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Supreme Court on SGST Bill: A landmark decision on fundamental rights

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by Dr Jayampathy Wickramaratne,

President’s Counsel

Article 3 of our Constitution states: ‘In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.’ Article 4, which goes into more detail, describes powers of government as legislative, executive, and judicial. Article 4(d) requires all organs of government to respect, secure, and advance the fundamental rights declared and recognized by the Constitution. They shall not be abridged, restricted, or denied save in the manner and to the extent provided by the Constitution.

Article 3 is entrenched in that a Bill for the amendment or for the repeal or replacement of or which is inconsistent with it would become law only if it is passed by a two-thirds majority in Parliament and is approved by the People at a referendum. An ordinary Bill, not for the amendment of the Constitution, but which is inconsistent with Article 3, would also have to be passed by a two-thirds majority and be approved at a referendum. Article 4 is not entrenched, but the Supreme Court has held that Articles 3 and 4 must be read together. The fundamental rights relating to freedom of thought, conscience, and religion (Article 10) and freedom from torture (Article 11) are also entrenched.

Back in 1996, in the first edition of the book “Fundamental Rights in Sri Lanka”, the writer argued that an ordinary Bill that violates any fundamental right necessarily offends Article 4(d) and consequently impinges upon sovereignty guaranteed by Article 3, and therefore, needs both a two-thirds majority and approval at a referendum.

In its determination on the Eighteenth Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12(1) (equality and equal protection of the law) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.

The Twentieth Amendment to the Constitution Bill sought to restore the immunity of the President in respect to fundamental rights applications that had been taken away by the Nineteenth Amendment. The Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.” The restoration of immunity would need the approval of the People at a referendum, the Court held.

However, a counter-argument was possible that both cases were constitutional amendments and that the exercise of judicial power was involved and, therefore, Article 3 was, in any case, infringed and approval at a referendum necessitated.

In the writer’s article, titled “Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution”, published in The Island on 15 June 2021, it was pointed out that the Supreme Court only determined that certain provisions of the Port City Bill violated fundamental rights and thus required a two-thirds majority but did not go further to say that the offending clauses also needed approval of the People at a referendum.

The writer further stated: “Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament. … However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People, by using such majority.” It was submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated, and a referendum is necessary.

This week’s Supreme Court’s determination on the Special Goods and Service Tax Bill clears the issue beyond doubt. Justices Vijith Malalgoda, Murdu Fernando and Yasantha Kodagoda held that Clauses 2, 3, and 4 of the Bill were inconsistent with Article 12 (1) (equality and equal protection of the law) and also with Articles 3 and 4 (d), thus requiring a two-thirds majority in Parliament and approval a referendum.

The learned Judges explained: “As recognized by Article 4(d), fundamental rights form a component of the sovereignty of the people. It is to be noted that fundamental rights is a critical component of sovereignty, as it is fundamental rights that enable People to (a) reap the full benefits of being born human, (b) enables the exercise of liberty, (c) provides for protection of life and freedom from harm, (d) provides for the exercise of sovereignty, (e) facilitates human development, (e) ensures equality including parity of status among human beings and non-discrimination, and (g) creates a conducive environment for peaceful coexistence among the different communities of the People of Sri Lanka. Thus, a Bill that is violative of fundamental rights, would amount to an infringement of the sovereignty of the people, and therefore infringes Article 3 read with Article 4 of the Constitution.”

Following the Supreme Court’s determination, a Bill that is inconsistent with any fundamental right would need approval by the People at a referendum in addition to a two-thirds majority in Parliament. The determination is thus a landmark in Sri Lanka’s fundamental rights jurisprudence.



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Features

The challenge of keeping value-based politics alive

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Anti-migrant protests in Durban, South Africa. BBC

The current outbreak of anti-immigrant protests in Durban, South Africa is bound to have taken many a subscriber to value-based politics or political idealism quite by surprise. After all, this is evidence that despite the historic accomplishments of nation-builders of the stature of the late President Nelson Mandela it cannot be taken for granted that identity politics, including racism in its worst forms, is no more in South Africa.

At the time of this writing details are scarce on the substantive root causes of the protests but it could very well be that economic grievances, particularly on the part of the majority community in South Africa, are contributing considerably to the disaffection. Shrinking employment and material prospects are likely to figure majorly among the factors igniting the unrest.

Fortunately, the local authorities in Durban are losing no time in calling for peaceful co-existence among the relevant communities and are pointing to the vital importance of stepping-up national integration processes. Apparently, immigrants in sizable numbers from neighbouring countries are present in Durban. However, international TV footage of the protests quoted some local authorities as saying that the majority of the immigrants in some centres that housed them were not illegal migrants and had the documents that entitle them to be in Durban.

In the Durban protests the world has fresh proof of the socially divisive consequences of the gathering globe-wide economic disaffection, touched off particularly by the continuing crisis in West Asia. Going ahead, the world would need to brace for increasing identity-based unrest of the kind it is just witnessing in South Africa.

Considering that the material lot of ordinary people everywhere could only aggravate progressively, with the US and Iran showing no signs of negotiating an end to their confrontation any time soon, it will be left to the more democratic and progressive sections of the world community to initiate positive measures collectively to bring a measure of relief to the discontented.

The swiftness with which such relief will be provided would depend crucially on the importance those sections taking up these undertakings attach to value-based politics as opposed to Realpolitik of power politics.

Going by these yardsticks, Italy could be considered to be moving in the right direction. Recently Italy came to the fore in initiating the collective named, ‘Rome Coalition for Food Security and Access to Fertilizer’, which has as one of its aims the swift provision of fertilizer to economically weak African countries.

In a recent statement Italian Minister of Foreign Affairs and International Cooperation, Antonio Tajani, said that a principal aim of the project was to ensure that the farmers of Africa gained easy access to fertilizer, considering that food security is a growing concern among some of Africa’s economically vulnerable countries.

The statement went on to mention that some 30 countries hailing from the Mediterranean region, the Middle East, the Balkans as well as the FAO had been invited to join the coalition. The venture is far-seeing in that food security is main among the reasons for social discontent which in turn could degenerate into endemic political turmoil and bloodshed. Separatist violence and geographical fragmentation of countries wouldn’t be too far behind these developments, as Africa itself has often proved.

It is hoped that more G7 countries would take the cue from Italy and do what they could to ease the hardships of economically distressed countries, particularly of the global South. In these efforts they would need to break rank with the US, which is today brutally indifferent to the consequences of its policy of making ‘America First’, come what may.

Going by current developments, the Trump administration seems to be blithely oblivious to the wider, deleterious effects of its policy course in West Asia. Besides rendering Iran militarily and otherwise impotent nothing else seems to matter to Washington, as regards West Asia. This is policy short-sightedness of an extreme kind. After all, right now West Asia could be said to be sitting on the proverbial powder keg.

On the other hand, Iran is not giving the world the impression that it is doing anything constructive to get out of the policy straitjacket that it wove for itself decades ago. Rather than enter into a policy of ‘live and let live’ in relation to Israel in particular and initiate a process of reconciliation with the latter, it has chosen to operate within policy parameters that continue to damn Israel. This has put Israel always on the ‘defensive’ so to speak and prevented the opening up of space for meaningful dialogue.

That said, Israel is obliged to explore the possibilities of entering into a negotiatory process with the Arab-Islamic world that could lead to a de-escalation of tensions and bloodshed. It cannot continue to look at its neighbours through lenses that distort them as archetypal enemies who should be ‘wiped off completely from the face of the earth.’

In other words, the need is urgent for Realpolitik to give way to value-based politicks. Italy is beginning to prove that the latter approach could be pursued with some success. May be the EU and the UK could throw their weight behind these initiatives as well and establish that international politics could be refashioned on the basis of humane, civilized norms. The UN would need to be fully supportive of these moves and prove an organizational nucleus of the operations that follow.

In fact the time is ripe for people of conscience to collectively stand up on the side of peace and say ‘No’ to war and violence. Organizations such as the ICRC, the WHO and Medicines Sans Frontiers have already taken up this call. Referring to the widespread destruction of health facilities and their dehumanizing results these organizations have said, among other things, that ‘This is not a failure of the law. It is a failure of political will.’

True, ‘failure of political will’ among those powers that matter accounts for the runaway, uncontrollable nature of war and destruction in contemporary times, but more fundamentally it is a failure of the human conscience. It could very well be that the phenomenal levels to which violence and war have been unleashed today have had the effect of deadening consciences. This is a matter for urgent study and wide discussion.

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Features

Vesak celebrations … with Cuteefly

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Perfect for celebrations, gifts, and meaningful occasions // Gift pack

I would describe Indunil Kaushalya Dissanayaka as innovative and creative, and she operates under the name of Cuteefly.

Indunil always comes up with something novel to celebrate special occasions, and she does it with candles … and that’s her profession.

She was in the spotlight when she created a happening scene, with candles, for Christmas, Sinhala and Tamil New Year, and Valentine’s Day.

As lanterns light up Sri Lanka for Vesak, the Colombo-based candle maker is quietly turning wax and wick into little pieces of the festival.

Candles reflecting Vesak themes

Her candles reflect Vesak themes – light, peace, remembrance, giving, etc., to enable you to fill your Vesak celebration with devotion and beauty.

Among her Vesak creations is a lotus-shaped soy candle, scented with sandalwood, lavender, etc., meant to burn during this Vesak Poya Day.

Indunil Kaushalya Dissanayaka: Customers
praise her for her creativity

These handcrafted Vesak candles are perfect for offering at the temple, she says.

What makes her creations so novel is that they come in different shapes, scents, themes, and all are handmade.

What’s more, her customers have heaped praise on her for her creativity.

According to Indunil, her creations are perfect as a thoughtful gift … to bring beauty, unity, and light into every moment.

Says Indunil: “Our beautifully handcrafted Unity candles are designed with premium detail and love, making them perfect for celebrations, gifts, and meaningful occasions.”

Cuteefly, says Indunil, is available online.

Readers could contact Indunil on 0778506066 for more details.

He Facebook Page is: Cuteefly.

Handmade with love

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Features

Dark Spots …

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Yes, dark spots do crop up on the skin, especially with sun exposure and, of course, as the skin ages.

However, these tips should be of immense benefit to those who are faced with dark spots.

Lemon and Honey Glow Mask:

You will need 01 teaspoon lemon juice and 01 teaspoon honey.

Mix the lemon juice and honey well and then apply this mixture, only on the dark spots.

Leave for 10–15 minutes and then rinse with cool water.

Benefits:

Lemon helps brighten pigmentation.

Honey moisturises and heals skin.

Gives a natural glow.

* Aloe Vera Gel Treatment:

All you need is fresh aloe vera gel.

Apply the gel apply on dark spots, before going to bed.

Leave overnight and wash in the morning.

Benefits:

Reduces acne marks and pigmentation.

Soothes irritated skin.

Helps skin repair naturally.

Turmeric and Yoghurt Paste:

You will need 01 teaspoon yoghurt and a pinch of turmeric

Mix the yoghurt and turmeric into a smooth paste and apply on affected areas.

Leave for 15 minutes and then wash gently with lukewarm water.

Benefits:

Turmeric brightens skin naturally.

Yoghurt removes dead skin cells.

Helps fade dark spots gradually.

Use these packs 02-03 times a week as results are generally seen over time.

You can also try this out: Mix a ripe papaya into a smooth paste and apply to the face, or directly on to the dark spots. Leave for 15-20 minutes and then wash with lukewarm water.

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