the Opposition and there are people from the government in the Cabinet. There was an MP whose property has been acquired under the recent expropriation law. He said that if that MP crosses over to the Cabinet then there would be another urgent bill to change that law.

Convenience of the executive

He said that his understanding is that these urgent bills have been utilized for executive convenience for the convenience of the President whoever it may be, not only this President. He said, “The President (in the future) could probably be worse”.

He said that there were questions raised as to why an earlier draft constitution was referred to the Supreme Court (because there is no such provision to examine a constitution).

However this may have been because it was an urgent bill and there is a compulsory requirement to send all urgent bills to the Supreme Court. When a bill is referred to the Supreme Court there are only a few things to decide – whether it can be passed with 2/3rds majority at a special session or whether that law is to be passed with 2/3rds majority plus a referendum.

If there is a doubt in the minds of the judges on the constitutionality of the bill, then it can be written (in a ruling) that it is inconsistent. Priyani Wijesekera, former Secretary General of Parliament said that in Sri Lanka there are three Constitutions – 1948, 1972 and 1978. In the earlier two constitutions there was no provision for urgent bills.

Urgent bills need public debate
She said that the 1978 Constitution was passed within a matter of five months and at the parliamentary debate, nobody questioned it. The regular bills have to be published in the Government Gazette to give notice to the public to raise objections, before it is presented in parliament while urgent bills don’t go through this process. In the case of urgent bills it is the President who approves it and not the Parliament. She said that many of these urgent bills should be subject to a public debate.

Ms Wijesekera said that nobody knows on what basis the Cabinet decides on the urgency of bills. She said that a bill called the “Consumer Protection Bill” was introduced as an urgent bill and it was challenged but the Supreme Court decided that it was not a matter for the courts.

Urgency of a pensions bill
Citing examples of strange instances when ‘urgent’ bills were passed, she referred to a pensions bill and asked, “What is it that was so urgent in a pensions issue to seek its passage as an urgent bill?”
Very often the procedure is for urgent bills to be passed through parliament on the same day. Amendments to the constitution is a very serious matter and in countries like the USA, UK and India, regular bills takes months or sometimes years to pass them and even they would go to different committees and, always the public is consulted.

In 2000 there was a draft constitution to repeal the existing constitution and it was determined that the Supreme Court had no jurisdiction. Yet it was referred as an urgent bill to a bench headed by the former Chief Justice.

She said that among other matters the 18th amendment sought to remove from the Provincial Councils the administrative control of the police. Under the 13th amendment to the Constitution this would have been referred to the Provincial Councils for their oinion.

This was referred to the Supreme Court and objections were raised but the Supreme Court dismissed it without giving reasons. She said that parliament has powers to peruse the determination by the courts. The only instance an order of the Supreme Court was rejected was when a former former Prime Minister removed a restraining order on the parliament to prevent the appointment of a select committee to the conduct of a former chief justice.

She said urgent problems, which necessitated urgent legislation, can always be dealt with under regulations like the Emergency Regulations which can be reviewed by the parliament. The difference between subordinate legislation and primary legislation is that subordinate legislation can be struck down. She said that whether this urgent bills’ procedure is necessary has to be seriously looked into. As of now it tends to reduce the legislative procedure to a meaningless ritual.

‘Killers of the economy’
Prof Rajaratna indicated that certain ad-hoc bills passed have serious repercussions on the country’s economy and he branded these laws as ‘Arthika Ghathakayo’ (Killers of the economy). These laws have led to a loss in business confidence and would eventually destroy the private sector. He said that these actions would lead to a prevention of the expansion of existing enterprises. There would be a reluctance to launch new business, as there are laws now that vest unlimited power in taking over any business on the pretext of under-performance or under-utilization


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