Parliamentary privilege and judiciary
Posted on May 16th, 2017

By Neville Ladduwahetty Courtesy The Island


A Fundamental Rights Petition was filed in the Supreme Court (SC. FR. Application No. 116/2016) challenging the legitimacy of the present Government to have a Cabinet of Ministers in excess of 30 and for the number of Ministers who are not members of the Cabinet of Ministers and Deputy Ministers not to exceed 40 as per Article 46 (1) of the 19th Amendment of the Constitution.

The grounds for filing the Petition were that the present formation of the Government did not meet the criteria of a National Government as set out in Articles 46 (4) and 46 (5) of the 19th Amendment. These Articles state:

Article 46(4): “Notwithstanding anything contained in paragraph (1) of this Article, where the recognized political party or independent group which obtains the highest number of seats in Parliament forms a National Government, the number of Ministers in the Cabinet of Ministers, the number of Ministers who are not Cabinet of Ministers and the number of Deputy Ministers shall be determined by Parliament”.

Article 46(5): For the purpose of paragraph (4), National Government means, a Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political PARTIES or the independent GROUPS” (emphasis added).

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The above provisions formed the basis for a Resolution that was tabled in Parliament by Hon. Ranil Wickramasinghe on 3rd September 2015. The resolution stated:

Sir, I move,

Whereas the United National Party which obtained the highest number of seats in Parliament has formed a National Government, Parliament determines in terms of Article 46 (4) of the Constitution of the Democratic Socialist Republic of Sri Lanka that the number of Ministers in the Cabinet of Ministers shall not exceed 48 and the number of Ministers who are not Cabinet Ministers and the number of Deputy Ministers shall not exceed 45″ (Hansard, p. 98).

The above Resolution was debated and approved by Parliament in the midst of a variety of interpretations being given by Members of Parliament as to their understanding of what constituted a National Government. One of issues that was debated hotly was the interpretation of the phrase “other recognized political parties or independent groups”. While some opined that “other” meant all the remaining parties together with the party with the largest majority, other Members of Parliament insisted that if that was the case the phrase should read “ALL” other remaining parties.

It is evident from the variety of interpretations advanced by Members of Parliament that there is ambiguity as to what is meant by “National Government” and as long as such ambiguities exist there is a need for a constitutionally recognized authority to clarify such ambiguities. Such an authority is the Supreme Court under provisions of Article 126. This article states:

“The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental rights …”. Despite this constitutional requirement the Supreme Court denied leave for the Petition to proceed on grounds of Parliamentary privilege since the issue had already been debated in Parliament.

DETERMINATION OF THE SUPREME COURT

The determination of the Court that consisted of the Chief Justice and two others was:

“Having heard the submissions of all Counsel, we find that the matters referred to in the amended petition dated 11th May 2016 have been taken up before the Parliament on 3rd September 2015”.

“The Court further observes that the said matters have been debated in Parliament as evidenced by the Parliamentary Hansard dated 03rd September 2015 marked R1. In terms of Article 67 of the Constitution read with Section 03 of the Parliament (Powers and Privileges) Act No. 21 of 1953 as amended, the speech, debate and proceedings in the House shall not be liable to be impeached or questioned in any Court or place out of the House”.

Continuing the Court cited two Cases to support its determination..

“In the Case of Hewamanne Vs. DeSilva (1983) 1 SLR 1. at page 144, Ranasinghe, J (as he was then was) having referred to a passage from Erskine May’s Parliamentary practice 17th Edition states as follows”:

“Section 03 of the Parliamentary (Powers and Privileges) Act 21 of 1953 referred to the freedom “of speech, debate and proceedings”. The term “proceedings” there would seem to cover spheres of activity not covered by “speech” and “debate”. The term “Proceedings in Parliament” should not be confined to utterances made on the floor of the House but should be extended to include all that is said and done within the House by a Member in the exercise of his essential functions as a Member of the House”.

“Thus, the affairs of the Parliament is (sic) to be regulated by the House itself and the Court should not interfere in these matters”.

Although in the first case cited Ranasinghe J. is reputed to have referred to Erskine May’s 17th Edition dated 1964 page 62, the actual quotation cited in the judgment is from Halsbury: Laws of England (4edt) at paragraph 1486.

The second Case cited was the determination by the Indian Supreme Court in the case of Sharma Vs. Shree Krishna Sinha AIR 1960 at page 1,186, speaking through Chief Justice Sinha, noted that: “the validity of the proceedings inside the legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. No Court can go into those questions which are within the special jurisdiction of the legislature itself which has the power to conduct its own business”.

The judgment fails to realize that while Parliament has the authority to make or repeal laws and in this case determined what constituted a “National Government”, the interpretation of the law set out in the 19th Amendment to the Constitution should ONLY be undertaken by the Supreme Court IF Article 126 is to have any relevance. The very fact that several interpretations were advanced when the Resolution of 3rd September, 2015 was debated reflects the degree of ambiguity associated with what is meant by “National Government”; a fact that should have been debated and resolved during the passage of the 19th Amendment. Since this did not happen, the only authority constitutionally empowered to interpret what is meant by a “National Government” at this point in time is the Supreme Court.

The reference to Erskine May’s 17th Edition cited in the first case quoted is dated 1964, and the second case cited was in 1960. However, since then what constitutes “Parliament privilege” has undergone significant changes judging from the opinion cited: “the starting point of statutory interpretation today remains the literal interpretation of the text, and it is only if there is genuine ambiguity and uncertainty that extraneous material can be relied upon as a tool…It also recognizes the reality that however well Parliament legislates (and we have only ourselves to blame when we don’t) some interpretation may be needed (Attorney General’s Office UK, The Rt Hon Dominic Grieve QC, 25 October 2012.) .

This is how separation of powers between Parliamentary privilege and the Judiciary is supposed to work. If such separation of functions is not recognized, Parliament would be making Laws and interpreting them as well. The judgment sets in place a dangerous precedent that could have serious implications because it recognizes a practice where Parliament could by Resolution debate and interpret any provisions in the Constitution and arrive at a legitimate determination by consensus without reference to any constitutionally recognized authority to ensure conformance with the Constitution. Such a state of affairs is unacceptable to the People because it violates their sovereignty.

RECENT DEVELOPMENTS relating to PARLIAMENTARY PRIVILEGE

The material cited below is from the UK Parliament’s website www.parliament uk: Parliamentary Privilege First Report.

36. “A primary function of Parliament is to debate and pass resolutions freely on subjects of its own choosing. This is a cornerstone of parliamentary democracy. The performance of this function is secured by members of each House having the right to say what they will (freedom of speech) and discuss what they will (freedom o0f debate). These freedoms, the single most important parliamentary privilege, are in article 9 of the Bill of Rights 1689…”.

37. “Over the years this article has been the subject of many legal decisions. Even so, uncertainty remains on two basic points: what is covered ‘proceedings in Parliament’ and what is meant by ‘impeached or questioned in any …place out of Parliament’.

42. “…From at least 1818 the practice in the House of Commons was that its debates and proceedings could not be referred to in court proceedings without the leave of the House…One effect of the 1981 change has been that the use of Hansard in court proceedings has increased. The oft quoted statement of Blackstone in his celebrated eighteenth century Commentaries ‘that whatever matters arise concerning either House of Parliament, ought to be examined, discussed and adjudged in that House to which it relates, and not elsewhere’ is now accepted as being too wide and sweeping’.

Pepper v. Hart 1993

43. “One of the uses the courts now make of parliamentary proceedings is as an aid when interpreting Acts of Parliament. This follows from the decision in Pepper v Hart. The case concerned proper meaning of a taxation provision…Tax was payable by Mr. Hart on ‘the cash equivalent of the benefit’, but the statutory definition of that expression was ambiguous…”.

44. “The house of Lords in its judicial capacity decided that clear statements made in Parliament concerning the purpose of legislation in course of enactment may be used by the court as a guide to the interpretation of ambiguous statutory provisions. The Lords held such use of statements did not infringe article 9 because it did not amount to questioning a proceeding in Parliament. Far from question the independence of Parliament and its debates, the courts would be giving effect to what was said and done there”.

CONCLUSION

The Fundamental Rights petition (SC. FR. No. 116/2016) challenging the legitimacy of the current Government to have a Cabinet of ministers in excess of 30 and Ministers who are not members of the Cabinet of Ministers and Deputy Ministers in excess of 40 as per Article 46 (1) (a) and (b) was denied the right to proceed by the Supreme Court.

The judgment by the Supreme Court on 18 September, 2016, was based on the grounds that “proceedings in the House shall not be liable to be impeached or questioned in any Court or place out of the House”. This determination was founded on opinions that prevailed in Erskine May’s Parliamentary Practice 17th Edition of 1964, referred to in the first case cited above and by the opinion of the Indian Supreme Court during the second case cited above in 1960. Since then the notion as to what constitutes Parliamentary privilege was changed in 1981, and as stated in paragraph 43 cited above, Parliamentary proceedings could be used “as an aid when interpreting Acts of Parliament”.

Erskine May’s 24th Edition, 2011 referring to Pepper v. Hart (p. 297) states:

“In Pepper v Hart in 1993 the House of Lords set aside the long-standing rule of the courts which prevented them from admitting parliamentary debates as an aid to their constructions of statutes. Their Lordships unanimously agreed that their decision would not give rise to that ‘impeaching or questioning’ of parliamentary proceedings forbidden by the Bill of Rights”.

It is crystal clear that the leave to proceed in the Human Rights petition filed in 2016 was denied because the Court relied on notions of Parliamentary privilege that were outdated. It is also crystal clear from the material presented above, that HAD the Supreme Court been aware of the more recent developments in relation to Parliamentary Privilege, the leave to proceed with the petition would have been granted. As stated by the House of Lords in Pepper v. Hart, the issue is not to question Parliament’s right of free speech in Article 9 of the Bill of Rights. Instead, what it very correctly questions is for the Supreme Court to recognize the RIGHT of PARLIAMENT to INTERPRET the very provisions in the Constitution Parliament itself instituted when it passed into law the 19th Amendment. That right has to be some other constitutionally recognized authority, such as the Supreme Court. If the practice adopted by Parliament wherein it interprets by itself and for itself what is meant by a “National Government” is permitted, it would set in place a precedent that would violate the sovereignty of the People as it relates to separation of “powers of government”, because Parliament would not only be making and repealing laws but also interpreting them as well.

Therefore, these developments present an opportunity to initiate a fresh case where “Purposive Approach to Statutory Interpretation” is adopted by a full bench of the Supreme Court in order to redress the Fundamental Rights violations that continue to be perpetrated under the current formations of the Executive Branch of this Government.

2 Responses to “Parliamentary privilege and judiciary”

  1. Fran Diaz Says:

    Our thanks to Mr Ladduwahetty for this article.

    ———-

    In present day Lanka, there appears that the Judiciary has been quite forgotten to interpret Law passed by the Parliament !

    There is a type of Fascism setting in, in a number of ways ….
    What can the People do to set matters right ?
    Isn’t there a failure of Democracy here ?

  2. Dilrook Says:

    Sovereignty of the people has been constantly violated since going federal in 1987. What is present today is shared sovereignty exercised between the parliament and provincial councils as in a typical federal country. We saw the parliament changing the Chief Justice even without two thirds support for it!

    It is clear Articles 46 (4) and 46 (5) introduced by the 19A intend to destabilize the next government. Most politicians want a minister, deputy minister or state minister portfolio, especially popular ones. If the number is restricted to 70, the incentive is to go for a national government. This will naturally motivate higher vote winners to crossover.

    The present administration is protected for four and a half years by the 19A but the next is not. 19A also bars Mahinda and Namal from contesting the next presidential election and stops Basil and Gotabhaya from contesting parliamentary elections.

    Coupled together, these articles have been introduced to collapse the next government early.

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