The Supreme Court of Sri Lanka has ruled that the ‘Bureau of Rehabilitation’ bill as a whole is in conflict with Article 12(1) of the Constitution and, as such, can only be passed with the special majority required by Article 84(2) of the Constitution.
However, this inconsistency will end if and only if:
I The Bill is amended to remove all references to “ex-combatants,” “violent extreme groups,” and “any other group of persons.”
(ii) The Bill is limited to the rehabilitation of drug addicts and other individuals as defined by law.
On Thursday (20), Parliament Speaker Mahinda Yapa Abeywardena announced the Supreme Court’s decision.
The final decision is as follows:
I am pleased to inform Parliament that I have received the Supreme Court’s Determination in relation to the Bill titled “BUREAU OF REHABILITATION,” which was challenged in the Supreme Court under Article 121(1) of the Constitution.
Following an overall review of the Bill’s provisions, the Supreme Court issued the following decision:
A. Because the Bill as a whole violates Article 12(1) of the Constitution, it can only be passed with the special majority required by Article 84(2) of the Constitution.
This inconsistency, however, will end if:
I The Bill is amended to remove all references to “ex-combatants,” “violent extreme groups,” and “any other group of persons.”
(ii) The Bill is limited to the rehabilitation of drug addicts and other individuals as defined by law.
B. Clauses 3, 4(a), 4(b), 6(b), 23, 24, 25(2), 27, 28(1), 34, 35, and 37 [the definition of “rehabilitation”] of the Bill are in conflict with Article 12(1) of the Constitution and may therefore be enacted only by the special majority required by Article 84(2) of the Constitution.
However, the aforementioned inconsistencies will be eliminated if the aforementioned Clauses are amended as follows:
Clause 3 – “The Bureau’s objective shall be to rehabilitate drug-addicted persons or any other person identified by law as requiring rehabilitation, which may include treatment and the adoption of various therapies in order to ensure effective reintegration and reconciliation, through the development of socioeconomic standards.”
“Provide treatment and rehabilitation to drug dependent persons who, in accordance with the Drug Dependent Persons (Treatment and Rehabilitation) Act, No. 54 of 2007, request treatment and rehabilitation or are required by such law to receive treatment and rehabilitation,” says Clause 4(a).
Clause 4(b) states that “any person who, in accordance with a relevant law, requests rehabilitation or is required by such law to receive rehabilitation;”
Clause 4 is amended by inserting the following new paragraph (e): “advise the Minister on programmes for rehabilitation, treatment, and aftercare in accordance with the basic norms of Human Rights.”
Clause 6(b) – “the Minister shall appoint the following five members (hereinafter referred to as “appointed members”):— I two persons who shall possess academic and professional qualifications and have
experience in the field of rehabilitation; and (ii) two people with academic and professional qualifications as well as experience in the field of social integration.
(iii) one person with academic and professional qualifications as well as experience in law and order.”
Clause 23 – by deleting the words “ex-combatants, members of violent extremist groups, violent extremist person, and any other person or group of persons,” and by suitably amending this Clause to reflect the position that only drug-dependent persons and such persons who are identified by law and whose rehabilitation is provided for by law will be rehabilitated at a centre managed by the Bureau.
Clause 23 – by inserting new subclauses numbered 23(2) to 23(7), as proposed by the Attorney-General and referred to on pages 36 and 37 of the Determination, subject to the
following:—
I Clause 23(3)(a) – by inserting at the end of this paragraph the words “and may examine the records and log books maintained at the Centre.”
(ii) At the end of Clause 23(5), add the words “including an order that such person be immediately admitted to a Government Hospital for medical treatment and that the Officer-in-Charge of such Centre immediately inform the Court that made the order for the rehabilitation of such person of the findings of the Government Medical Officer.”
Clause 24 is amended by inserting “as may be prescribed” after “or any unauthorised article.”
Clause 25(2) – by inserting Clause 25(2) as proposed by the Attorney-General and referred to on page 40 of the Determination, subject to the following conditions:
I the addition of the words “or an Attorney-at-Law representing such person” at the end of Clause 25(2)(a) and after the words in parentheses in the proviso to Clause 25(2);
(ii) the deletion of the words “within a Rehabilitation Centre” at the end of Clause 25(2). (b). Clause 27 – by inserting the words “illegally” and “lawfully,” as proposed by the Attorney-General and referenced on page 44 of the Determination.
Clause 28(1) – by striking out “any authorised member of the Forces” and inserting “immediately,” as proposed by the Attorney-General and referred to on page 45 of the Determination.
Clause 28 – the Attorney-General proposes inserting the following new paragraph: “It shall be the duty of the CommissionerGeneral of Rehabilitation, or a person duly authorised by him, to immediately notify the Magistrate within the Judicial Division in which such Centre is located of any exercise of powers under Section 28(1) and (2).”
Clause 34 was amended by inserting the following proviso at the end of Clause 34(1): “Provided that the Council shall not have the power to make rules in relation to any matter in respect of which regulations are required to be made under this Act.”
Clause 35 – should be amended as described on pages 29 and 30 of the Determination.
“‘rehabilitation’ means the procedures and programmes for rehabilitation, treatment, aftercare, and support that shall be prescribed by regulations made under this Act,” says Clause 37.
C. Clause 17 of the Bill is in conflict with Article 12(1) of the Constitution, and as such, it may only be enacted with the special majority required by Article 84(2) of the Constitution.
D. Clause 25(1) of the Bill is in conflict with Article 14A of the Constitution, and as such, it may only be enacted with the special majority required by Article 84(2) of the Constitution.
The said inconsistency, however, will be resolved if Clause 25(1) is amended by adding the words “or the provisions of the Right to Information Act” at the end of the said Clause.
E. Clauses 26 and 28(2) of the Bill are in conflict with Article 11 of the Constitution and, as such, may be enacted only by the special majority required by Article 84(2) of the Constitution and after being approved by the People in a Referendum as specified by Article 83 of the Constitution.
If the following conditions are met:
I in Clause 26, the words “without reasonable cause” are deleted;
(ii) in Clause 28(2), the words “all such means including” are deleted.
F. Clause 29 of the Bill is in conflict with Article 76 read in conjunction with Articles 3 and 4 of the Constitution and, as such, may be enacted only by the special majority required by Article 84(2) of the Constitution and after approval by the People in a Referendum as stipulated by Article 83 of the Constitution.
The inconsistency will be resolved if Clause 29 is amended by removing the words “or any rule.”
I direct that the Supreme Court’s decision be printed in the Official Report of today’s House proceedings.