Parliamentary Oversight Committees Cannot Replace Public Scrutiny - Kishali Pinto Jayawardena

Should Sri Lanka have to continually contend with two extremes of rule?

Must her unfortunate citizenry always be driven to either an elitist and mostly incompetent clique or, (on the other hand), a crowd of corrupt and communalistic villains peddling a poisonous cocktail of hatred?

A ruinous pattern of law reform
I may be blamed for painting this grim picture with far too extravagant brushstrokes. But let us not forget that these realities recently underpinned the near-collapse of the State as a democratic socialist republic. A fresh-faced President emerged in 2015 precisely due to these terrible convulsions. Eager to believe as always, Sri Lankans voted for change. But nonetheless, this dysfunction continues. If that pattern extends to the future, it can only bring about ruin.

Let us take as just one example. This relates to the manner in which laws are drafted. With one or two exceptions due to uncompromising persistence by relevant stakeholders, the order of the day is haphazard law reform. As editorially pointed out in this newspaper last week, the Government is apparently intending to enact a brand new Inland Revenue law that is a carbon copy of the International Monetary Fund’s (IMF) tax legislation for Ghana. If this astounding proposal does not lead to public agitation, one wonders what will. Professional organisations have opposed this proposal. But is the Government willing to listen?

And yet another revised version of the Counter-Terror Act (CTA) has been hurriedly ‘leaked’ this week apparently due to a looming deadline of the European Union (EU) with which the Government is negotiating on the preferential trade facility. More egregious offences previously subjected to hard scrutiny in these columns are now removed in this latest draft. Thankfully, the offence of ‘espionage’ has been deleted. The offence of ‘terrorism’ has been pruned.

Revisions due to frantic arm-twisting
In addition, a long list of some thirty six terrorism related offences had earlier prescribed inter alia, causing or intending to cause the commission of violent acts between different communities or racial or religious groups through the use of words intended to be spoken or read or signs. This had to be with intent to cause harm to the ‘unity, territorial integrity or sovereignty of Sri Lanka or the peaceful coexistence of the people.’ Now the reference to ‘unity’ is no longer there.

As the explanatory note to the draft itself concedes, the earlier offence of terrorism and reference to ‘unity’ were vague in law and had been deleted. But did it need such frantic arm twisting for this to happen on the part of a Government which once defined itself by promising to depart from the past? Could not simple commonsense and a desire to have a well conceptualized CTA have sufficed in the first instance to draft offences with a tad more precision? This is, of course, a rhetorical question.

But even despite these revisions, concerns persist. What is offensively vague regarding the term ‘unity’ also applies to ‘peaceful coexistence of the people.’ What does this even mean in law? Moreover a new offence punishes ‘any person who intentionally and unlawfully distributes or otherwise makes available a message to the public with the intent to incite the commission of a terrorist offence.’ This is regardless of whether or not that conduct expressly advocates terrorist offences. On the contrary, the legal test stipulated therein is if it causes ‘danger.’

Also a suspect’s immediate right of access to a lawyer remains ambivalent. Extensive police powers in compelling bank statements, calling for information from service providers and senior public officials etc without applying for magisterial warrant have been retained. Other intrusive measures are specified to be on magisterial warrant. Therefore the exclusion of a similar safeguard in these instances implies that the omission was deliberate. Is the risk thereto of abuse against a well documented background of police corruption extending across the police command structure, not recognized?

Where are the law reform bodies?
But going beyond specific details of the draft CTA and the draft Inland Revenue Act, the country’s law reform process invites broader critical interest. What is the role of the Law Commission of Sri Lanka in this context? We know that a crisply drawn up counter-terror draft formulated by the Commission was cast aside for the present CTA, which emerged through a secretive process and numbers more than 65 pages of grave potential for abuse. Is the Law Commission now redundant in the larger scheme of things?

And what pray, is the function of the Bar Association of Sri Lanka? It is now known more for embroiling itself in unpleasant controversies regarding (personal) recommendations of legal practitioners to High Courts sans knowledge of the executive body than anything else. Predictably, those responsible have, like the proverbial ostrich, refused to admit that mistakes were made even whilst the Judicial Service Commission (JSC) and the office of the Chief Justice have been cast into acute embarrassment. A noted lack of interest of registered lawyers in voting in the recently concluded election of the Bar indicates that course correction should be a priority. However, there is little expectation of this taking place.

Meanwhile the Human Rights Commission of Sri Lanka (HRCSL) has also been requesting that it be sent the revised CTA to no avail. It is a first principle of the electoral compact that a Government elected by the people must be responsible to the people. Is that principle not violated by the IMF, the EU and foreign embassies appearing to know more about Sri Lanka’s proposed laws than Sri Lankans themselves? The Government needs to put these law drafts before the public and invite responses within a reasonable time period.

Beware of patchwork legislation
A hasty tabling of this Bill in the House as a result of EU deadlines cannot be countenanced by any means. That is akin to a person falling from a tree who is then gored by an angry bull. Once that process is in motion, other legislative imperatives follow. For example, legal challenge must then be within a prescribed time period. Absent time for measured scrutiny, the public may well end up with patchwork legislation, incorporating various bits and pieces brought in from various sources.

Overall, there needs to be a radical re-thinking of Sri Lanka’s law reform process. Oversight committees by parliamentarians dominated by political agendas cannot replace the primary duty of the Government to place its draft legislation before the people for independent scrutiny.
 Courtesy - The Sunday Times

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