clearly be identified as a government owned airline.
The leader of the opposition’s argued that despite the Appropriation Act containing this clause, it could not override the constitutional requirement under Article 150(1) &(2) as the constitution is the basic law. He cited in support of this argu- ment the case of Wanigasekera vs AG. (Re Appropriation Act No. 47 of 1985) where a citizen challenged the Appropriation Bill which sought to give the Minister of Finance the
directly should not be done indirect- ly. He also warned that such practices would make Sri Lanka a lawless state. To revert to the deliberations
before the Supreme Court, the Court noted that from the year 2003 onwards this clause embodied in sec- tion 6 had been included in the Appropriation Acts.The fact that this clause has been passed during previ- ous years is no argument in support of its legitimacy.The court also noted that vesting the discretion by Parliament in the Secretary to the
would be urgent and unforeseen expenses in view of the volatile situa- tion in the country. However the instances of transfer of funds high- lighted by the leader of the opposi- tion cannot be described as “urgent” or “unforeseen” by any stretch of imagination. The Supreme Court also sought
to bring in the provisions of the Fiscal Management (Responsibility) Act no.3 of 2003 in support of this clause in the Appropriation Bill.This Act seeks to require the government to place its economic plans before Parliament to enable it to evaluate the government’s fiscal performance. However clause 6 of the Appropriation Bill relates to unplanned expenditure and any sub- sequent evaluation under the Fiscal Management (Responsibility) Act or by the Auditor Generals Department would be a “post mortem” exercise akin to closing the stable door after the horse has bolted. Was this provision in fact uncon- stitutional? If so it should have been treated as a constitutional amendment and passed with a 2/3 majority to become law .The Supreme Court determined that the Bill was not unconstitutional. On receipt of the determination,
The Chamber during a sitting of the Parliament of Sri Lanka.
authority to vary the limits pre- scribed in the schedule to various Ministries, Departments etc.The Supreme Court held that it weakened and violated Parliament’s control of Public Finance .The Court also held that it was anomalous for Parliament which had to exercise financial con- trol over expenditure by the execu- tive to delegate that power to the very authority which it has to super- vise without devising suitable checks to control the use of that power. The leader of the opposition emphasized that if a new project is to be created it would be imperative for a supplementary estimate to be approved by Parliament for that pur- pose and that it was illegal for the Secretary to the Treasury to usurp the powers of Parliament and create new heads or projects as it would be a violation of constitutional principles. He pointed out the hallowed legal principle that what cannot be done
Treasury would be only after due and proper consideration and therefore cannot amount to an abdication. However, the necessity for passing a supplementary estimate is a requirement under the constitution and the Appropriation Bill 2007 itself recognizes this reality. But it seeks to achieve this not by in fact passing an actual supplementary estimate but by enacting and legalizing a fiction by “deeming” it to be covered by a sup- plementary estimate .Thus this pro- vision effectively removes Parliament’s right to demand accountability from the Secretary to the Treasury .Therefore there is indeed an abdication of the authority of Parliament in empowering the Secretary to the Treasury such sweeping discretionary powers. In his submissions to the court, the Deputy Solicitor General appear- ing for the Attorney General also submitted that such transfers of funds
the Speaker was confronted with the problem of deciding whether he was constitutionally bound to accept this determination. Under Article 121 of the constitution the Supreme Court has the sole and exclusive jurisdiction to decide on the constitutionality of Bills However Parliament is the Supreme Law making authority under Chapter 1 of the constitution which describes the sovereignty of the state Therefore whether Parliament should ,in its sphere of supremacy be bound by the determi- nation of the Supreme Court was a very difficult question to decide .The constitution itself does not make it imperative for the Parliament to accept every determination of the Supreme Court though in the past it has always done so. In case of doubt it would always be preferable to pass a Bill with a 2/3 majority. The Speaker however decided to accept the determination of the Supreme Court and accordingly the Bill was passed with a simple majority.