The Rule of Law and the Judicial Process

| by Shanie

(December 10, Colombo, Sri Lanka Guardian) This week, we had at last some refreshing news from the Supreme Court. A Bench of three Judges headed by the Chief Justice had declined to give a determination on the Town and Country Planning (Amendment) Bill since the constitutional requirement for the Bill to be placed on the Order Paper of Parliament had not been followed. The Attorney General’s Department which was there to assist Court had failed to draw the attention of the Supreme Court to this deficiency. One can only hazard a guess as to why the representative of the Attorney General failed to do so: whether the brief had not been studied with the professional care that is expected of the Department or whether they were only following the practice of recent years that the government can do no wrong. Indeed, the Attorney-General’s Department seemed to see no wrong, hear no wrong and speak of no wrong by the government in power. But the Supreme Court’s initiative in spotting this unconstitutionality of the legislative process is to be welcomed. In accordance with the Supreme Court ruling, the Bill has now been withdrawn from the Order Paper.

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The Supreme Court’s welcome initiative in this regard is in contrast to its determination in the case of the recent Revival of Underperforming Enterprises and Underutilised Assets Bill. In that case, it delivered its determination after hearing only the Attorney-General on behalf of the government. No opportunity was given to any other party to make alternative submissions and so enable the Court to arrive at an informed decision. On the basis that this was declared by the Cabinet and the President as an "urgent" Bill, the Supreme Court gave its determination without giving an opportunity to an aggrieved party or to anyone acting in the public interest to make submissions for the Court’s consideration.

The concept of Urgent Bills

The Socialist Study Circle is a group of left-oriented thinkers who meet once a month at the Dr N M Perera Centre in Borella to discuss various issues of current interest. They also publish a monthly column ‘Anik Pituwa’ in one of the Sinhala language newspapers highlighting similar issues. In the current issue, Anik Pituwa has included an analytical piece by President’s Counsel Jayampathy Wickramaratne on the phenomenon of "urgent" bills. Ordinary Bills have to be published in the Government Gazette seven days before they are placed on the Order Paper of Parliament. Although this time period too is hardly sufficient (the Gazette is never available to the public on the day of publication), it at least gives some time for the Bill to be challenged in Court. An urgent bill, on the other hand, is not published in the Gazette but sent directly to the Supreme Court for a determination. The Supreme Court must submit its determination to the Speaker within 24 or 72 hours, the time period being decided by the President. Copies of the Bill are not available to the public or even to Members of Parliament, but only to the Cabinet of Ministers who have certified it as an urgent Bill. Unless a cabinet minister ‘leaks’ a copy of the Bill, a citizen has to challenge an urgent bill without seeing a copy of it! Once Parliament adopts a Bill and it becomes law, its constitutionality cannot be challenged in the Courts.

The concept of urgent bills was first introduced in the 1972 Constitution. Here, Wickramaratne produces an interesting statistic. In the five year period of the Sirimavo Bandaranaike government between 1972 and 1977, only five Bills were certified as urgent. But in the first year of the J R Jayewardene government, between July 1977 and August 1978, no less than fifteen Bills were deemed urgent; in the eight years between 1978 and 1986, the figure was thirty-nine. Wickramaratne does not provide statistics for the period of the current Parliament but it will be interesting to see if the Mahinda Rajapaksa government surpasses the J R Jayewardene government in the number of "urgent" legislation presented.

Ordinarily, a law does not make any classification of the persons or things for the purpose of applying its provisions but leaves it to the government to select and classify persons or things for whom the provisions are to apply and lay down the principles or policy for the guidance for the exercise of discretion by the Government. If the government does not follow such policy or guidelines, any affected person could challenge the decision of the Government in court. Many such laws also provide for an appeal procedure.

Wickramaratne points out that when a Bill names the persons or entities to which the provisions of the Bill apply, as in the case of the Revival of Underperforming Enterprises and Underutilised Assets Bill, the accepted legal principle is that if a reasonable basis for the classification does not appear on the face of it or is not deducible from the surrounding circumstances or matters of common knowledge, the Bill should be struck down. No material was placed before the Court as to the basis on which the thirty-seven entities named in the Bill were selected. The Attorney-General did not draw the attention of the Court to this. With post-enactment judicial review not being available, these entities unfortunately have no remedy. The whole process leaves the affected parties the ultimate losers.

The Prem Nivasa Episode

The circumstances of the the arrest of the Missionaries of Charity Nun at Prem Nivasa, Moratuwa leaves a bad taste in the mouth. The head of the National Child Protection Authority who spoke freely to the media in the early stages stated that she, her officials and the Police raided the home on an anonymous call that the Home was engaged in child-trafficking. The raid was conducted on a Friday and the Sister who was in charge of the Home was taken all the way to Wennapuwa after official court hours to a Magistrate with a request for a remand order, which the Magistrate had no reason to refuse given the alleged charges. The Sister had no recourse to a lawyer, and it being the beginning of a week-end, it meant the Sister had to spend the week-end in remand prison. The timing of all this – an alleged anonymous call on a Friday, taking the Sister to Wennappuwa after court hours and leaving the Magistrate with no alternative but to remand her for the period of the whole week-end – gives an ordinary citizen the uncomfortable feeling that the authorities responsible had a sinister agenda.

The head of the National Child Protection Authority wasted no time in telling the media that the charge was that the Home was engaged in selling babies to foreigners. It was also stated that books and documents were taken by the authorities giving the impression that there was prima-facie evidence to prove the charges. Now the scenario changes. The Departments of Social Services and Probation and Child Care have challenged the story of the NCPA and have stated that they have been supervising the work of the Home and have found no cause for any concern. Indeed, this is what many others have stated in public and private. Many Sri Lankans have adopted babies born to unwed mothers at the Home after going through the proper judicial process which included the involvement of the baby’s biological mother as well.

Of course, the truth will come out only if and when the Home or the Sister in charge is charged in courts. A Police spokesperson now does not talk of child trafficking but says the charge is that the Home did not report to the Police cases of under-age pregnant women who sought refuge in the Home. There are hundreds of cases of under-age women becoming pregnant. Irrespective of what the law states, these women would report to the Police only where they wish action be taken against the man who had abused them. Perhaps social workers would know better, but this columnist’s impression is that in most cases the women would prefer to either have an abortion (illegally now or legally if Minister Tissa Karaliyadde’s sensible proposal becomes law) or quietly go through with the pregnancy and give the baby away for legal adoption to foster parents. Prem Nivasa provided such an environment. It does seem that the NCPA’s blundering exercise in this case is to prevent Prem Nivasa being a safe haven for such women.

Prem Nivasa was run by the Missionaries of Charity who are part of the Roman Catholic Church. The less said the better about the role of the Church hierarchy in Sri Lanka in providing support or lack of support to the Sisters.