Revival Of Underperforming Enterprises And Underutilized Assets Bill
The window of opportunity for challenging a Bill in the Supreme Court is critical to the Rule of Law
By Shibly Aziz President’s Counsel and President of the Bar Association of Sri Lanka
A draft (Bill) of a law proposed to be passed by Parliament titled, The Revival of Underperforming Enterprises and Underutilized Assets Act was recently referred to the Supreme Court for its consideration as a Bill that is ‘urgent in the national interest’ in the opinion of the Cabinet of Ministers, acting under Article 122 of the Constitution.
This reference is a departure from the normal course provided by the Constitution for introduction of legislation, and effectively removes the normal opportunity granted by any concerned citizen to refer the Bill for the determination of the Supreme Court, as to whether the law or any part of it is inconsistent with any provision(s) of the Constitution, and if so, whether the Bill (or any part of it) requires a majority of at least two-thirds of the Members of Parliament as well as whether a Referendum would also be required additionally.
In the normal course, under Article 78(1) of the Constitution, every Bill is required to be published for the public in the Gazette at least seven days before being placed on the Order Paper of Parliament. In this way, any citizen is granted the right to challenge a Bill within one week of it thereafter being placed on the Order Paper of Parliament, by reference to the Supreme Court by a petition, as provided by Article 121 of the Constitution. This must be done, with a copy of the petition being sent to the Speaker of Parliament. A ‘citizen’ for this purpose is defined in the Constitution as not only being individuals who are citizens, but also any ‘body’ (whether incorporated or unincorporated) of which at least two-thirds of members are citizens.
This limited window of opportunity for challenging a Bill in the Supreme Court for a determination that it is unconstitutional, is of particularly vital importance to the Rule of Law and the protection of rights and liberties of the public – particularly in relation to fundamental rights, given that in Sri Lanka, there is no provision to challenge a law after it has been passed in Parliament and been certified by the Speaker as such, even if it contains provisions that are unconstitutional or violate fundamental rights of affected persons. The Supreme Court has held that under Sri Lankan law (Constitution), there is no possibility of post-enactment review of any Bills passed in Parliament.
The urgent procedure provided in Article 122, removes the opportunity granted to citizens to challenge a Bill and removes from the Supreme Court the time of three weeks available for consideration for inconsistency with the Constitution, as well as the ordinarily assured ability of a citizen to effectively canvass its concerns as under the normal process set out above.
It is self-evident that this fast-track procedure is intended only for exceptional, rare situations where urgency in the national interest requires a shortening of the time period for the determination by the Supreme Court. Resort to this ‘fast-track’ procedure constitutes pressure on the Supreme Court, to arrive at a full and final determination in respect of a Bill which cannot be challenged in any court thereafter, in a very short period of time – and that too without the benefit of a fuller hearing of all concerned and affected citizens.
In such situations, the Attorney General is granted the ability to make submissions to assist Court. However, it should be noted that the Attorney General practically represents and defends the interests of the Government and cannot fairly or reasonably be expected to know or give full expression to the vital concerns and particular scenarios of affected and concerned persons in the course of submissions to Court on the Bill’s provisions. To place such a high burden on the Attorney General, is thus impractical, unworkable and unfair. For all of these reasons, it is most evident that resort to this fast-track procedure is only acceptable where there is a serious and irremediable detriment to the national interest, if the normal procedure for passage of legislation is adopted. Such instances are extremely rare and generally capable of justification based on precise compelling reasons for such haste to enact.
The Bar Association (BASL) has in the past, indeed through the past decades and to earlier Governments , expressed serious concern at the need to ensure that the right of citizens to subject proposed legislation to pre-enactment judicial scrutiny in respect of concerns they entertain as to unconstitutionality of any Bills are respected and given effect to.
It has in the past, appealed that no government should resort to passage of legislation in a manner that unnecessarily or unfairly deprives:
a. citizens of their ability to effectively petition the Supreme Court; and
b. the enablement granted thereby to the Supreme Court to make its final determination as to constitutionality in due consideration of concerns of all affected/concerned citizens who thus petition.
However, we note with concern that nonetheless, a Bill titled: “Revival of Underperforming Enterprises and Underutilized Assets Act” was referred to the Supreme Court recently (in October 2011) for fast-track determination under Article 122 of the Constitution as a Bill ‘urgent in the national interest’.
No reason is discernible as to why the Bill could not have been placed on the Order Paper of Parliament for the citizenry to be able to exercise their right of pre-enactment review of the proposed legislation within one week of such placement (this procedure is itself quite quick). The institutions expressly covered by the Bill have been in their present state for years, and in the circumstances, any urgency that justifies negation of the full exercise of the right of pre-enactment review by concerned citizens/affected persons is questionable.
The resort in this instance to the fast-track procedure under Article 122 of the Constitution has effectively deprived the citizenry and affected persons/stakeholders of the possibility of taking steps to make representations to the Supreme Court in respect of alleged inconsistencies with the Constitution.
Only the representative of the Attorney General was able to make submissions to the Supreme Court when the Bill was taken up suddenly (with the public kept uninformed), despite the far reaching ramifications of the Bill. The Bar Association itself was unaware of the fact that such a Bill of tremendous implication was being referred to the Supreme Court, until after the Supreme Court had taken the matter up for consideration. Thus, serious questions as to the consistency of the Bill with the Constitution, have not been urged in the Supreme Court on behalf of even the directly affected citizens/stakeholders who are expressly identifiable from the two Schedules to the Bill, which sets out identified ‘Underperforming Enterprises’ and ‘Underutilized Assets’. There are also appear to be serious questions as to the workability of the proposed law in the manner formulated in the Bill which require to be addressed.
In the circumstances, we appeal to H. E. the President, the Government and all promoters of the Bill to take steps to ensure that the said Bill is withdrawn and not passed without opportunity of further careful scrutiny by the Supreme Court in a manner that enables affected stakeholders and citizens to effectively canvass their concerns as to the unconstitutionality of the Bill.
We further reiterate the need to ensure that in the interests of the Rule of Law and the democratic values of seminal importance to the Republic, no steps are taken in the future to introduce Bills in a manner that unreasonably prevents or reduces the space for fuller canvassing and consideration of issues pertaining to inconsistencies of Bills with the Constitution.