As it cannot co-exist with fundamental rights 

• It is also the responsibility of the rest of the society to focus on the bill’s  ethical  illegitimacy and abort it

Issuing a statement, he said,  the  Supreme Court in a welcome determination, within the ambit of its constitutionally limited powers, has struck down the Rehabilitation Bill as being inconsistent ‘as a whole’ with Article 12(1) of the Constitution. Rarely in the past has the Supreme Court indicted any Bill as a whole! 

The Supreme Court has also indicated that the inconsistency can be overcome if ‘all references to “ex-combatants”, “violent extremist groups” and “any other group of persons” are deleted from the Bill’ and ‘the Bill is limited to the rehabilitation of drug dependent persons and such other persons as may be identified by law’.
It is now the government’s turn to dump this controversial bill, as it cannot exist within a democratic State or co-exist with the citizen’s fundamental rights. The Court and the twelve Petitioners who challenged the bill in eight Petitions have done democratic governance in Sri Lanka a timely service!

The Supreme Court has also examined in detail the several provisions in the bill and made several determinations, virtually down-rating the draft law and imposing the 2/3 majority requirement for most provisions. Reading between the lines, the judicial view appears to be: ‘Rehabilitation? Yes! But stick to the convicted drug addicts’! 
What is now required is for the much-criticized parliamentarians, the political parties and the active sectors of the civil society in the country to follow up the proposed law from other platforms to which the Supreme Court or the Attorney General may not constitutionally venture into.

It is also the responsibility of the rest of the society to focus on the bill’s  ethical  illegitimacy and abort it, notwithstanding the proposed amendments the Supreme Court has carefully determined, as it is mandated so to do under Article 123(2) of the Constitution.  

Clearly, the definition of the word “rehabilitation” both in the original bill and the Supreme Court’s redefined draft, clearly brings out a national “health” related problem and not a “security” related issue. The redefined draft refers to “the procedures and programmes for rehabilitation, treatment, aftercare and support services that shall be prescribed by regulations made under this Act”.

Rehabilitation as proposed in the bill can never be the function of the armed forces but must come under the country’s health sector, considering the objectives of rehabilitation as a healthy alternative to harsh punishments. Clause 17 in the Bill gives undefined roles for the armed forces in the Bureau of Rehabilitation, though they may have some role outside the perimeters of the rehabilitation centres. The Supreme Court has determined Clause 17 as being inconsistent with Article 12(1) of the Constitution.

Another matter of importance is that the inclusion of ‘ex-combatants’, ‘violent extremist groups’ and ‘other groups…’ has come up for serious criticism in the media and during the submissions in Court. The Supreme Court has commented on the references to these sectors as being inconsistent with Article 12, excluding only the rehabilitation of drug-dependent persons. 

The question that the draftsmen ought to have addressed is, should “violent extremists”,  ranging from the Police defined ‘Aragalaya extremists’ to violent extremists of all  religions,  be lumped together with the “drug addicts” for the so-called rehabilitation! Who will rehabilitate the Aragalaya activists who had been calling for the accountability of those responsible for the economic bankruptcy of the country? Armed forces? Who will rehabilitate the undefined so-called Buddhist, Hindu, Islamic and Christian violent religious extremists, if there be any? The Norwegian brainwashed right-wing extremists or the armed forces? 

Rehabilitation of a defined category of convicted offenders in lieu of imprisonment is no doubt a welcome measure. But the bill does not provide for any judicial determination, an essential prerequisite for rehabilitation if fundamental rights are to be protected. The Supreme Court has pointed out that reference for rehabilitation must be through an order made by a Court of competent jurisdiction.

The Justice Minister must do justice to the drug addicts by bringing their  ongoing  rehabilitation  under the Health Ministry and by restricting rehabilitation to trained medical personnel and limiting rehabilitation only to Court convicted drug addicts.

• The Court and the twelve Petitioners who challenged the bill in eight Petitions have done democratic governance in Sri Lanka a timely service