Ex CJ faults enactment of controversial Bill

Published : 9:16 am  September 29, 2017 | No comments so far |  | 

(672)

 reads | 
  • AG, Speaker and Elections Commissioner named as respondents in petition filed by Former CJ Sarath N. Silva
  • Original Bill passed at the second reading has been totally ignored with new enactments smuggled in at the Committee Stage resulting in the Bill passed at the third reading being not the Bill passed at the second reading

 

LATE-CITY-DM-1-4

 

By S.S. Selvanayagam   

Former Chief Justice Sarath Nanda Silva yesterday (28) filed a fundamental rights violation petition before the Supreme Court challenging the enactment of the Provincial Council Elections Amendment Bill.   

The Former Chief Justice has named the Attorney General Jayantha Jayasuriya PC, the Speaker of Parliament Karu Jayasuriya and the Chairman and members of the Elections Commission as respondents charging that at the Committee Stage of enacting the Bill, all the operative Clauses of the published Bill passed at the Second Reading of the Bill were deleted and an entirely new set of provisions had 
been introduced.   


“It appears that at the third reading, the original Bill passed at the second reading has been totally ignored and purported enactments smuggled in at the Committee Stage have been approved. Thus the Bill passed at the third reading is not the Bill passed at the second reading. This is a total abuse of the legislative process and a negation of the Rule of Law,” the petitioner points out.   


He alleges that the Attorney General conveniently washed his hands off from the proceedings at the Committee Stage and passed its responsibility to the Speaker who presided as the Chairman of the Committee.   


The petitioner incriminates the Speaker of the Parliament in that the Bill published in the gazette, placed on Order Paper of the Parliament and passed by Parliament at the Second Reading was mutilated by the deletion of all the operative Clauses at Committee Stage and with copious additions and substantial amendments to the Principal Enactment.   

 

  • The Bill passed at the third reading is not the Bill passed at the second reading. This is a total abuse of the legislative process and a negation of the Rule of Law
  • The AG conveniently washed his hands off from the proceedings 
  • The petitioner incriminates the Speaker that the Bill published in the gazette, was placed on Order Paper of the Parliament and passed by Parliament

 

 


The Petitioner contends that these amendments should have been published as a new Bill in compliance with Article 78(1) of the Constitution to notify the People being the repositories of legislative power as to its content to enable any person to challenge the Constitutionality of the Bill.    The Petitioner maintains that any certification by the Speaker in respect of the provisions smuggled in at Committee Stage is ultra vires and Ab initio void, and amounts to an abdication of the executive duty imposed on him to function as an effective check on the exercise of legislative power by Parliament and constitutes an infringement /imminent infringement of the fundamental rights guaranteed to the people including the right to protection of law.   


He accuses the Chairman of the Election Commission that any failure on the part of the Election Commission to hold any election promptly as and when it is due is a denial of the franchise which constitutes the sovereignty of the people.    He also accuses the Chairman and the members of the Election Commission that it has the dubious record of not holding any election from its inception.    He states that the sovereignty of the People is safeguarded in the Constitution by the separation of powers of government as set out in article 4 in relation to the exercise of the Legislative, Executive and Judicial power of the People. 

 

Untitled-1

 

The Sovereignty of the people is further safeguarded by checks and balances that apply inter se in relation to the exercise of such powers by the respective organs of government, he adds.   


He cited the checks as follows: 

 
The requirement in Article 78(1) of the Constitution that “Every Bill shall be published in the gazette at least seven days before it is placed on the order Paper of Parliament”   


The “Yahapalana Government” (the government of good governance) realizing the importance, necessity and value of such public disclosure and transparency extended the period of seven days to fourteen days to ensure that people have a longer period of notice of intended legislation and its legal effect. 

 


 

He sets out the facts as relevant to his application as follows:

A Bill titled “Provincial Councils Elections (Amendment)” was published in the government gazette of 07.07.2017. The Statement of Legal Effect published in the Bill states that every nomination paper submitted shall have a minimum of 30% female candidates.
On 20.09.2017, the said Bill was taken up for second reading by Parliament. Upon the completion of the second reading the Bill as published was referred to a Committee of the whole Parliament. The Committee stage is a line by line reading of the Bill approved at the second reading. 


The Committee Stage proceedings states that the Minister move that in page 1 of the Bill passed at second reading “to leave out lines 8 to 12” and insert ‘Section by the substitution of the words “one week” of the words “four weeks” wherever those words appear in that section’


When this amendment is related to the Bill and the operative words as to female candidates in Clause 2 of the Bill will be removed and some nonsensical words “four weeks” will be included. Strangely, this was approved by the Committee. However, the Speaker made the following order. “Clause 2, as amended, ordered to stand as part of the Bill”The next amendment moved by the Minister is to leave out lines 14 to 26 in page 1 of the Bill. When this amendment is related to the Bill, all the operative provisions as to the female quota of candidates, being the only content of the Bill according to the Statement of Legal Effect, and which was passed at the second reading are removed, and in its place copious new provisions running into pages and pages have been included.. They doe not in any way relate to the published Bill and its legal effect but appear to be wide ranging amendments to the principal enactment; being the Provincial Councils Elections Act of 1988 as amended on several occasions and have been in operation from the commencement of Provincial Councils pursuant to the 13th Amendment to the Constitution. 


An entirely new system of elections based on Electorates has been purportedly introduce at Committee Stage which is intended to be a line by line examination of the Bill passed on the general merits and principles of the Bill at the second reading. 


It appears that at the third reading, the original Bill passed at the second reading has been totally ignored and purported enactments smuggled at the Committee Stage have been approved.


Thus the Bill passed at the third reading is not the Bill passed at the second reading. This is a total abuse of the legislative process and a negation of the Rule of Law.

(672)