Sri Lanka: Law Regardless of the Law

Ordinarily a law will not make any classification of the persons or things for the purpose of applying its provisions but would leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply and lay down the principles or policy for the guidance of 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.

l by Jayampathy Wickramaratne

(December 06, Colombo, Sri Lanka Guardian) The Revival of Under performing Enterprises and Under utilised Assets Bill that was passed as an urgent Bill has generated much public discussion about its content as well as the procedure followed. It is the procedure followed that I wish to write about and not the policy involved.

Urgent Bills

Ordinary Bills are published in the Gazette seven days before it is presented to Parliament. A Bill can be challenged in the Supreme Court within seven days of the first reading. On the other hand, an urgent Bill is not Gazetted but is sent to the Supreme Court to decide on its constitutionality. The Court is given between 24 hours to three days to make its determination, the period being determined by the President. Even MPs get copies of the Bill only on the day it is presented to Parliament. So, a citizen has to challenge an urgent Bill without even seeing it. While there may good reason to pass a Bill urgently, the problem is that under both the 1972 and 1978 Constitutions, the constitutionality of an Act of Parliament cannot be questioned in a court after it has been passed.
The concept of urgent Bills was introduced by the 1972 Constitution. It must be said in fairness to the Sirimavo Bandaranaike Government that only five Bills were presented as urgent Bills. It is the J.R. Jayawardena that gave the lead in misusing the urgent Bill provision. During the period July 1977 to August 1978, as much as fifteen Bills were urgent Bills. During the period 1978 to 1986, thirty nine were urgent Bills. All successive Governments followed JR.
In practice, even ordinary Bills go unnoticed. In the olden days, newspaper reports on Parliamentary debates had a list of Bills presented, but not anymore. Bills are not always available at the Publications Bureau. The effect of most legislative provisions are felt only when they are being enforced. There have been many instances of obviously unconstitutional provisions going unchallenged. 
An argument against post-enactment judicial review is that there should be certainty as regards the constitutionality of legislation. Also, rights and liabilities that may have accrued under the law in question would be wiped out, with drastic consequences. However, no serious problems have arisen in jurisdictions where post-enactment judicial review is permitted. To mitigate hardships that may be caused by legal provisions being struck down years later, the Indian Supreme Court has used the tool of “prospective over-ruling”, limiting the retrospective effect of a declaration of invalidity in appropriate cases. The South African Constitution expressly permits such limitation.
If post-enactment judicial review is allowed, a Government will not be able to misuse the urgent Bills provision. The All Party Representative Committee (APRC) has also agreed that post-enactment judicial review should be permitted with a safeguard as in South Africa.
Legislative classification
Ordinarily a law will not make any classification of the persons or things for the purpose of applying its provisions but would leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply and lay down the principles or policy for the guidance of 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.
The Business Acquisition Act moved by Dr. N.M. Perera provides that every order of acquisition made by the Minister should be approved by Parliament. Also, there is an appeal to an Advisory Board against such an order. Any person aggrieved by the takeover of land under the Land Reform Law could challenge an order of the Land Reform Commission in courts. The Ceiling on Housing Property Law provides for a Board of Review and a decision of the Board is reviewable by courts.
When a Bill does not leave the classification to the Government but names the persons or entities to which the provisions of the Bill apply, 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, Bill should be struck down.
An example of such a law is the Lake House Takeover Law. The Bill was not an urgent Bill and was reviewed by the Constitutional Court for several days. The Court noted that the Press Commission headed by a Supreme Court judge had recommended that Lake House be acquired and that the Criminal Justice Commission had found that Lake House and several of its Directors had violated the Exchange Control Act and the Income Tax Act. The Court held that the takeover of Lake House could be justified on that basis.
The Revival of Under performing Enterprises and Under utilised Assets Bill named the entities to be taken over and no material was placed before the Supreme Court to explain on what basis the entities were selected. With post-enactment judicial review not being available, there is now no remedy.
If in the future a Government brings a Bill that seeks to proscribe a few named trade unions during a period of industrial unrest alleging that their actions are hurting the national economy or to ban a few named newspapers as being anti-national, there is nothing that can be done once the law is passed. This is the danger of legislative classifications when post-enactment judicial review is not available.
Agrarian Development (Amendment Bill)
Agrarian services is a devolved subject but in 1991 the UNP Government misinterpreted a judgment of the Supreme Court judgment and took over Provincial Departments of Agrarian Services. Despite the Supreme Court clarifying in a subsequent case that matters relating to landlords and tenant cultivators come under the Provincial Councils, the departments have still not been handed back. The Agrarian Development Act was recently amended. While the provisions of the Bill relating to tenant cultivators may be laudable, none of the parliamentarians who speak outside in favour of devolution and the full implementation of the 13th Amendment raised the issue that agrarian services is a devolved subject and should be handed back to Provincial Councils for administration.
Courtesy: Anik Pituwa

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Author: Sri Lanka Guardian

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