Sinhala  Tamil    Seperate    
Governtment of Sri Lanka

Sri Lanka Rights Watch 63 - Transparency with regard to Law

( Created date: 14-Jan-2013 )

The importance of recent legislation to change the electoral system for local government elections was such that it clearly made sense on all sides to refrain from trying to improve the content of the Bill, but instead to concentrate on making it law. The government has after all agreed to further amendments by mutual consent later on, including increasing the proportion of those to be elected on a list basis to 40%.
I was told that one reason for not introducing that amendment at the Committee stage was that the Legal Draughtsman’s Department had said that would be difficult. I am not sure if this was correct, but if so it indicates how useless that Department has become. It was because of flaws in the draft last year that consideration of the Bill was postponed, and I very much feared then that opponents of the changes would prevail and prevent the Bill being brought forward again. 
After all, though the whole country wanted change in the perverse system of preferences that J R Jayewardene introduced, the only people who had benefited from it, namely legislators elected under that system, were those who had to make the changes, and one cannot expect modern day turkeys, unlike those in the 1977 Parliament who allowed Jayewardene to destroy the power of Parliament, to vote for Christmas. 
The Bill as it stands makes clear the continuing detachment from reality of the Draughtsman’s Department – a factor that I think is understood by the new Legal Draughtsman, who saw immediately the absurdity of current practice, though I gather she will not be at the helm long enough to ensure change. 
An obvious lunacy is the system of ensuring that no one can readily understand laws, least of all the legislators who have to vote them into existence. This is done by only introducing amendments to laws, including to laws that have already been amended. As I said in the Note I prepared for the Minister who asked about errors in the Bill – 
Confusion – Amending with no clarity as to what is being amended
We must stop the practice of continuing to have texts that simply mention amendments. This became a habit in the days of typewriters. With computers, we should simply repeal the old Bill and introduce the new one. A schedule could be provided to indicate changes.
The present practice is very confusing, and makes a mockery of legislators, since they cannot be expected to understand easily what they are voting for. It also introduces ambiguities, and will provide a field day for lawyers to argue, when the laws of the land should be clear and understandable by all.
The confusion extends to the Department too, as I noted 18 months ago when the Local Authorities Elections Bill first came up. I wrote then that ‘in addition to other problems, the draft amendments….. confused the date of nominations with the date on which nominations had been called.
The Inland Revenue (Amendment) Act was even more confusing. I gave up trying to understand it when I came to Clause 13, which was intended to amend Section 23 of the 2006 Act, This Section, as amended by Act No 9 of 2008, was to be ‘further amended by the substitution in subsection (1), for the words “the first investment, an associate company.”, of the following words and figures:-“The first investment, an associate company:
“Provided further that “Where any venture capital company had not made any investment prior to April 1, 2011 for the purchase of ordinary shares in any project referred to in paragraph (a), (b), or (c) of subsection (1), such company shall not be entitled to any tax exemption under this section.”.
I went through both the 2006 Act and the 2008 Amendments, and nowhere could I find in Section 23 the words ‘first investment’ or ‘an associate company’.  It is possible that I was singularly dense, but no one else I consulted could find these either.
The problem was further compounded when we were given Amendments to be moved at the Committee Stage of the Bill. An Amendment was proposed with regard to Clause 13 of the Amendments in the Bill before us, to ‘delete lines from 7 to 11 (both inclusive) and substitute the following: -
by Act No 9 of 2008, is hereby further amended in subsection (1) of that section by the substitution in the further proviso of that subsection, for the words “be three years.”, of the following:-
“be three years:”. 
I think this meant that a full stop was to be changed to a colon. It struck me as bizarre that so much energy should have been spent on this, but more seriously, even if that change was essential, the effect of working through an amendment to an amendment was to leave the section I have highlighted on its own, without the clause to which the original proposed amendment had attached it. 
I have requested that the Legal Draughtsman’s Department be asked what precisely was intended (but this was not done.) …… The solution to all this is very simple, but I suspect we will be told that tradition forbids change. The fact that laws should be easily understood, both by those who pass them, and those who have to use them, will count for little, in comparison with the commitment to an archaic tradition of those who live by interpreting the law.
I wonder though whether the Department understands all this but sees itself as perpetrating a great joke upon the country. I can think of no other explanation, assuming its officials are intelligent people, for the running descriptions now of the content of any Bill. These are meant to help those consulting the Bill to see at a glance what each section is about. But now usually there is just a note that an amendment is being made, which is obvious anyway. 


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