Tuesday, 5 November 2013 01:31
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Appropriation Bill already referred to SC to check constitutionality: CJ
CJ says Bill has already been deemed constitutional
Divisional bench had dealt with all matters raised in the challenge to the Bill by CPA
Petitioner says control granted to Parliament over public finance important check on Executive power
AG argues that Appropriation Bill cannot be a rigid instrument
Special determination to Speaker by 18 November
The Government had already referred the 2014 Appropriation Bill to the Supreme Court and it has been deemed constitutional by a divisional bench, Chief Justice Mohan Peiris revealed yesterday.
A five-judge divisional bench had dealt with all the matters raised in the petition challenging the Appropriation Bill by the Centre for Policy Alternatives, Chief Justice Mohan Peiris said, when the case came up before court yesterday.
The divisional bench set up to study the referred sections had determined the bill was constitutional, the Chief Justice told Counsel for the Petitioner, Attorney-at-Law Suren Fernando. The opinion differs from a judgment delivered on the 2013 Appropriation Bill by a three-judge Supreme Court Bench headed by Justice Shiranee Thilakawardane that found identical provisions to be inconsistent with the constitution.
Under Article 129 (1) of the Constitution, the President can refer a question of law of public importance to the Supreme Court for opinion which the Court can then report to the President.
The three-judge bench headed by the Chief Justice and comprising Justices K. Sathya Hettige granted Counsel for the Petitioner Attorney at Law Fernando to make submissions on the petition filed against the Bill by CPA on the grounds that sections of the Government’s expenditure estimates for 2014 were inconsistent with the Constitution.
Making submissions, Counsel Fernando said that sections of the 2014 Appropriation Bill granted power to public officers to reallocate funds from recurrent expenditure to capital expenditure without the prior approval of Parliament. He said this was in violation of Article 148 of the Constitution that gave Parliament full control over public finance.
Fernando argued that this control over finances granted to Parliament by the Constitution was an important check on the executive.
“An act lacking in such transparency was inconsistent with Article 148,” he told the three-judge bench.
Addressing Counsel for the Petitioner, Chief Justice Mohan Peiris said there was no basis for such fear on the part of the petitioner. The Chief Justice said that Parliament controls finances through legislation and through agency and this also amounted to “control” over public finance.
“Transfer of funds occurs with concurrence of the Treasury and heads of department will not spend willy-nilly,” the Chief Justice argued. He said the Court goes on the basis that all public servants conduct their duties within the law.
“There is no need to load the system with more and more checks and balances to make the process tedious,” he explained.
But Fernando argued that if the Constitution mandated certain controls over public finance, they should not be considered unnecessary.
Fernando argued that legislation cannot be drafted on the assumption that public officials will act properly with regard to public finance. “They must be drafted on the premise that there must be no room for misconduct,” he submitted to Court.
Making submissions about Clause 6 of the Appropriation Bill that created a contingency fund of sorts under the National Budget Department from which money can be transferred with such transfers being notified to Parliament only after two months.
Fernando said that this clause creates a contingency fund outside the contingency fund provided for in Article 151 of the Constitution that also includes safeguards against arbitrary appropriation. The National Budget Department fund would operate outside the control of Article 151, he argued.
Deputy Solicitor General Indika Demuni de Silva appearing on behalf of the state said that the Appropriation Act cannot be a rigid instrument and must allow for a degree of flexibility. “What happens if Parliament is prorogued? Or dissolved? Does the economy of this country come to a grinding halt?” de Silva argued.
The DSG said there were plenty of checks and balances in the Bill that Counsel for the Petitioner had ignored. Parliament also controls funds through other legislation and agency, such as the Auditor General’s Department, the DSG pointed out. “If public officials do the wrong thing, Parliament can go into it,” De Silva said.
After hearing oral submissions, Chief Justice Peiris ordered the attorneys to file written submissions by Thursday (7). The Supreme Court will send its Special Determination on the constitutionality of the 2014 Appropriation Bill to the Speaker of Parliament by 18 November.
