SC asks Parliament to address inconsistencies in four clauses at committee stage

By Shamindra Ferdinando

The Sectoral Oversight Committee on National Security has given the go ahead for the enactment of the National Hydrographic Bill.

Chairman of the Committee, Rear Admiral (Retd.) Sarath Weerasekera recently told a senior delegation that represented the National Aquatic Resources Research and Development Agency (NARA) it could propose amendments through the relevant Minister at the committee stage.

The former Navy Chief of Staff said so responding to the NARA declaration that the new law would deprive the agency of some of its current responsibilities.

Navy Commander Vice Admiral Priyantha Perera stressed the importance of the new law that would help the country to earn significant income in USD terms. VA Perera explained how the national economy could be strengthened by bringing in the new law.

Having declared its strong opposition to the Bill, NARA Scientists’ Association President S.P.K. Liyanage moved the Supreme Court. Since then, the SC has sent its ruling to Speaker Mahinda Yapa Abeywardena. In addition to NARA, hydropgrapher Don Lalith Priyankara Hewage, Liyanage Prasad Augustus Shanthapriya Perera, President, Surveyors Institute of Sri Lanka, filed action under Article l21 read with Article 123, Article 78, and Chapter XVI of the Constitution.

The determination was made on Nov 16, 2023 by Justices Yasantha Kodagoda, PC, Mahinda Samayawardhcna, and K. Priyantha Fernando.

Justice Minister Dr. Wijeyadasa Rajapakshe recently declared in Parliament the apex national institute vested with the responsibility of carrying out and coordinating research, development and management activities of aquatic resources in the country has failed in its primary responsibilities. The new law is meant to constitutionally empower the Navy to prepare Electronic Navigation Charts (ENC) and Nautical Charts required by foreign vessels passing through Sri Lankan territorial waters, Minister Rajapakshe said.

Declaring that four of the claues in the Bill were inconsistent with the Constitution, the SC bench recommended that the amedments recommended by the apex court be moved at the committee stage.

They are:

Vice Admiral Priyantha Perera
(Pix courtesy Parliament)

(A) Clause 15(2) (c) of the Bill is inconsistent with Article 12(1) of the Constitution and could be validly passed only with the special majority provided for in Article 84 (2) of the Constitution. However, that inconsistency could be rectified if clause 15(2) (c) is amended to read as follows:

“Be a Hydrographic Surveyor with at least 15 years post-qualification experience in

(i) engaging in professional activity of a Hydrographic Surveyor;

(1i) hydrographic project management and

(iii) thorough understanding in nautical cartography.”

(B) Clause 23(3) of the Bill is inconsistent with Article 12(1) of the Constitution and could be validly passed only with the special majority provided for in Article 84 (2) of the Constitution. However, the said clause would cease to be inconsistent if it is read as, instead of “the office may cancel”, “the Office may after due inquiry cancel”

(C) Clause 25 of the Bill is inconsistent with Article 12(1) of the Constitution and could be validly passed only with the special majority provided for in Article 84(2) of the Constitution. Clause 25 would cease to be unconstitutional if the word “or” is deleted and the word “and” is substituted therefor.

And (d) Clause 43 of the Bill is inconsistent with Article 12(1) of the Constitution and could be validly passed only with the special majority provided for in Article 84 (2) of the Constitution. However, the above inconsistency would cease to exist if the words “or special” is removed from Clause 43, the power to issue directions is qualified in the following manner and for the amended clause to read as-

“Minister may from time to time, for the purpose of giving effect to the objectives of the Act and state policy, issue to the Council, general directions as to the exercise, performance and discharge of the powers, duties and functions of the Office.”

The Parliament is expected to debate this Bill in the early part of this year.