By M.A. Sumanthiran –
Thank you Hon. Presiding member, the minister for Justice, Constitutional affairs and prisons reforms has moved 2nd reading on the bill titled “Recovery of possession of premises” given on lease. More than the bill that he has moved, it is the bill that he did not moved that is of concerned. Nevertheless I just want to say something on the bill that has been moved. In our experience, it is state institutions in the past that have entered into lease agreements with persons who are friendly with the government of the day, and those lease agreements did not have a termination clause; deliberately done. Now no self-respecting lawyer or Notary will not prepare a lease agreement that does not have termination clause, but the UDA did that. And so this is a welcome move, that even if a termination clause is not there it can now, under the law can be terminated for default and so on.
But the bill that he did not move is a bureau of rehabilitation bill. The government seems to have some kind of obsession with this bureau that they want to create. The Supreme Court this time round has made an excellent determination on this bill. I have said this is this house before also in relation to this particular determination. This determination like one other determination in the past that I am aware of the Sri Lanka Broadcasting authority bill, specifically says that his bill as a whole. violates the constitution. Nevertheless since it’s their constitutional duty to specify what provisions need a two thirds majority what provisions need a referendum in addition, and how those can be remedied they have made certain suggestions. And the government although the bill has been looked upon as something obnoxious to the rule of law and constitutionalism, still wants to pursue this. So that’s a concern. Even today the minister did not withdraw the bill. The minister, only put it off and has said that they’ll take certain concerns before finalising this bill. Now one of the important concerns we have is as to who constitutes this bureau? It can’t be the military, if you want to rehabilitate drug dependence I don’t understand what the military or security officials have to do with that. It has to be experts in that area and it’s not an easy task to rehabilitate drug dependence.
The Supreme Court has very specifically struck down different categories of persons to be subjected to this and said for drug dependence it can or any other person identified by law, meaning that such a person today should have been identified by law. Not for in committee stage amendments to say drug dependence or any other persons to be identified by law, that is keeping the whole field open, which is what you wanted to do in the first place , which is what has been disallowed by court. Therefore the constitutionality of that phrase is a serious question. I say that it cannot be enacted in that way, that will violate the caution expressed by the Supreme Court.
There is another fundamental issue that I want to address to the minister. When a person is deprived of his personal liberty that must happen only after a judicial pronouncement. Now this is a departure from that note. Here we are envisaging a situation where without court finding a person guilty of certain things that that person can be incarcerated, I am using that word advisedly because he has been deprived of his personal liberty, there are provisions in the bill that says that if he runs away you can catch him and bring him back. The one important fundamental in a drug rehab programme is the voluntariness of the person. That the person must want to be rehabilitated, you can’t force it down his throat. So, in addition to a judicial pronouncement in a matter where drug dependency is concerned we must also have a medical opinion. Both those conditions attached then you can set up a rehabilitation centre but it must be administered run by experts in that field, not security experts.
*M.A. Sumanthiran MP’s Speech in Parliament on 05th January 2023