Anura B’s ruling

The following is a summary of Speaker Anura Bandaranaike’s ruling:

Hon. Members, I wish on this occasion, to make a statement concerning an issue which is of the utmost importance and vital concern to all members of this House, which has been occasioned by an unprecedented event which occurred two weeks ago, namely, the issue of two orders by the Supreme Court seeking to restrain me, as your Speaker, from appointing a Select Committee of Parliament under and in terms of Standing Order 78A of the Standing Orders of Parliament.

These orders purport to be made by the Court as interim measures prior to the final determination of two Applications, SC FR 297/2001 and SC FR 298/2001, in which the Petitioners allege that there is an imminent infringement of certain fundamental rights, to which they claim to be entitled, by reason of the envisaged appointment of a Select Committee in terms of the aforesaid Standing Order, pursuant to the notice of the resolution received by me from certain members of this House.

The further orders contemplated in the two applications made to the Court, are of a very far-reaching nature and if granted would entail a stoppage of the contemplated proceedings under Standing Order 78A, which, Hon. Members would be pleased to see, is a complete and decisive intervention, amounting to an interference, with the internal affairs of this House, over which the House alone is complete master and in sole control. This is a right and privilege which elected Legislatures of this country have long enjoyed and claimed to possess without it ever being challenged by any Court or other authority and ungirdled by the laws and the Constitutions that have governed our affairs.

But considering the fact that the questioning of this undoubted right and privilege emanated from the apex Court of this country, I have thought it fit to give the matter the most careful consideration and have sought the advice of learned counsel in the elucidation of this question, which has given rise to controversy.

I have done my own researches into the problem on this matter which only confirm my long-held convictions of the plenary freedom and autonomy of Parliament in the conduct of its own affairs and my intuitive resistance against all attempts from external sources to intervene in this exclusive sphere – a conviction borne out of my own experience as a Parliamentarian which stretches for nearly a quarter of a century.

I am also deeply conscious of my responsibility and obligation as your Speaker and as the custodian of the historic rights and privileges of this Assembly and its members, to be ever vigilant against such intrusions from any place outside this House, which have the effect of impeding the conduct of the affairs of Parliament on the supposed ground of enforcing the constitutional or legal rights of others. These rights and privileges are considered to be essential to the proper performance of the functions and duties of this House, and they constitute the collective inheritance of Parliament, empowered by the law of the State that neither the Speaker nor any single member of the House can renounce or surrender or otherwise abrogate.

Any such right, privilege, immunity or power does not cease unless it be by legislative amendment of the current law. The law on this subject is set out in the Parliament (Powers and Privileges) Act No. 21 of 1953 as amended by Law No 5 of 1978 and Act Nos 17 of 1980, 25 of 1984, 37 of 1987 and 27 of 1997. This Law has all along been acknowledged to be the governing law by the Courts of this country whenever any such question arose for determination and the Courts have upheld the rights, privileges, immunities and powers of Parliament. No other law can be regarded as superseding this law as the Constitution itself recognizes its continuing legal efficacy, until Parliament decides otherwise.

If I may briefly summarize its main provisions, the present law on this subject came to be enacted in 1953 when the Ceylon (Constitution) Order-in-Council of 1946 as amended was in force.

The foundations of the law relating to the powers, rights and privileges of Parliament rest on the necessity “to maintain its independence of action and the dignity of its position” (Halsbury Laws of England Vol 34 (4th Ed) para 1479). The exclusion of the jurisdiction of the Courts to exercise any control over the acts of the Speaker and the officers of the Legislature, has been recognized in our own law, for well over half a century. It was so provided in Section 29 of the State Council (Powers and Privileges ) Ordinance No 27 of 1942. It is a historic privilege recognized in the United Kingdom from ancient times and forms an integral part of our system of parliamentary democracy which has drawn heavily from their practice in the development of our own traditions. As was observed by Stephen J in Bradlaugh v. Gossett (1884) 12 QBD 271

“I think that the House of Commons is not subject to the control of Her Majesty’s Courts in the administration of that part of the statute law which has relation to its own internal proceedings

It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly.” (pg 280 – 281)

Speaker Anura Bandaranaike then went on to cite several British judgments relevant to this matter as well as a judgment by HNG Fernando which pronounced on the subject at issue.

As was observed by an eminent judge of our own Court H.N.G.Fernando J (as he was then) in Attorney-General v. Samarakkody (1955) 57 NLR 412, Section 3 of the Parliamentary (Powers & Privileges) Act of 1953 is an adaptation of Article 9 of the Biil of Rights. In that case in proceedings taken under Section 23 (1) of the Act, on an Application made to the Supreme Court, on an allegation that the Respondents were guilty of an offence triable by the Supreme Court, it was held that the conduct of the Respondents, even if it was disrespectful was not justiciable by the Supreme Court.

It is difficult to appreciate how, notwithstanding these statutory provisions, paragraphs 37 and paragraphs (c) (d) and (e) of the prayer in each of the Petitions, came to be included and on what basis the Court’s jurisdiction came to be invoked in respect of proceedings in Parliament.

Apart from the force of the general provision in Article 168 (1) of the Constitution, the matter is put beyond any doubt by Article 67 of the Constitution which expressly provides that until the privileges, immunities and powers of Parliament and of its members are determined and regulated by Parliament, by law (made under the present Constitution), the provisions of the Parliament (Powers and Privileges) Act shall, mutatis mutandis, apply.

Impeachment signifies a questioning of any conduct on an allegation of fault, error or wrongdoing. From the contents of the two Petitions filed in the Supreme Court, it appears that petitioners are questioning the legality and the constitutionality of the course of action, which Parliament had adopted ,pursuant to the provisions of Article 107 (3) of the Constitution, in framing Standing Order 78A which the Petitioners contend violate various provisions of the Constitution.

I am unhesitatingly of the opinion that the declaration sought in paragraph (c) and the two orders sought in paragraphs (d) and (e) of the prayer to the petitions are clearly situations where a proceeding in Parliament is sought to be impeached or questioned. and such conduct is prohibited by Section 3 of the Parliament (Powers and Privileges) Act of 1953, which the Speaker ought in law to resist and is obliged to object to, on behalf of Parliament and the sovereign rights to which it is heir. I am fortified in this conclusion by a consideration of the British practice. The embargo on any external interference or intervention, in respect of proceedings in Parliament, is of special significance for the effective control over the business of Parliament.

Speaker Bandaranaike thereafter quoted the Erskine May, a widely acknowledged authority on parliamentary procedure and several more precedents from the British courts in support of the contention that the courts could not interfere in the conduct of parliamentary business.

“The whole of the law and custom of Parliament has its origin from one maxim, “that whatever matter arises concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates and not elsewhere.”

Bndaranaike said the foregoing decisions of the Courts of the United Kingdom have been followed in Sri Lanka, being in accord with the law of this country. – vide Attorney-General v. Samarakkody (cited earlier) and the recent case of Gomes v. M.H.Mohamed, Speaker of Parliament (1991) 2 SLR 408, where the Petitioner sought writs of Certiorari and Mandamus against the Respondent who was the Speaker of Parliament. The Petitioner in that case alleged that having entertained the notice of a resolution, seeking the impeachment of President R. Premadasa under Article 38 (2) (a) on 28.08.91 he had, instead of performing his constitutional and statutory functions, under Article 38 (2) (c) had informed His Excellency the President that he “ceased to entertain” the resolution which he had earlier accepted. The Petitioner sought to quash the later decision which claimed to “cease to entertain” and compel by Mandamus the performance of the subsequent steps required to be done under Article 38 (2).

Wijeyaratne J observed at pg 414, “Undoubtedly these are statutory duties laid down in the Constitution but nevertheless they are part of the proceedings of Parliament, therefore this Court is precluded from examining these matters.”

It is my view that the right of the Speaker to appoint a Select Committee, in terms of the said Standing Order 78 is also a proceeding of Parliament having the privilege of immunity to being impeached, questioned or interfered with by any Court of Law. In this regard it is pertinent to quote the submissions of Mr. S. Nadesan, Q.C., on 251h September 1984 before the Select Committee appointed in respect of the removal of the Hon. N.D.M.Samarakoon Q.C. from the office of Chief Justice (Vide pages 199 and 200 of the said Report) of which Select Committee I was privileged to be a Member.

Mr. Sarath Muttettuwegama, M.P.: The appointment of a Select Committee does not depend on a resolution?

Mr. Nadesan Q.C.: Yes. Once you send that resolution for the removal on the ground of misbehaviour, then the Speaker automatically functions.

The Chairman: Your point is that he has no other (Hon. Lalith Athulathmudali) option. Neither has Parliament the option. As the resolution is tabled it has to go to the Select Committee. He cannot refuse.

Mr. Nadesan Q.C.: The Speaker takes over, he cannot refuse. Then immediately he shall appoint a Select Committee of Parliament. It is called a Select Committee, because it is selected – that is alright – consisting of seven members to investigate and report to Parliament on allegations of misbehaviour or incapacity set out in such resolution. He has done that.…

he Speaker said: Finally, if I may summarize the decisions which I have reached on the several issues that have arisen:

1. The Supreme Court had no jurisdiction to issue the interim orders restraining the Speaker of Parliament in respect of the steps he is empowered to take under Standing Order 78A.

2. The aforesaid interim orders dated 6th June 2001 are not binding on the Speaker of Parliament.

3. There is no legal obligation to comply with the said orders.

I will now proceed to instruct the Secretary General of Parliament to place the Motion in the Order Paper.

In conclusion, might I be permitted, on a personal note, to say that I am, indeed, proud to belong to a family that has had the unparalalled and unique privilege of continuously serving the Legislature of this Nation, since, 1932, for nearly 70 years.

Therefore, I deem it a singular honour that fate has bestowed upon me, as Speaker of this august Assembly, by affording me the historic opportunity of reaffirming the principles underlining the supremacy of Parliament. Since I commenced my Parliamentary career in 1977, 1 have often quoted in this House, the words of the Bard from Stratford Upon Avon, William Shakespeare. In his monumental play ‘HAMLET’, he spoke thus:-

“This above all: to thine own self be true And it must follow as the night the day Thou canst not then be false to any man”

Hon. Members of Parliament, throughout my political and Parliamentary career, I have had to face periods of difficulty, great turmoil and greater perplexity, which required me to make important decisions and painful choices.1 have done so unhesitatingly by doing the correct thing and have acted according to the dictates of my conscience.

I thank every one of my Honourable friends from both sides of the House, for their attention and patience.