The case of the Expropriation Bill
President Barack Obama has a new slogan - ‘We Can’t Wait’. Delayed by a divided Congress, he has resorted to issuing executive orders to get things moving. Although not having such difficulties in Parliament, President Rajapaksa’s government is in an equal hurry. Thus certain legislative proposals are being pushed through Parliament as ‘urgent bills’. Around a year ago, the 18th Amendment to the Constitution was presented as an urgent bill. The latest is the Expropriation Act previously known as the ‘Revival of Underperforming Enterprises and Underutilized Assets Bill’.
Apart from the sloppy drafting the opponents of the Act have trotted out the usual suspects of abuse of power, political victimization and unconstitutionality. Whilst all these are serious and need examination, the Act is reflective of a broader problem that ails democratic governance in general and Sri Lanka in particular and that is, not everything can be decided by a vote.
Whether it be deciding on a family holiday, activities of a social club or even governing a country, there are several reasons why we adopt a system of voting and pick the choices backed by a majority. For one thing, everyone feels consulted and no one feels left out and in any case, if most of us agreed on something – it probably was the best option after all.
However this is not always the case. Democracies are known for making bad choices. Laws have been passed for example against women – when they were a weak and voiceless minority, against political opponents of the majority and most notoriously against ethnic and racial minorities. The Sinhala Only Act was a product of an elected legislature with the backing of a majority of the voters.
So majority decision making needs a braking system. Something that tells them – wait, think again, do you really want to do this? This is where, of the three arms of government, the unelected one – the judiciary plays a critical role. For example, when White majorities oppressed Black minorities, the judges of the US Supreme Court in Brown v Board of Education ruled that laws that promoted racial segregation were unconstitutional. Similarly the Indian Supreme Court has contributed towards making Indian society more equal through their judgments attacking the caste system, bonded labour and gender equality amongst a host of other issues.
In taking on this role, the judges are not acting ‘anti-democratically’ but are furthering it. When judges act to ensure media and political freedom, free elections, gender and ethnic equality etc they are enlightening majorities, creating a climate for effective debate, establishing an environment where people converse with respect and as equals. Thereby judges contribute towards strong, inclusive and vibrant societies.
In the present political context, a strong Executive President with absolute control of Parliament, the important role played by the judges of the Superior Courts of Sri Lanka cannot be overstated. It is in this regard that the opinion of the Supreme Court with regard to the Expropriation Act was a disappointment. No doubt the opinion of the Supreme Court demands great deference and respect. Yet article 12 (1) of the Constitution demands that equals be treated alike. Then when a law singles out a specific enterprise and certain specified assets leaving out others of a similar nature, there is a prima facie violation of Article 12(1). At a cursory glance another underperforming enterprise is Mihin Lanka. On the day the Expropriation Bill was passed, Parliament was informed that the Government had pumped over Rs 10,000 Million between 2007 and 2010 into Mihin Lanka despite colossal losses. If the principle of equality were to apply, the Act ought to apply to Mihin as much as it applies to Hilton. After all under Article 123(3) all that the judges need is to have ‘a doubt’ about constitutionality and in such case they are entitled to declare that the bill is inconsistent with the Constitution.
If the court had ruled that the bill did threaten the rights of citizens several possible scenarios could have played out. In the very least the judges would have made the Government pause and reflect on their course of action. The Government could have either considered the views and concerns of the judges re-drafted and re-submitted the bill or forged ahead and passed it using its special majority in Parliament. If the Government had taken the first option, then we would have seen a better considered bill. If on the other hand they chose the second option then the Government would have been put under pressure to explain itself in very clear terms as to why the law is needed. Both scenarios help the quality of democracy and decision making in the country. On other hand what we do have is a scenario where people feel that their rights have been violated, a wrong policy adopted, yet the powers that be seem unconcerned – nothing like how a democracy should feel like.
(The writer is an Attorney-at-Law and a PhD Candidate at University College London)
NISHTHAR IDROOS Tuesday, 15 November 2011 12:50
I’ve stated in your columns before, inducing or improving better performance to underperforming entities is a good thing as overall benefits accrues to the nation. This is certainly based on the assumption there is no male-fide intentions or apparent attempts to victimize political opponents. It’s unfortunate the entire conception and execution of the legalizing process was conducted in haste and woven with an element of surreptitiousness. This has certainly boomeranged with negative sentiments emanating from business quarters and importantly from international investors. This is a very unfortunate development for a nascent economy like Sri Lanka greatly needing a major infusion of capital in terms of FDI.
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