URGENT Need for an Independent Parliamentary Counsel

For the Attention of Govt. Leaders, Cabinet, Legislators, the Executive, Legal Fraternity and Civil Society

by Chandra Jayaratne

Did Sri Lanka create yet another world record in unprofessional governance with the recent attempt to pass the Port City Bill? Citizens’ expectations of best practices embedded good governance were shattered again by this fiasco! Can a Bill that purportedly passed muster, possibly at the levels of the Legal Draftsman, Attorney General, Ministry of Justice, Cabinet, and was promoted as a law that will be the turning point in economic recovery and path to “Prosperity and Splendour”, contain within more than one third of its clauses, be determined by the Supreme Court as conflicting with the Constitution, the supreme law of the land?

Despite the much talked about capabilities of those at the apex of government, supported by several legal eagles and experienced politicians in the Cabinet, citizens (going by past experience) will not expect the majority of them to be committed to uphold the Constitution, in approving Bills for enactment, despite the oath of office sworn in by them. Most of them will merely follow the leader, party hierarchy and the advisors of the kitchen cabinet whilst some may have not even studied the Bill in its entirety. Some of them may have had a conflict of interests blinding them in approving such legislation doing violence to their executive and legislative responsibility.

However, high officials of the Ministry of Justice, the Attorney General and the Legal Draftsmen being professionals of recognized capability with purported commitment to best practices of their professions, adherence to standards in procedural manuals and professional codes of conduct and ethics, are expected by civil society to discharge their professional obligations; and are in fact bound by the oath taken by them in line with the constitution and the accountability of the offices they hold.

Citizen are perplexed as to how on earth such a Bill in blatant conflict with the Constitution could have been approved by the Attorney General and be drafted by the Legal Draftsman. This experience ex facio (on the face of it), raises the question of whether the Legal Draftsman was the originator of the Bill.

Readers would rely on the news in the front page of the Daily News (April 17) headlined “AG gives nod to Bill”, saying that the Attorney General has informed the Presidential Secretary Dr. P.B. Jayasundera that the Port City Economic Commission Draft Bill is not inconsistent with the Constitution. The news item quoted the AG saying: “I have to advise you that the provisions of the Bill are not inconsistent with the Constitution. The Bill is not subject to any prohibition or restriction imposed by the 13th Amendment to the Constitution and may be enacted by Parliament”.

This raises the million dollar question: Was the Bill tabled in Parliament the same as the Bill on which the AG approved? This ambiguity is further advanced by the submissions and amendments the AG filed in court by the during the hearing and also by the comments made by the President’s Counsel representing the Secretary to the President!

Civil Society urges Leaders in Governance, Cabinet, Legislators, Professionals and the Legal Fraternity to consider the need for an independent and highly professional unit under the Parliamentary legislative structure to be entrusted with the task of legal drafting. Here the specific suggestion is for the transfer of the present functions of the Legal Draftsman to a newly created Parliamentary Counsel

. This suggestion is similar to the presently agreed need of establishing a Parliamentary Budget Office.

Parliament being the sole authority empowered to make laws and approve relevant regulations and be accountable for public finance, a Parliamentary Counsel structure fits well within the ambit of the devolving of power in terms of the constitution. Article 4 of the Constitution reads as “The Sovereignty of the People shall be exercised and enjoyed in the following manner: (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum”.

The Office of the Parliamentary Counsel in UK and Australia are described as follows: “The Office of the Parliamentary Counsel is a group of government lawyers who specialize in drafting legislation. We work closely with departments to translate policy into clear, effective and readable law. Our role will often begin when legislation is first being considered and we will remain involved throughout the Parliamentary process and beyond.

“Our work ranges over a wide variety of subjects – everything for which the government legislates, from the hugely politically-significant and topical, to the niche, specialized and technical and may need to deal with legislation affecting any aspect of modern life. We are responsible for drafting all government bills, advising departments on the rules and procedures of Parliament, reviewing orders and regulations which amend Acts of Parliament, assisting government on a range of legal and constitutional issues. Our priorities are, to help the government to prepare and take through Parliament its programme of legislation, to provide leadership and training for drafters throughout government, to work with colleagues within and outside government to promote good law, to build links with universities, the judiciary and others.

“We are committed to promoting good law – law that is necessary, clear, coherent, effective and accessible. In 2013 we conducted a review into the causes of complexity. Following the review, we launched the Good Law initiative with the aim of making legislation more accessible and understandable for UK citizens. We continue to pursue this aim, which is now reflected in our priorities.”(https://www.gov.uk/government/organisations/office-of-the-parliamentary-counsel/about)

The Australian Office of the Parliamentary Counsel is responsible for drafting and publishing the laws of the Commonwealth of Australia. They draft Bills for introduction into the Parliament, and a wide range of subordinate legislation and proclamations for government agencies and publish the authorized, uptodate versions of the Commonwealth laws. In addition they provide services, including training in understanding the legislative process and in drafting legislative and other instruments. (https://www.opc.gov.au/)

Offices of the Parliamentary Counsel around the world are bound by Standards of Practice, Codes of Conduct and Ethics and these are available for public reference in the form of published manuals. eg. (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/892409/OPC_drafting_guidance_June_2020-1.pdf) and (https://www.opc.gov.au/sites/default/files/s06rd382.v47.pdf)

It is of paramount importance to note the Part 12 of the Australian Parliamentary Counsel noted below in full:

Part 12—Responsibility for constitutional validity and use of constitutional checklist

SES Bill drafter’s responsibility for constitutional issues

104 By submitting Bills for LAP, an SES Bill drafter gives an assurance that he or she is satisfied that the Bill is constitutionally valid (except to the extent to which any concerns or reservations he or she has about the constitutional validity of the Bill are set out in the LAP memo).

105 The SES Bill drafter’s assurance may be based either on his or her own judgement or on AGS advice. Constitutional checklist

106 A constitutional checklist has been developed for use by Bill drafters.

107 Bill drafters are encouraged to use the constitutional checklist as a tool for ensuring that the consideration they give to the constitutional validity of the legislation they work on is systematic and thorough.

Drafters are encouraged:

(a) to make use of the checklist from an early stage in the drafting project; and

(b) to revisit the checklist from time to time during the course of the drafting project (especially if it is a long-term one); and

(c) to put completed constitutional checklists on the correspondence file for the legislation concerned.

108 SES Bill drafters are expected to make use of the constitutional checklist as a training tool for the APCs working with them and to encourage those APCs to use the checklist as a matter of routine to make sure that their consideration of constitutional issues is systematic and thorough.

109 To assist in the creation of constitutional checklists, the Constitutional Checklist macro can be run from within an open Bill document, Bill insert document or Parliamentary amendment document to automatically generate a constitutional checklist with the details for the front page of the checklist already filled in.

Leaders in Governance, the Cabinet, Legislators, the Executive, the Legal Fraternity ( including the Office of the Attorney General, Legal Draftsman and the Bar Association) and Civil Society are urged to give earnest consideration to this suggestion, advocate it and make this essential change for good governnce without delay.