Oct 09

Looking back at the passing of so-called Aurgent bills and other less urgent ones by Parliament over the past three decades, we find it difficult to think of a single bill which was genuinely in need of rapid processing.  Virtually all past bills have dealt with matters which had been known for years and years, and obviously did not become urgent all of a sudden.  It is our position that there is not one bill passed by Parliament since independence that would not have benefited by its publication in the form of a Green Paper or White Paper, giving at least three clear months for the public, concerned institutions, specialists, academics and legal practitioners, to comment on its purpose, scope and specific provisions.  The recourse to treating bills as urgent has, in truth, been to deter the public from influencing legislation that was largely intended to serve the ends of the party or parties in power.  It has more often than not been a case of political groupings misusing the legislative power delegated in all good faith by the People to Parliament.

We might mention at this point that, although no legal rights or obligations are conferred or imposed by Chapter VI of the Constitution (namely, the Directive Principles of State Policy and Fundamental Duties), its Article 27(4) states that Athe State shall strengthen and broaden the democratic structure of government and the democratic rights of the People …  by affording all possible opportunities to the People to participate at every level in … government.  There is, therefore, at least a powerful moral obligation on our legislators to allow a reasonable opportunity to the People, who are the ultimate repositories of national sovereignty, to have their say on legislation which might well affect them adversely rather than stampede them into supporting, by default, an ignoble political agenda.

Even the token 7 days notice provided for in Article 78(1) for non-urgent bills – viz. that every bill shall be published in the Gazette at least seven days before it is placed on the Order Paper of Parliament – is done away with in the Constitution in the case of bills which are deemed to be urgent.  This provision has been extensively misused in the past, amounting to the public being deliberately and unjustifiably thwarted from having their say in matters of the greatest national importance.  Whilst this kind of haste could be tolerated where the situation demands immediate emergency action, such as a declaration of war or a totally unforeseen major catastrophe, there has been no such justification of this nature over the entire period since independence.  The existing laws were at all times more than adequate to deal with any of the emergencies which have arisen over the past 60 years, without resort to the passing of urgent bills.  To add insult to injury, the government takes no steps whatever to ensure that the Gazette is printed and made available to the public in a timely and convenient manner.

Just as bad is the pressure to which the Supreme Court is made subject in this context.  No reasonable and responsible person can envisage a situation, in other than the most extreme circumstances, in which the Supreme Court needs to be put under the degree of duress stipulated in Article 122(1)(c) – namely, to make its determination on urgent bills within 24 hours (or, more generously, three days – but only if the President allows it at his discretion).

We are raising this issue at this particular point of time because it has been reported in the press that the Cabinet has forwarded an Aurgent bill based on the International Covenant on Civil and Political Rights (ICCPR), which was ratified by Sri Lanka many years ago, to the Supreme Court for a determination regarding the said bill’s consistency with the Constitution.  What we understand is that many of the vital provisions of the ICCPR have been omitted in the proposed bill.  In other words, a matter that is of the greatest importance to the People – and even to political parties – has been kept on the shelf for years and is now being now rushed through as an urgent bill after removing many of its most beneficial features.  For example, the following rights which are enshrined in this Covenant are some of those which newspaper reports say have been omitted from the proposed bill -

a.         The right to life;

b.         Freedom from negative discrimination on the basis of national or social origin;

c.         The security of persons deprived of liberty;

d.         The right to leave the country;

e.         The rights of minorities, including in respect of religion, language and culture;

f.          The right to privacy.

The ICCPR was adopted by the nations in the UN as the instrument for safeguarding the rights of the People of each country, patently against bad governance.  Consequently, there is no reason why our government, after having ratified the ICCPR and the Optional Protocol in 1976 and the Second Optional Protocol in 1991, should wish to continue to deprive the People of the protection given by the ICCPR and its Protocols.  This is a reprehensible case of the persons to whom the People have delegated their sovereign legislative powers (viz. our legislators) misusing that power to deprive the very delegators (viz. the People) of their inherent rights.

It is the passiveness and apathy of the Sri Lankan public in similar situations in the past which continue to encourage our politicians to engage in this kind of skullduggery.  The public just shake their heads when they hear of these things and do nothing to express their displeasure, little realising that each bad law that they fail to object to will lead to worse and worse laws until the remnants of the Rule of Law vanish altogether from this unfortunate land of lotus-eaters.  The public should, therefore, get together in small neighbourhood groups and address petitions to their District MPs to make known their concern at the gradual erosion of the People’s rights.  Even though you can be almost certain that you will get no reply, the writing of petitions, if enough groups get around to doing this on a more or less regular basis, will definitely have a beneficial impact on our lawmakers’ attitudes in respect of their accountability to the People.