Bad Bills

Thursday 24th February, 2022

The government finds itself in a quandary over its Special Goods and Services Tax Bill (SGSTB), which, the Supreme Court has said, contains sections inconsistent with the Constitution, and therefore will have to be approved by the people at a referendum in addition to being passed with a two-thirds majority in Parliament if it is to become law. Nothing could be a more worrisome proposition than a referendum to the government, which is suffering from what may be called ‘polls phobia’, which has caused it to postpone the local government elections.

Worse, the apex court has said it will be impracticable to suggest amendments to the SGSTB’s clauses inconsistent with the Constitution as they will fundamentally alter the basic nature and structure of the Bill and run counter to its declared objectives. The court has said that while exercising discretion conferred on it by the Constitution, it will refrain from determining the manner in which the Clauses 2, 3, 4, 5 and 9 (1) could be amended so as to alter such clauses to become consistent with the Constitution.

The SGSTB was aimed at empowering the Treasury to rake in the proposed new tax, and revise VAT at the expense of the powers of the Inland Revenue Department, whose workers took to the streets in protest. It will be interesting to see how the government seeks to achieve its objective.

The aforesaid Supreme Court determination is tantamount to an indictment of the Attorney General’s Department, which is reported to have cleared the Bill. How come such a bad Bill found its way into Parliament? It looks as if someone had been in a mighty hurry to have it drafted in a bid to rush it through the House in double quick time. Hence the need for all issues that lead to disagreements on Bills in Parliament to be referred to the Supreme Court. There is no substitute for judicial scrutiny of such matters. Unfortunately, there are instances where this golden rule is not followed.

When the Provincial Council Elections (Amendment) Bill was presented to Parliament, in 2017, the then Joint Opposition (the rebel group of the UPFA) insisted that it had to be approved by the Provincial Councils as well, but the then Speaker Karu Jayasuriya claimed he had consulted the Attorney General, and the latter had said there was no such need. Several questionable sections incorporated into the Bill at the committee stage before being ratified, enabled the yahapalana government, which feared elections, just like the present dispensation, to postpone the PC polls indefinitely. The JVP and the TNA unflinchingly voted for the Bill!

We reported the other day that TNA leader S. Sampanthan had sought Indian Prime Minister Narendra Modi’s intervention to have the provincial council elections held. Now, he wants Modi to clean up the mess the TNA collaborated with the yahapalana government to create!

Many are the instances where the Attorneys General have given the wrong advice to governments. In a country like Sri Lanka, where unauthorised sections are smuggled into Bills even after their ratification, the need for a constitutional provision to enable the post-enactment judicial review of legislation cannot be overemphasised. The questionable provision for the appointment of defeated candidates to Parliament via the National List may serve as an example. The Bill that was passed by Parliament in respect of the National List in 1989, was altered after its ratification, and what the Speaker signed into law contained a provision for bringing in defeated candidates to Parliament through the backdoor as National List MPs. This illegal provision would not have become a fait accompli if the judiciary had been empowered to review laws passed by Parliament.