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Reparations Bill: SC finds 2 clauses unconstitutional
The Supreme Court (SC) has shot down two clauses in the Office for Reparations (OFR) Bill on the grounds that these vest judicial powers in the OFR. The Government intends to set up the OFR to provide reparations including monetary payment or material benefits to aggrieved persons.
The SC determination on the Constitutionality of the Bill was announced in Parliament by Speaker Karu Jayasuriya on Tuesday. The SC ruled that the Bill in its present form can become Law only if it is passed with a two-thirds majority (including those not present) in Parliament and is approved by the people at a referendum or, be amended as per the SC’s recommendations, to make it consistent with the Constitution.
The three-member SC Bench comprising Justices Buwaneka Aluwihare P.C., Priyantha Jayawardena P.C. and Prasanna S. Jayawardena P.C., ruled that the power vested with the OFR to determine whether or not a person has suffered a violation of “human rights” or, has been the subject of a violation of “humanitarian law”, is a function of making judgement based on an objective examination, assessment and evaluation of facts placed before the OFR, and the parallel task of interpreting a complex body of Law in the present circumstances amounts to a Judicial function.
Furthermore, Clause 25 of the Bill excludes the imposition of civil or criminal liability on “any person” pursuant to a determination by the OFR, which will, unarguably, result in imposing liability on the State to make monetary payment. The SC ruled that findings of such nature by the OFR will have far reaching consequences to the State and people of Sri Lanka.
Two petitions were filed in the SC challenging the Bill, which determined that the other provisions of the Bill are not in conflict with the Constitution and can be passed with a simple majority in Parliament. The OFR Bill provides for “individual reparations” as well as “collective reparations” which will include monetary payment or material benefits to aggrieved persons, while recognizing means of remembrance of deceased persons including memorials.
This Bill will replace the Rehabilitation of Persons, Properties and Industries Authority Act 1987.
“Collective reparations” intend to recognize the right to an effective remedy and benefits of the communities or groups of aggrieved persons, means of remembrance of deceased persons, including memorials, development of infrastructure, educational programmers, training, skills development programmers among others.
“Individual reparations” have been defined in the Bill as measures intended to recognize the right to an effective remedy and benefit an aggrieved individual and shall include any monetary payment or material benefit, micro-finance and concessionary loans etc.