Bureau of Rehabilitation: Supreme Court says bill is inconsistent with Constitution
Sri Lanka's Supreme Court has determined that the 'Bureau of Rehabilitation' bill as a whole is inconsistent with Article 12(1) of the Constitution and as such may be enacted only by the special majority required by Article 84(2) of the Constitution.
However, However, this inconsistency shall cease if:
(i) All references to “ex-combatants,” “violent extreme groups” and “any other group of persons” are deleted from the Bill;
(ii) The Bill is limited to the rehabilitation of drug dependent persons and such other persons as may be identified by law.
Parliament Speaker Mahinda Yapa Abeywardena announced the Supreme Court's determination on Thursday (20) to parliament.
The complete determination is as follows:
I wish to announce to Parliament that I have received the Determination of the Supreme Court in respect of the Bill titled “BUREAU OF REHABILITATION” which was challenged in the Supreme Court in terms of Article 121(1)of the Constitution.
On an overall consideration of the provisions of the Bill, the Supreme Court has made the following Determination:—
A. The Bill as a whole is inconsistent with Article 12(1) of the Constitution and as such may be enacted only by the special majority required by Article 84(2) of the Constitution.
However, this inconsistency shall cease if:
(i) All references to “ex-combatants,” “violent extreme groups” and “any other group of persons” are deleted from the Bill;
(ii) The Bill is limited to the rehabilitation of drug dependent persons and such other persons as may be identified 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 inconsistent with Article 12(1) of the Constitution and as such may be enacted only by the special majority required by Article 84(2) of the Constitution.
However, the said inconsistencies shall cease if the said Clauses are amended as follows:—
Clause 3 – "The objective of the Bureau shall be to rehabilitate drug dependant persons or any other person as may be identified by law as a person who requires rehabilitation and which may include treatment and adoption of various therapies in order to ensure effective reintegration and reconciliation, through developing socio-economic standards."
Clause 4(a) – "Provide treatment and rehabilitation to drug dependent persons who in terms of the Drug Dependent Persons (Treatment and Rehabilitation) Act, No. 54 of 2007 request treatment and rehabilitation or are required by such law to be provided with treatment and rehabilitation."
Clause 4(b) – "provide rehabilitation to any person who in terms of a relevant law, requests rehabilitation or is required by such law to be provided with rehabilitation;"
Clause 4 – by the insertion of the following new paragraph (e) – "advice the Minister with regard to programmes for rehabilitation, treatment and aftercare having regard to the basic norms of Human Rights."
Clause 6(b) – "the following five members (hereinafter referred to as "appointed members") be appointed by the Minister:— (i) two persons who shall possess academic and professional qualifications and have
experience in the field of rehabilitation; (ii) two persons who shall possess academic and professional qualifications and have experience in the field of social integration; and
(iii) one person who shall possess academic and professional qualifications and have experience in the field of law and order.”
Clause 23 – by the deletion of the words, "ex-combatants, members of violent extremist groups, violent extremist person and any other person or group of persons" and this Clause being suitably amended to reflect the position that only the rehabilitation of drug dependant persons and such persons who are identified by law and whose rehabilitation is provided for by law will take place at a centre managed by the Bureau.
Clause 23 – by the insertion of new sub-clauses numbered as Clauses 23(2) to 23(7) as proposed by the Attorney-General and referred to at pages 36 and 37 of the Determination, subject to the
following:—
(i) Clause 23(3)(a) – by the insertion of the words, "and may examine the records and log books maintained at the Centre" at the end of this paragraph.
(ii) Clause 23(5) – by the addition of 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" at the end of this Clause.
Clause 24 – by the insertion of the words, "as may be prescribed" after the words, "or any unauthorised article."
Clause 25(2) – by the insertion of Clause 25(2) as proposed by the Attorney-General and referred to at page 40 of the Determination, and subject to the following:—
(i) the addition of the words, "or an Attorney-atLaw representing such person" at the end of Clause 25(2)(a), and in the proviso to Clause 25(2) after the words in parentheses;
(ii) the deletion of the words, "within a Centre for Rehabilitation" at the end of Clause 25(2)(b). Clause 27 – by the insertion of the words, "unlawfully" and "lawful" as proposed by the Attorney-General and referred to at page 44 of the Determination.
Clause 28(1) – by the deletion of the words, "any authorised member of the Forces," and the insertion of the word, "immediately" as proposed by the Attorney-General and referred to at page 45 of the Determination.
Clause 28 – by the insertion of the following new paragraph proposed by the Attorney-General – "It shall be the duty of the CommissionerGeneral of Rehabilitation, or a person duly authorised by him to immediately inform 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 – by the insertion of the following proviso at the end of Clause 34(1) – “Provided that the Council shall not have the power to make rules in respect of any matter in which regulations are required to be made in terms of this Act.”
Clause 35 – should be amended in the manner referred to at pages 29 and 30 of the Determination.
Clause 37 – “ ‘rehabilitation’ means the procedures and programmes for rehabilitation, treatment, aftercare and support that shall be prescribed by regulations made under this Act.”
C. Clause 17 of the Bill is inconsistent with Article 12(1) of the Constitution and as such may be enacted only by the special majority required by Article 84(2) of the Constitution.
D. Clause 25(1) of the Bill is inconsistent with Article 14A of the Constitution and as such may be enacted only by the special majority required by Article 84(2) of the Constitution.
However, the said inconsistency shall cease if Clause 25(1) is amended by the addition of the words, “or the provisions of the Right to Information Act” at the end of the said Clause.
E. Clause 26 and 28(2) of the Bill are inconsistent 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 upon being approved by the People at a Referendum as stipulated by Article 83 of the Constitution.
The said inconsistencies shall cease if:
(i) the words, “without reasonable cause” in Clause 26 are deleted;
(ii) the words, “all such means including” in Clause 28(2) are deleted.
F. Clause 29 of the Bill is inconsistent with Article 76 read together 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 upon being approved by the People at a Referendum as stipulated by the Article 83 of the Constitution.
The said inconsistency shall cease if Clause 29 is amended by the deletion of the words, “or any rule”
I order that the Determination of the Supreme Court be printed in the Official Report of today’s proceedings of the House.