SC determination on Tsunami Bill on Monday

by Wasantha Ramanayake

The Tsunami (Special Provisions) Bill would be determined for its Constitutionality before the Supreme Court on Monday (25).

Petitioners Hasanthi Rathnayake, Attorney-at-Law, Coordinator, Children's Desk, Lawyers for Human Rights and Development and Citizens Trust in separate applications to the court had cited the Attorney General as the respondent.

The petitioners stated that the one month period prescribed in the clause two of the Bill was too short to presume a death to arise and may result in living person being wrongfully declared as dead and thereby deprived of all of their constitutional rights.

They claimed that such a provision was anyway useless since more than three months had already elapsed after the tsunami.

They stated that the time period could not be justified in the case of the missing child although it could be so justified in the case of missing parents for the purpose of enabling the legal estate to be used for the maintenance of their orphaned children.

The petitioners claimed that the purpose of the Bill titled Tsunami (Special Provisions) which had been presented to Parliament on April 5, among the other matters, to ensure children and young persons who had been left without adequate parental care due to the tsunami would receive alternative care and protection.

The petitioners alleged that the definition of child and youth in Clause 27 of the Bill was different that from the definitions in the Children and Young Persons Ordinance (CYPO) and that would lead to confusion.

They alleged that the same category children coming before the courts i.e. the District Courts and Juvenile Courts under the different Acts would be treated differently, resulting in the denial of the equal treatment and protection of the law would violate Article 12(1) of the Constitution.

They also contended that the Fundamental Rights and freedoms of the young persons who were infact adults (persons over 18 years of age) may be unnecessarily curtailed.

The petitioners stated that Clause (9) 2 read with 9(1) of the Bill would cause grave injuries to the members of the extended families who might have provided the shelter and care to the children in their custody whose parents were affected by the tsunami exposing them to the risk of being prosecuted and punished for no offence committed by them.

They argued that this would lead to arbitrary consequences and would be a violation of Article 12(1) of the Constitution.

They stated that the certain clauses of the Bill was inconsistent with the 13 Amendment of the Constitution to the extent they sought to encroach upon the powers of the Commissioner of Probation and Child Care Service.

They alleged that Part 2 of the Bill would remove all decision making powers exercised by the Magistrates and the officers of the Department and of Child Care Services in relation to the children who had lost their parents and their powers were sought to be vested in a provincial body named "Foster Care Evaluation Panel."

They argued that the panel could act arbitrarily in taking decisions. They sought to declare the Bill to be inconsistent with the Constitution.