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Legislative law and process
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Parliament is responsible for national legislation. Today, it is the most important source of law. There is hardly any government activity conducted at the national, provincial or local level without legislation. It covers areas such as welfare, commerce, communication, human rights, environment, insurance, income tax, foreign investments, health, employment, housing and a myriad of important areas in a rapidly changing world.
Parliament is also responsible to give legislative effect to multilateral treaties to which Sri Lanka has become a state-party. It has enacted many implementing legislation, but there is a long delay in the implementation of multilateral treaties relating to illicit trafficking in narcotic drugs, money laundering, anti-corruption measures, refugees, humanitarian treaties in comparison to many Commonwealth countries.
In the UK and other Commonwealth Parliaments, there is a parliamentary practice by which a treaty is laid before Parliament for twenty one days, prior to their ratification/accession by the Executive. This practice was initiated by the Under-Secretary of State Arthur Ponsonby (1924) and recognised by Erskine May, in order to establish "open government" in foreign affairs. This practice has not been followed consistently in Sri Lanka, but it is necessary to revive it in appropriate circumstances, to enhance the representational role of Parliament in foreign affairs.
Legislative law and process are of paramount importance to legal practitioners, civil servants, parliamentarians and ordinary citizens.
Unfortunately, it is not an area in which there is public debate or comprehensive teaching of this subject at the Sri Lanka Law College or any university in Sri Lanka. To modernise Parliament, it is necessary to look at the state of the legislative law and legislative process in Sri Lanka in a comparative manner.
Legislative law
At the outset, it is useful to define the term "legislative law". It consists of primary and delegated legislation. Primary legislation constitutes Acts of Parliament and perhaps statutes made by Provincial Councils. Delegated legislation constitutes regulations, rules, order, by-laws made under primary legislation.
In terms of volume, delegated legislation, now exceed primary legislation.
As far back as 1921, Sir Cecil Carr described this phenomenon in the following manner - "In mere bulk the child now dwarfs the parent". In Sri Lanka, it is easier to find a needle in a haystack than finding a piece of delegated legislation made under an Act of Parliament.
Unfortunately, legislative oversight is poor in regard to delegated legislation, although there is a requirement in some Parliamentary Acts to lay the delegated legislation in Parliament and adopt the same by way of an affirmative resolution prior to their enforcement.
It is therefore useful to establish a Parliamentary Committee on subordinate legislation, as in other Parliaments, to enhance its legislative oversight. In his day, one of our great constitutional experts, late Joseph A. Cooray advocated the establishment of such a committee to improve the oversight of Parliament.
The Statute Book contains the legislative law in a logical order. In many countries, there is a trend to move away from bound-editions to loose-leaf-editions to make legislative law user-friendly. In some countries the Statute Book is computerized and the amendments made to legislative law are reflected in the computer screen immediately after their enactment.
It is said that the state of the country can be judged by the state of the Statute Book. In Sri Lanka, the Statute Book has not been revised for the last fifty years due to some difficulties arising from the 1972/1978 constitutions and therefore it is not unreasonable to say that our legislative law is in a pathetic state, although many of my former colleagues at the Legal Draftsman's Department were responsible for impeccable revised editions in many parts of the world.
Legislative process
The term "legislative process" has wider connotations than the term "parliamentary process". It includes pre-parliamentary and parliamentary processes. This process deals with major issues and problems confronting a state. It is dominated by the Government, although various professional bodies and individuals contribute to the process indirectly. In his inaugural address to the Organization of Professional Associations (OPA), late H.W. Jayewardene, Q.C. spoke of the importance of the professions to the legislative process.
The legislative process can be divided into (a) Pre-Parliamentary Process, and (b) Parliamentary Process
Pre-Parliamentary process
The Pre-Parliamentary process involves the preparation of legislation on the basis of Government Policy, Cabinet Memorandum, election pledge or a commission report. It can be divided into preparatory stage and drafting stage. Lord Thring, Ilbert Hutton, Reed Dickerson, Grad, Thornton and many other practitioners of this arcane art have emphasized that the preparatory stage is more important than the drafting stage, as important decisions are made at this stage.
In the preparatory stage, legislative drafters employed by the government hold consultations with the relevant government departments and engage in legal and practical research for the preparation of legislation. Sir Granville Ram said, "A Bill is forged on the anvil of the draftsman's table while politicians and civil servants swing their heavy sledges". In this context, a legislative drafter gets involved in policy issues and provides Ministers and civil servants their expert knowledge with respect to institutions, structures and the law in an interdisciplinary manner.
In the drafting stage, the design, composition and scrutiny are of utmost importance. In drafting a new law, the design of the legislation contains a long title, short title, interpretative section, substantive and administrative provision, savings, transitional and repeals.
However, this design may differ from one Bill to another depending on the contents of the Bill. In the case of an amending Act, the design varies considerably. At all times a legislative drafter uses the constitution and the Interpretation Act in the same way as an engineer uses the slide rule or the sailor uses the compass to navigate a ship in tempestuous waters. In this field, as Tacitus said no one becomes an expert suddenly - Nemo repente turpisimus fuit.
Parliamentary Drafters provide a unique service to the State. These persons are generally not seen and never heard in the legal world in a flamboyant manner. Nonetheless, they have interpretative skills and abilities to visualize the application of the law prospectively when most lawyers look at the law in a retrospective manner.
In the past, they were recognized for their services and skills and were elevated to the Supreme Court. The former Chief Justice, late H.N.G. Fernando, who hailed from the Legal Draftsman's Department, contributed immensely to our jurisprudence.
In recent times, there have been reforms in regard to preparation and drafting of legislation. There is a trend to seek outside views prior to preparation of legislation by way of "green" and "white" papers, as public participation in the legislative process is of fundamental importance. In addition, Governments provide "exposure" draft Bills for public comments.
In the UK, there is a trend to change the style of drafting. Sir William Dale has criticized the style of UK drafting in his book titled "Legislative Drafting - New Approach" by stating that the legislative language has - (a) long sentences, (b) too much detail, (c) indirect approach to subject matter, and (d) poor arrangement. The UK Parliament appointed the Renton Committee to report on the preparation and drafting of legislation in a manner more easily accessible to its users.
It made 121 recommendations. Similarly, there is a shift towards the use of plain language in legislation. In Sri Lanka, there is a great need to introduce "bi-lingualism" in the preparation and drafting of legislation, as Trudeau did for Canada in order to comply with the spirit and letter of the 1972 and 1978 Constitutions.
(b) Parliamentary Process
The Parliamentary Process is regulated primarily by the constitution. It underwent changes by the 1972 and 1978 constitutions. The 1972 constitution changed the language of legislation in to Sinhala with a Tamil translation and the use of English was deleted in an unrealistic manner.
It also abolished judicial review of legislation and established a Constitutional Court to review legislation vis-a-vis the constitution prior to the Parliamentary Process. The 1978 constitution modified these changes in a realistic manner.
Parliamentary process is also regulated by Standing Orders. Any gaps in the Standing Orders are generally filled by reference to the immortal works of Erskine May, and Kaul and Shakader on Parliamentary Practice and Procedure. On the other side of the Atlantic, Jeffersons Manual regulates Congressional procedure.
Recently, I had the privilege of accompanying the Speaker of Parliament, W.J.M. Lokubandara to the Parliaments in Austria and Hungary where I found several committees are established to promote consensus for the legislative programme. Although Sri Lanka has changed to proportional representation, it did not change the parliamentary process in line with countries that have adopted the PR system.
Parliamentary process is the legitimating stage of the legislative process.
It begins when the Bill is published in the Gazette and by listing it after a lapse of one week in the Order Paper of Parliament. Unless a Bill is challenged within one week as vis-a-vis the constitution, the parliamentary process is not delayed for three weeks.
The first reading takes place when the Minister in charge of the Bill presents it to Parliament. In the case of urgent Bills, judicial review by the Supreme Court takes place after the gazetting of the Bill and there is no further delay. The second reading of the Bill is the most important aspect of the parliamentary process.
The merits and demerits of a draft Bill are debated by the Government and the Opposition at this stage. At this stage, as Erskine May said, the whole principle is at issue and the Bill is affirmed or denied by a vote of the House without discussing in detail its several clauses.
At the end of the second reading, the Bill is referred to a Standing Committee or to a Committee of the whole House to scrutinize the Bill clause by clause. At this stage, amendments could be moved to the Bill in terms of the Standing Orders.
The scope of committee stage amendments is controversial in many Parliaments. In the recent Rehabilitation of Public Enterprises (Amendment) Bill (1996), the committee stage amendments to restrict the application of the Act to particular enterprises with retrospective effect was opposed for constitutional reasons. Since judicial review of legislation in Sri Lanka is not possible after the enactment of a Bill, it is necessary to ensure that committee stage amendments do not conflict with the constitution.
A Bill which has been considered by the committee goes into the third reading. At the report stage, further amendments may be moved. After the third reading, the certificate of the Speaker is annexed to the Bill, so that the Bill will become an Act of Parliament.
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