The need for clear and simple laws

The role of Parliament in promoting Good Governance 8


By Prof. Rajiva Wijesinha

Though Parliament is meant to approve all legislation, the way legislation is currently formulated presents massive problems to Parliamentarians, and I suspect few understand thoroughly what they are voting for or against. I include myself in this number, even though I have no doubts about my own intellectual capacity. The problem is, most Bills take the form of Amendments to earlier Bills, and all that is placed before Parliamentarians are such Amendments, without the original text. Obviously these cannot be understood easily without the original bill.

Initially, when it seemed that something more than simple changes of figures was involved, I used to seek a copy of the original Bill which was being amended. This however takes time to obtain, so I have requested the Secretary General to make copies of the original bill available in the Chamber.

He readily agreed but, on the first occasion on which I took advantage of this facility, I found another complication. What was being amended was an Act of 2006 as amended in 2007 and 2008 and 2009. It was therefore essential to get copies also of those Amendments, in addition to the original Act.

Then however I found that trying to follow amendments to amendments with three sets of papers in front of one is very difficult. If Parliamentarians find this difficult, it must be impossible for ordinary citizens. This only plays into the hands of lawyers, and I am sure contributes to litigation which would be unnecessary if the law were clear.

The remedy for this is very simple. It is to present before Parliament the new version of the whole Bill, incorporating all amendments, and move that the previous version be repealed and replaced with the new one. If it is essential to indicate the changes that have been made, these can be included in the form of footnotes, as for instance has been done with some editions of the Constitution.

Unfortunately we tend in Sri Lanka to follow old British practices, and do not think even of finding out whether Britain still uses these. I suspect this business of amendments piled upon amendments occurred in the days before computers, when producing a new, perfect version of an old Act would have been a difficult and long-drawn-out business. Now that we have computers however, it obviously makes much more sense to place the entire Bill as amended before the House for consideration.

I am astonished that the idea has not occurred previously to Parliamentary staff, since I believe this is what happens in many other countries. It occurred to my cynical mind that perhaps the reason the Legal Draughtsman’s Department had not proposed change, even though it would make their own lives much easier, is that the Department consists of lawyers. Many of them would go into practice on their own in later life and, since ambiguities in the law are the very lifeblood of lawyers, the more confusion there is, the better for them.

Certainly there is much confusion. With regard to the Local Authorities Elections (Amendment) Bill for instance, in addition to other problems, the draft amendments given to us confused the date of nominations with the date on which nominations had been called.

The Inland Revenue (Amendment) Act was even more confusing. I gave up trying to understand it when I came to Clause 13, which was intended to amend Section 23 of the 2006 Act, This Section, as amended by Act No 9 of 2008, was to be ‘further amended by the substitution in subsection (1), for the words "the first investment, an associate company.", of the following words and figures:-"The first investment, an associate company:

"Provided further that "Where any venture capital company had not made any investment prior to April 1, 2011 for the purchase of ordinary shares in any project referred to in paragraph (a), (b), or (c) of subsection (1), such company shall not be entitled to any tax exemption under this section.".

I went through both the 2006 Act and the 2008 Amendments, and nowhere could I find in Section 23 the words ‘first investment’ or ‘an associate company’. It is possible that I was singularly dense, but no one else I consulted could find these either.

The problem was further compounded when we were given Amendments to be moved at the Committee Stage of the Bill. An Amendment was proposed with regard to Clause 13 of the Amendments in the Bill before us, to ‘delete lines from 7 to 11 (both inclusive) and substitute the following: -

by Act No 9 of 2008, is hereby further amended in subsection (1) of that section by the substitution in the further proviso of that subsection, for the words "be three years.", of the following:-

"be three years:".

I think this meant that a full stop was to be changed to a colon. It struck me as bizarre that so much energy should have been spent on this, but more seriously, even if that change was essential, the effect of working through an amendment to an amendment was to leave the section I have highlighted on its own, without the clause to which the original proposed amendment had attached it.

I have requested that the Legal Draughtsman’s Department be asked what precisely was intended. I realize of course that the English version is not as important as the Sinhala and Tamil versions but, since tax lawyers usually work in English, it is important that this version too be easily understood. I should note that, when I have checked anything with the Sinhala version, the problem has remained.

The solution to all this is very simple, but I suspect we will be told that tradition forbids change. The fact that laws should be easily understood, both by those who pass them, and those who have to use them, will count for little, in comparison with the commitment to an archaic tradition of those who live by interpreting the law.

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