Sri Lanka’s parliament erupted in a heated debate over bringing last-minute changes to bills in the so-called committee stage by bypassing judicial review, in a country that no longer has post-enactment reviews of legislation by the court.
The constitutional amendment raised the number of Supreme Court justices from 11 to 17 and Court of Appeal judges from 12 to 20 in a last-minute change that was not in the original bill, opposition legislator Eran Wickremaratne said.
The 20th amendment also reduced the time given for post-enactment review to 7 days from the current 14 days for so-called ’emergency’ bills, which was halted in the 19th amendment due to past abuses.
New committee stage changes allow the Supreme Court to be bypassed altogether and limit the parliament itself to a day or a few minutes and citizens who are affected by the law no prior knowledge at all, critics say.
“We have no objection to raising the number of judges as there is a backlog of cases, but this is a substantial change that we had no opportunity to submit to the court for review.”
“He lied to me,” opposition legislator Rauf Hakeem said to the accompaniment of calls of ‘kolay wahala gahanawa’ by colleagues.”I raised this issue with the honourable Minister of Justice yesterday.
“In this chamber, I asked whether you are going to bring in any new amendment which was not in the original bill. You told me you are were not going to do that. I knew this was going to come.”
He said raising the number of judges was an important matter that should have been discussed. But now there was no opportunity to discuss or submit to judicial review.
“With the ability of the President to appoint judges at his sole discretion this is going to seriously change the composition of the court,” he said.
Justice Minister Ali Sabry said he was asked whether committee stage changes were being circulated, and said all of the changes would be in that.
“I never misled,” he said. “What we are doing is strengthening the Supreme Court and the Court of Appeal.”
Hakeem said the last administration had also made a similar move in a bill.
“That should never be repeated,” he said.
Sabry charged that in an electoral bill substantial changes had been made during the last administration at the committee stage.
Opposition legislator Harsha de Silva said one of committee stage changes proposed which were completely different from what the Supreme Court had ordered would have allowed the administration to continue in office even if the budget was defeated.
“The Supreme Court suggested that the President be allowed to dissolve the parliament after 2.5 years instead of the one year in the 20th amendment,” de Silva said.
“But what is in the amendment? It says something completely different. It says if the President dissolves parliament after the budget is defeated twice the next parliament could be dissolved after 2.5 years.
“What is that? Nobody talked about anything like that? It means the President can dissolve the next parliament in 24 hours if one parliament completes its term.
“But I am happy to say when I brought this up, Honorable Minister Ali Sabry told me to submit a change at the committee stage and he will make it. He said it was a technical error.”
No Post-Enactment Review
Opposition legislators said they objected to the move to bring back emergency bills with the time given to object slashed from 14 to 7 days.
Sri Lanka had no post-enactment review of bills. Once a bill is passed, with substantial changes right or wrong no one can challenge it unlike in free countries.
“Even better than me a Professor said in parliament in 2015,” Wickremaratne said in reference to current education minister G L Pieris. “You know that under the constitution of Sri Lanka if any bill had been signed by you (the Speaker) it cannot be challenged by any court.
“In America and in India the situation is different. In those countries, there is a post-enactment judicial review. In those countries even if the parliament had passed, a citizen can go to the Supreme Court and argue that the law is against the constitution.
“That right they have. In our country, that right is not available. We only have a pre-enactment review.
“That is why we oppose these (committee stage) clauses in principle.”
“Bringing of urgent bills also we oppose it. Though it says national security or disaster, once this door is open, any bill can be brought in because there is no definition of what is national security or a disaster.
“The time given for judicial review is 24 hours.”
Long Decline of Liberty
Victor Ivan, a political analyst who had campaigned against the direct appointment of judges by the President and the judicial corruption that came in the wake, said the 19 amendments which were repealed also did not bring back post-enactment review.
“A Judiciary without this power cannot be reckoned to be an independent Judiciary,” Ivan said “However, the judiciary of Sri Lanka can be considered as one that has largely lost its jurisdiction on the judicial review of the acts of the Legislature and the Executive.
“If the 19th Amendment could be considered a major turning point in the field of democracy, it was by that this error should have been rectified, but it did not happen.”
Ivan said unlike in India Sri Lanka’s Supreme Court had not defended the constitution and the violations of freedoms of citizens.
“The role played by the Supreme Court of India in protecting and modernizing democracy in India is immense,” he says.
“Regrettably the Supreme Court of Sri Lanka has not played such a major role in this regard.
“Although the Donoughmore Constitution has vested the power of judicial review in the Supreme Court, the latter, however, did not exercise it to prevent the enactment of Citizenship Ordinances which were introduced in violation of the Constitution or to avert injustices caused by the enactment of the Sinhala Official Languages Act.
“Instead, what it had done was to gang up with the ruling party and pursue a policy of collaborating with the latter allowing the violations to become established.
“The First Republican Constitution of 1972 completely abolished the power of review of the judiciary, and the Second Republican Constitution of 1978 curtailed it and kept it within a limited frame.
“Not only that this situation did not provoke strong opposition from the judiciary, but also, the Supreme Court did not show any interest in securing the power of judicial review to itself.”
Ivan said in the case of the 20th amendment Sri Lanka’s Supreme Court not only approved the changes, many of which undermined the sovereignty of the people but had also provided guidance.