DECISIONS OF THE SUPREME COURT ON PARLIAMENTARY BILLS 2016 - 2017 VOLUME XIII Published by the Parliament Secretariat, Sri Jayewardenepura Kotte July - 2018 PRINTED AT THE DEPARTMENT OF GOVERNMENT PRINTING, SRI LANKA. Price : Rs. 430.00 Postage : Rs. 90.00 DECISIONS OF THE SUPREME COURT OF THE REPUBLIC OF SRI LANKA UNDER ARTICLES 120 AND 121 OF THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA FOR THE YEARS 2016 AND 2017 i ii 2 - PL 10561 - 200 (2017/12) CONTENTS Title of the Bill Page No. 2016 Theravadi Bhikku Kathikawath (Registration) 07 Local Authorities Elections (Amendment) 16 Microfinance 20 Buddhist Temporalities (Amendment) 25 Budgetary Relief Allowance of Workers 31 National Minimum Wage of Workers 35 Right to Information 38 Homoeopathy 51 Fiscal Management (Responsibility) (Amendment) 53 Value Added Tax (Amendment) 57 Nation Building Tax (Amendment) 65 Engineering Council, Sri Lanka 69 Value Added Tax (Amendment) 76 2017 Foreign Exchange 88 Registration of Electors (Special Provisions) 97 Code of Criminal Procedure (Special Provisions) (Amendment) 103 Inland Revenue 105 Provincial Councils Elections (Amendment) 124 Twentieth Amendment to the Constitution 126 Provincial Councils Elections (Amendment) 138 iii DECISIONS OF THE SUPREME COURT ON PARLIAMENTARY BILLS 2016 (2) D I G E S T Subject Determination Page No. No. Theravadi Bhikku Kathikawath 0 1 / 2 0 1 6 , 07 -15 (Registration) 02/2016 and 07/2016 to provide for the formulation and registration of Kathikawath in relation to Nikaya or Chapters of Theravadi Bhikkus in Sri Lanka; to provide for every Bhikku to act in compliance with the provisions of the Registered Kathikawath of the Nikaya or Chapter which relates to such Bhikku; to impose punishment on Bhikkus who act in violation of the provisions of any Registered Kathikawath, and for matters connected therewith or incidental thereto. - referred to the Supreme Court under Article 121 (1). determined that Clauses 2 (2), 2 (3), 2 (4) and 11(2) are inconsistent with Articles 9, 10, and 14 (1) (e) of the Constitution, Clauses 4, 5 and 13 (1) are inconsistent with Article 9 of the Constitution and Clause 12 is inconsistent with Articles 9, 10, 12 and 14 (1) (e) of the Constitution and could only be passed with a special majority prescribed in Article 83 of the Constitution and approved by the people at a Referendum. The Court further stated that the inconsistency of the above Clauses would cease if amended, as follows:- (a) by deleting Clauses 2 (3), 2 (4), 4 and 5; and (b) by amending Clauses 2 (2), 11(2) and Clause 13 (1) as suggested in the determination. Subject to foregoing the other provisions of the Bill are not inconsistent with the Constitution. Local Authorities Elections (Amendment) 03/2016 and 16 -19 04/2016 to amend the Local Authorities Elections Ordinance (Chapter 262) - referred to the Supreme Court under Article 121 (1). determined that the Clause 4 of the Bill is inconsistent with Article 12 (1) of the Constitution and the inconsistency would cease if Clause 4 be amended as suggested by the Court. The Court further determined that the other provisions of the Bill are not inconsistent with the Constitution and inconsistency between the Sinhala text and the English text in Clause 2 could be corrected at the Committee stage of the Bill. 1 Digest of the Divisions of the Supreme Court on Parliamentary Bills (4) Subject Determination Page No. No. Microfinance 20 -24 to provide for the licensing, regulation and supervision 05/2016, of companies carrying on microfinance business; the 06/2016 and registration of non-governmental organizations 08/2016 accepting limited savings deposits as microfinance non-governmental organizations; for the setting up of standards for the regulation and supervision of microfinance non-governmental organizations and micro credit non-governmental organizations and to provide for matters connected therewith or incidental thereto. - referred to the Supreme Court under Article 121 (1). determined that none of the functions stated in Clause 9 (1), 9 (3) and 11(b) of the said Bill fall within the ambit of the said Provincial Council List and the provisions of the Bill are not inconsistent with the Constitution. Buddhist Temporalities (Amendment) 09/2016 to 25 -30 18/2016 to amend Buddhist Temporalities Ordinance. (Chapter 318) - referred to the Supreme Court under Article 121 (1). determined that the Clauses which are inconsistent with Articles of the Constitution would cease to exist if amended or deleted as undertaken by the State and the Attorney-General and the Bill may be passed by Parliament by a simple majority. Budgetary Relief Allowance of Workers 19/2016 31 -34 to provide for the payment of a Budgetary Relief Allowance by employers to workers and for matters connected therewith or incidental thereto. - referred to the Supreme Court under Article 121 (1). determined that the Court has no jurisdiction to proceed further with the petition, as the jurisdiction of the court has not been duly invoked because the petitioners have failed to satisfy the requirement that not less than three fourth of the members of the petitioners' union are Citizens of Sri Lanka. 2 Digest of the Dicisions of the Supreme Court on Parliamentary Bills Subject Determination Page No. No. National Minimum Wage of Workers 20/2016 35 - 37 to provide for the payment of National Minimum Wage by employers to workers and for matters connected therewith or incidental thereto. - referred to the Supreme Court under Article 121 (1). determined that the Court has no jurisdiction to proceed further with the petition, as the jurisdiction of the court has not been duly invoked because the petitioners have failed to satisfy the requirement that not less than three fourth of the members of the petitioners' union are Citizens of Sri Lanka. Right to Information 22/2016 38 - 50 to provide for the Right of Access to Information; to specify to grounds on which access may be denied; to establish the 25/2016 Right to Informaton Commission; to appoint Information Officers; to set out the procedure and for matters connected therewith or incidental thereto. - referred to the Supreme Court under Article 121 (1). determined that the Clause 5 (1) (j) violates Articles 3, 4, 12 (1) and 14A (2) of the Constitution, Clause 9 (2) (a) violates Articles 3, 4, 12 (1) and 14 of the Constitution, Clauses 19 violates Articles 3,4,12 (1) and 55 of the Constitution and Clauses 43 (j) and 43 (k) violate Articles 3, 4 and 14A of the Constitution and may only be passed by the special majority required under the provisions of Article 84 (2) of the Constitution, in its present form. The Supreme Court further determined that the inconsistencies will cease to operate, and the Bill may be passed by a simple majority, if amendments are made to the aforesaid clauses as directed by the Supreme Court. Homoeopathy 27/2016 51 - 52 to provide for the establishment of a Homoeopathic Medical Council; for the registration of Homoeopathic Practitioners and Homoeopathic Pharmacists; for the registration and regulation of Homoeopathic Institutions; to Promote, foster and regulate the Homoeopathic system of medicine and for the regulation and control of the manufacture, importation, storage, sale and distribution of Homoeopathic medicine, drugs and other Homoeopathic preparations; to repeal the Homoeopathy Act, No. 7 of 1970 and to make provisions for matters connected therewith or incidental thereto. - referred to the Supreme Court under Article 121 (1). 3 Digest of the Dicisions of the Supreme Court on Parliamentary Bills Subject Determination Page No. No. decided to reject the petition since the petitioners have failed to file the petition within the time period stipulated in Article 121(1) of the Constitution and decided not to proceed to make a "determination". Fiscal Management (Responsibility) 28/2016 & 53 - 56 (Amendment) 29/2016 to amend the Fiscal Management (Responsibility) Act, No. 3 of 2003 - referred to the Supreme Court under Article 121 (1). determined that neither the Bill as whole nor any of its provisions is inconsistent with the Constitution. Value Added Tax (Amendment) 30/2016 to 57 - 64 33/2016 to amend the Value Added Tax Act, No. 14 of 2002. - referred to the Supreme Court under Article 121 (1). determined that the provisions contained in Article 152 of the Constitution and Standing Order 133 are imperative in character and the failure to follow them render the subsequent proceedings nullity. Since the due process had not been complied with in terms of Articles 78 (2) and 152 in the Constituion before the Bill was introduced in Parliament, the Supreme Court has made in terms of Articles 120 and 121 read with Article 123 and 152 of the Constitution, that no determination would be made at this stage on the ground of challenge raised by the petitioners. 65 - 68 Nation Building Tax (Amendment) 34/2016 to amend the Nation Building Tax Act, No. 9 of 2009. - referred to the Supreme Court under Article 121 (1). determined that neither the Bill as a whole nor any of its provisions thereof is inconsistent with the Constitution. Engineering Council, Sri Lanka 35/2016 69 - 80 to provide for the establishment of the Engineering Council, Sri Lanka which shall be responsible for the maintenance of professional standards and conduct of engineering practitioners; registration of different categories of engineering practitioners; and to provide for matters connected therewith or incidental thereto. 4 Digest of the Dicisions of the Supreme Court on Parliamentary Bills Subject Determination Page No. No. - referred to the Supreme Court under Article 121 (1). determined that, (i) The omission to nominate Engineering Technicians in the Council under Clause 3 (b) is inconsistent with Article 12 (1) of the Constitution.