Impeachment proceedings: Sole responsibility entrusted to Legislature
Posted on January 14th, 2013

Speech delivered by External Affairs Minister Professor G.L. Peiris, in Parliament on Thursday, January 10, 2013 :

Mr. Speaker, I think it is very important for us to be clear in our minds about some basic principles. Who has the responsibility in respect of impeachment proceedings of judges of the superior courts?

Is it the Legislature or the Judiciary? With regard to this matter, Sir, there is a uniform and consistent practice all over the world. In the United States, it is the Senate that is responsible for arriving at a determination in respect of impeachment proceedings; in the United Kingdom, it is the House of Lords and in the Philippines, it is the Senate. The consistent practice is that responsibility in this regard is entrusted by the constitutional structure to the legislative organ of government.

Sir, for this, there is very compelling reason. Why is it that this responsibility is given to the Legislature and not to the Judiciary? There is a very cogent reason. The reason has been spelt out by courts of the highest authority. For example, the Supreme Court of the United States, where the previous Chief Justice, William Rehnquist, whose tenure straddled several American administrations, gave this as a rationale. He said, “To exercise any form of judicial review over the Senate proceedings is just as bad as handling the matter directly”.

There is a question of bias; There is a question of public perception of bias. If one judge has the power to quash directions against another judge, if one judge is intervening to protect the interests of his or her judicial brethren, there is a violation of one of the basic tenets of natural justice. One of the basic requirements of natural justice is total impartiality and detachment, and there must be a clear public recognition that that is the case.

In the famous case of Pinochet, which all of us have heard about, the English Court of Appeal gave the same reason: if the courts get involved in this, how can they be seen as not being biased? That is the very conceptual foundation of the principle that, in respect of impeachment proceedings, the responsibility is that of Parliament and not the courts.

Sir, quite recently, this principle has been applied in the Philippines, where, towards the end of 2011, impeachment proceedings were brought against the Chief Justice of the Philippines, Justice Renato Corona.

In that case, the Chief Justice of the Philippines did exactly what the Chief Justice of Sri Lanka did. The Chief Justice of the Philippines went to court and asked for a Writ of Certiorari to quash the proceedings.

That is what Chief Justice Shirani Bandaranayake did in this country. What was the outcome? The courts of the Philippines categorically and very emphatically said, “This is not a matter for us to get involved in. We will not exercise any form of jurisdiction in respect of this matter because this belongs to the domain of the Legislature”. They declined jurisdiction. Unfortunately, the opposite was done by the courts of Sri Lanka.

Violating all the established principles in this regard, the principles which govern the basic relationship between Parliament and the courts, the Sri Lankan courts assumed responsibility for this matter and went so far, for the first time “”…” this is unique in the annals of legal history 22? as to issue a Writ of Certiorari to quash proceedings of this august Assembly.

Supreme Court

Chief Justice William Rehnquist of the Untied States spelt out the dangers inherent in this course of action. He said, I paraphrase, “Do not do this. We will not do it because it is a course of action fraught with danger”. That has proved almost to be a prophecy, Sir. If we examine the Judgement of the Supreme Court, we can seen how flawed it is and how serious is the erosion of public confidence in the integrity and the objectivity of the Judiciary at its highest levels.

I would like to draw your attention, Sir, to several paragraphs in the Judgement. The Supreme Court itself quotes Article 107(3) of the Constitution. This is the sentence that the Supreme Court quotes:

“ƒ”¹…”Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address”¦..”

One does not need any knowledge of the law; a simple understanding of the English sentence is all that is required. It states, “Parliament shall by law or by Standing Orders.” There is a clear alternative “”…” this or that. Parliament can, at its discretion, decide which of these vehicles or instruments it proposes to use for the purpose of investing with authority this Select Committee appointed under Article 107(3).

Mr. Speaker, in 1984, 29 years ago, the Parliament of Sri Lanka “”…” not this Government “”…” in its wisdom, brought its mind to bear upon this matter and decided that they would choose not legislation but Standing Orders. Sir, amazingly, truly amazingly, the Supreme Court then goes on to say this. At the beginning of the very next paragraph, the Supreme Court states in its Judgement, I quote:

“There is a presumption that Parliament will not use words in vain or unnecessarily”.

In other words, every word has to be given a meaning; there is no word which is superfluous or redundant. Then, I ask the simple question, what is the meaning that you are going to give to the words “or by Standing Orders”? It must have a meaning because the Supreme Court itself says that in no statute, least of all, the Constitution of the Republic, would you expect a phrase or a word to be used unnecessarily. This is basic. The Court then comes to an astonishing conclusion. It says that Parliament must act, in this matter, only by law and by law alone. In the Judgement, the phrase “only by law and by law alone” is underlined.

Democratic process

How do you reconcile that with the plain meaning of the words used in Article 107(3)?

I have read a series of statements by the Hon. Lakshman Kiriella, who rightly insists that the function of interpreting the Constitution of Sri Lanka belongs solely and exclusively to the Supreme Court. That is the plain effect of Article 125, and my learned Friend is absolutely correct in asserting that. However, there is a very clear difference between interpretation and legislation. Interpretation requires the court to construe the language that is used in a statute and to attribute to that language, the plain meaning of the words. Interpretation does not go so far as to allow the court to delete, to expunge from statute law any words that are used in it nor is the court entitled, on the basis of interpretation, to add to the language that is used in a statute.

Now, Mr. Speaker, this has been clearly recognized by the most distinguished judges of our country. I quote the Supreme Court itself in quite a recent judgement, in 2006, in the case of the Attorney-General vs. Thilanga Sumathipala, where it is stated:

“A Judge cannot, under the thing guise of interpretation, usurp the function of the Legislature to achieve a result that the Judge thinks is desirable in the interest of justice. Therefore, the role of the Judge is to give effect to the expressed intention of Parliament, as it is the bounden duty of any court and the function of every Judge to do justice within the stipulated parameters. This has been the unchallenged view expressed by the Supreme Court of Sri Lanka for almost a hundred years”.

Executive and the Judiciary

So, when the Constitution states “by law or by Standing Orders”, the court has to recognize that there are two options; the court cannot exclude one option. Of course, no law is written for all times. As social priorities change, as we discover in the light of empirical experience that laws need modification and improvement, the Legislature must undertake that task. It is not for the court to rewrite the law. My own distinguished teacher, Dr. A.R.B. Amerasinghe, who subsequently became a Judge of the Supreme Court, wrote a book called “Judicial Conduct, Ethics and Responsibilities”. Justice Amerasinghe says this in his book, I quote this one sentence:

“If legislation needs amendment because it results in injustice, the democratic process must be used to bring about the change”.

It is Parliament, consisting of the elected Representatives of the people, that must undertake the law-making function. It would be constitutional heresy to suggest or to imply that the court, however exalted it may be, can undertake the law-making function.

Laws can be made here and here only. Nobody can usurp that function. This is very clear from the entire conceptual framework of the Constitution of Sri Lanka. Article 4 recognizes the doctrine relating to the separation of powers.

Minister Prof. G.L. Peiris

There are powers and responsibilities that are given to the Legislature, the Executive and the Judiciary. In this case, there is no doubt at all that the court has usurped for itself, without any semblance of justification, powers and responsibilities which belong to this House and to this House alone. It would be grossly irresponsible on the part of Parliament to acquiesce in that finding. That would be a dereliction of the public duty of Parliament. Mr. Speaker, this judgement is replete with error, and those errors are obvious on the face of the judgement.

I would like you, Sir, to consider these sentences at page 23. The Supreme Court, referring to the Select Committee presided over by my Friend, the Hon. Anura Priyadharshana Yapa, says this. I quote form the Judgement:

“In the case of a finding made by a Select Committee Parliament has to take cognizance of such finding that the allegations against the Judge have been proved and make an address of Parliament to be presented to the President for the removal of the Judge”.

The court says, “Parliament has to take cognizance of”. That is completely wrong. The Select Committee, like any other Committee, will submit its report to Parliament. Standing Order 78A uses the phrase, “investigate and report”.

The Select Committee will investigate and report its findings to Parliament. It is for Parliament to debate those findings and to decide whether to accept them or to reject them. It is completely and utterly wrong to say that “Parliament has to take cognizance of” such findings. That is not the case at all. That is a fundamental error which vitiates the reasoning in this judgement.

That is not all. The judgement goes on to say, I quote:

“”¦.. the final decision of the Select Committee is what that eventually takes effect”.

Again, that is fundamentally and basically wrong. There is no final decision of the Select Committee. The Select Committee does not make any decision at all. One the contrary, it merely arrives at a finding at the conclusion of the investigation it conducts. There is no decision at all, there is only a finding.

Court of Appeal

Then, truly incredibly “”…” I am very sorry to say this because these are my own students “”…” (interruption) No. I think it is a very dangerous doctrine to attribute to the teacher the sins of the student. Sir, there is this sentence here in the judgement. I quote:

“The finding of the Select Committee is not subject to confirmation or approval by some other authority”.

Is that correct, Sir? Is it not subject to confirmation or approval by some other authority?

The true position is that the finding of the Select Committee is subject to confirmation or approval not by one authority, but indeed by two authorities. One authority is Parliament itself. The second authority is the President because Parliament at the conclusion of this Debate tomorrow, when the Vote is taken, will make an address to His Excellency the President, and the final decision is to be made by none other than the President of the Republic. The court is wrong. It is misdirecting itself fundamentally when it says that there is no scope for confirmation or approval by any other authority. Then, the court says, again completely wrongly, I quote:

“”¦..the address of Parliament to be presented to the President is an inevitable consequence of a finding that the charges have been proved”.

It is nothing of the sort, Mr. Speaker. It is not an inevitable consequence at all because Parliament can reject it, entirely or in part. There is nothing inevitable about it.

Therefore, what I am saying is that this reasoning is absolutely flawed, and it does not reflect any credit on the highest court in this land. All these problems arise for the basic reason that was fully appreciated in the Renato Corona case in the Philippines.

The Supreme Court of the Philippines, to protect their brother judge “”…” I mean, these are judicial brethren, we are all human beings “”…” had every opportunity of doing what the Supreme Court and the Court of Appeal did in this country. But they had the good sense and the integrity not to do that. They said the entire constitutional system works on the basis of a proper and coherent allocation of powers and responsibilities. It is a question of delineating the limits of public power. That is the pith and substance of the reasoning contained in the judgement of the Supreme Court of the Philippines. They, therefore, did not wish to get embroiled in the matter. The Supreme Court of Sri Lanka, on the other hand, took this upon themselves and came up with a judgement that, I say with great respect, is not worth the paper that it is written on.

Sri Lankan Constitution

Now, Sir, see what has happened next. The Supreme Court handed down this judgement. Then, the next step is the Court of Appeal and the Court of Appeal concludes its judgement with these words. It is the judgement of Justice Sriskandarajah and His Lordship says at the conclusion of his judgement, I quote:

” In view of the above determination “¦”¦..” – that is the determination of the Supreme Court.

“In view of the above determination and the finding and/or the decision or the report of the 2nd to the 8th respondents marked as P17″¦..”.

-that is my Colleagues who were on the Select Committee.

“”¦.has no legal validity and as such this court has no alternative, but to issue a writ of certiorari to quash P17 (the Report of the Select Committee), thus giving effect to the determination of the Supreme Court referred to above.”

It does not appear from this language that the Court of Appeal is doing this with any relish at all, they do not seem to be liking what they are doing. That is why they are saying, “this court has no alternative”.

That is, the Court of Appeal has its hands tied by the Supreme Court. I have indicated to you, Sir, how demonstrably flawed the reasoning of the Supreme Court happens to be. So, the Supreme Court takes away from the Constitution of this land, words which are part and parcel of the Constitution. In so doing, the Supreme Court is making an unpardonable inroad into, an encroachment upon, the powers which are inherent in this sovereign Legislature; powers that are conferred upon it specifically by the provisions of the Sri Lankan Constitution. The Supreme Court arrives at a finding which is incurably flawed. It is a very bad finding. Then, the Court of Appeal says, “Because the Supreme Court has sent this Determination to us, we have no choice but to follow the ruling of the Supreme Court”. The source of it all is entirely tainted.

Let us examine for a moment the repercussions of this anomaly, because those repercussions are going to reverberate through our legal system for many more years when all of us are gone. Here, we have a situation in which the court has destroyed the fundamental basis of the law governing the relationship between the judicial and the legislative branches of government.

It has departed without any semblance of logic or sound policy from well-established principles of law, and it has set this particular branch of public law adrift on uncharted waters with horrendous consequences for institutions which we hold to be sacrosanct in this country.

Mr. Speaker, I would like to indicate what the position has been up to now. No court has hitherto dared to touch this Parliament, quite rightly. For 350 years, the courts of the United Kingdom have evolved a body of law which has recognized that Parliament is immune from the exercise of the jurisdiction of Her Majesty’s Courts in respect of its internal procedures.

That is the distilled wisdom which your distinguished predecessor, the late Speaker, Hon. Anura Bandaranaike, expounded in his celebrated Ruling which was delivered from the Chair which you now occupy, Sir, in June 2001. This is what the Speaker, Hon. Anura Bandaranaike said, encapsulating the substance of the principles which have been developed in an uninterrupted manner for several centuries. This is a privilege which is now being assailed for the first time, and this has consequences for posterity, not only for the 225 Members who are in this House today.

The Hon. Anura Bandaranaike, said, “This is a 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.” He went on to say that “These are principles faithfully approved and followed by our Parliaments up to the present day”.

Rights and privileges

This is part of the cherished legacy of this nation, which the late Speaker upheld, as you did yourself, Sir, in the Ruling which you gave just a few weeks ago.

Mr. Speaker, you made very clear the position that no Member of this House, least of all, you, Sir, the custodian of the rights and privileges of this House, can be directed by any court in this country to appear before that court in relation to any matter that has to do with your official functions in Parliament. This is the proud tradition which has been maintained, and there is total continuity with regard to the maintenance of that tradition.

One of Sri Lanka’s most respect Judges, H.N.G. Fernando who subsequently became Chief Justice, had an emphatic view to express on this matter in the case of Attorney-General vs. Samarakkody. This is the opinion of one of this country’s most respected judges about the importance of the principles which are today being eroded for the first time in the legal history of this Island. H.N.G Fernando, J. said, I quote:

“The cumulative effect of the jurisprudence, constitutional provisions read in conjunction with the Parliament (Powers and Privileges) Act of 1953 as amended, in my opinion places the question of the exercise of the Speaker’s powers and the powers of the Members of this House, exercised both jointly and severally, outside the control of any court.”

That is one of the coveted privileges which Parliaments, both in this country and in all other nations of the Commonwealth and indeed even outside the Commonwealth have safeguarded, at the cost of their lives, in some instances. H.N.G. Fernando, J. says that these are powers which Parliament must always exercise. There can be no challenge, and no court has the power to trespass upon the territory which belongs only and exclusively to the legislative organ of Government. For the first time, we have a Writ of Certiorari actually quashing a Parliamentary proceeding.

This is something wholly unimaginable to anybody even superficially familiar with the cultural ethos which pervades the public law of this country, which is based on the public law of England. It is really to make the basic principles of law stand on their head. It is a fundamental disservice to all that we hold to be important with regard to the legal legacy to which we are proud heirs. It flies in the face of an unbroken line of direct rulings by the Supreme Court.

In matters that were connected with the impeachment that was brought against the former Chief Justice, the Hon. Sarath N. Silva “”…” this was a case filed by Victor Ivan, who was at that time the Editor of Ravaya, Victory Ivan vs. Sarath N. Silva, important observations were made. Justice Wadugodapitiya was the Chairman of a Bench that consisted of five judges.

What is interesting, Sir, is that one of the members of that Bench was the present Chief Justice, Dr. Shirani Bandaranayake. The others were Justice Priyantha Perera, Justice Gunasekara and Justice Ismail. In this Judgement “”…” it was a unanimous decision of that Bench of five judges “”…” they specifically recognized that Article 107 (3) of the Constitution provides a lawful means of removing from office the Chief Justice of this country. In other words, the present Chief Justice accepted that position sitting on that Bench and associating herself with the judgement that was delivered by Justice Wadugodapitiya. There are many other cases of acknowledged authority, I do not wish to labour the point.

Standing Order

The Hon. M.H. Mohamed was one of your distinguished predecessors, Sir. In the case of Gomes vs. M.H. Mohamed, which had to do with the impeachment proceedings against the late President Ranasinghe Premadasa, the Supreme Court said that they would not consider interfering with Parliament or inquiring into any procedure within Parliament. That is not for the courts; the courts will not embark upon such an exercise because it is inappropriate and because it would constitute an affront to the dignity of Parliament. In Gomes vs. M.H. Mohamed, the court declined to do something even less, far less, than what the courts have purported to do in relation to this House on the present occasion. I think I have said enough to establish the position that what has happened is not only contrary to all principle and precedent, but it is something that would affect the rights of future generations of legislators.

I would also like to draw attention to this. The very proposition that Standing Order No. 78A is bad, because the authority of the Select Committee is derived from Standing Orders as opposed to a law, is a proposition which does not bear scrutiny because there are previous instances in which this Standing Order was used in the same way by previous Select Committees without one word of objection. I refer to the proceedings in respect of the late Chief Justice, Neville Samarakoon.

In that case, there were two Select Committees. The function of the first Select Committee was very limited. It was simply to ascertain whether Chief Justice Neville Samarakoon had made a speech at Sinnathurai Commercial Tutory. That was a question of fact “”…” had he made that speech or not? And the conclusion was arrived at that Chief Justice Neville Samarakoon, in fact, did make that speech.

A second Select Committee was appointed to go into the question whether the contents of that speech amounted to proven misbehaviour in the relevant context because Chief Justice Neville Samarakoon criticized, in somewhat strong terms, some of the aspects of the policy of the Government of the late President J.R. Jayewardene. The second Select Committee acted on the basis of Standing Order 78A. So, if this Select Committee is bad, the previous Select Committee was also bad. If Standing Order 78A is bad on this occasion, it was equally bad on the previous occasion. But, it is a Standing Order which has stood without challenge for 29 years. If we get into this situation of allowing the Supreme Court, under the guise of interpretation, to take away selected portions of the statute law of this country, then we are up against a very dangerous situation in which the very phrase “statutory interpretation” becomes a total misnomer. That is not interpretation at all. That is lawmaking. Lawmaking can be done only by one organ of the State, and that is the Legislature.

That is the position, Sir, and I would like briefly to indicate what the future course of action is. What has happened so far is that 117 Members of this House presented to you, as Speaker, a Motion calling for the appointment of a Select Committee. The Constitution requires you, upon receiving such a Motion signed by not less than one-third of the Members of the House, to proceed to the appointment of such Select Committee, which you, Sir, as Speaker, duly did.

Public law

The Committee then comes into existence. The Committee derives its vires from Standing Order 78A, which itself is a creature of statute. The Select Committee carries on with its work “”…” it is not a judicial act, it is simply an investigative act “”…” and there is in public law, a fundamental distinction between the function of adjudication and the function of investigation. They are two vastly different things. The Select Committee carries out its function of investigation; it arrives at a finding and the finding is conveyed to Parliament. The only restriction with regard to time frames that is incorporated into Standing Order 78A, is the compulsory requirement that there must be an interval of one month between the submission of the Report to Parliament and the commencement of the Debate.

The Report was submitted to Parliament on December 8 and any time after the 8th of January, Parliament is free to debate it. Parliament is now embarking on that Debate; the Vote will be taken tomorrow evening and the next step is, if Parliament agrees with the findings contained in the Report, then, in terms of Article 107, an address has to be presented to the President. And, the President as the appointing authority also has the power to dismiss the Chief Justice from office. Indeed, that is expressly recognized by the Supreme Court in the last page of its judgement.

This is, consequently, a lawful proceeding; it is a proper proceeding and it is a proceeding which has been unjustifiably and indefensibly assailed by courts acting entirely outside their jurisdiction.

It is for this reason that this House is duty-bound not to take cognizance of such judgements, which are totally incompatible with the basic powers of this House. These are powers which Parliament enjoys not for their own sake but as an instrument of service to the people of Sri Lanka.

The whole basis of the law relating to Privilege is that these rights are necessary for the elected representatives of the people to discharge their functions with acceptance. Without these powers and rights, the representatives of the people will find themselves without the authority that they need properly to discharge their functions.

This is the practical importance of the concept of Privilege. Therefore, Sir, it is my submission that Parliament must jealously guard these rights and not allow any functionary outside Parliament “”…” be it the courts or anyone else “”…” to take away these rights, which we hold to be vitally important.

Powers of judiciary

This must be recognized and understood very clearly by people who say that we have defied the courts. We are not defying the courts. It is the courts who have thrown to the winds all restraints and limitations which govern the exercise of their authority and that is, by its very nature, an arbitrary and capricious proceeding. Those who talk of the Rule of Law must recognize that denial of impunity is an essential characteristic of the Rule of Law.

All authorities exercising public power must be astute to confine themselves to the boundaries within which power is conferred upon them. This is an instance where it can be shown with crystal clarity that the courts have overstepped their jurisdiction in defiance of the plain language that is used in the Constitution of this country. This is why this situation cannot be construed as one in which Parliament is seeking to ride roughshod over the judiciary and refusing to recognize the lawful powers of the judiciary.

On the contrary, it is the Supreme Court, without any consideration of the consequences and with scant regard for the body of law which has established itself over such a long period of time, with scant regard to all of this, it is the courts that have assailed the authority of Parliament.

I ask, Sir, if it is the unanimous opinion of this Assembly, as indeed it was a few week ago, that no single Member of this House should appear before the court in response to the notice that was issued and everybody agreed with that “”…” the government agreed with that; the United National Party agreed with that; the Janatha Vimukthi Peramuna also agreed with that “”…” and not one single Member of the Select Committee appeared before the courts.

That is in recognition of the principles that I have sought to expound in this intervention. If that is so, Sir, how can anyone without palpable contradiction say, “We do not go anywhere there because we do not recognize their right to ask us to come; they have no right to engage in that exercise at all.

Therefore, we will not go there”. There was unanimity with regard to that. There was no cleavage of opinion in any form between the government and the Opposition. If we were able to arrive at unanimity with regard to that basic principle which goes to the very root of the authority of this august Assembly, how then, I ask, Sir, is it possible for those very people now to say, “We did not go there, but now we recognize that judgement and we want to give effect to it even though it transcends the lawful powers of the courts and makes a very fundamental encroachment upon the powers of Parliament which we all individually and collectively are bound to uphold”.

This is why I say, Sir, with due responsibility, that this is a matter which goes beyond the specific circumstances of the impeachment against the Hon.(Dr.) Shirani Bandaranayake. It is far more important than that. It is a far broader set of principles that are in jeopardy on this occasion.

Inherent value

Mr. Speaker, this is why it is important to recognize the legality and the propriety of everything that has been done in this instance. It is of even greater importance to acknowledge the dangers that are inherent in allowing this kind of encroachment because if it is allowed once, then it will happen again and again in the future. Up to now, there was no precedent, whatsoever, which enabled the courts to do what they have purported to do on this occasion.

The entire body of precedent, the cursus curiae is entirely against that. Now, we have a radical departure from that and for the first time “”…” and this is nothing short of a constitutional heresy “”…” the courts have exercised their power under the prerogative writs, in this case a Writ of Certiorari, to quash “”…” to deprive of legal effect “”…” a proceeding within the precincts of Parliament.

We have to be mindful of what is implied in that departure from established principles. I would ask you, Sir, to do everything in your power “”…” I think we all collectively need to discharge that obligation “”…” to ensure that the public in this country are made aware of what is involved in this situation.

We must do everything possible to safeguard what is of inherent value in all that we have inherited from those who have gone before us and we are equally bound to hand it down in its pristine integrity to those who will come after us.

I thank you, Sir, for your indulgence.

3 Responses to “Impeachment proceedings: Sole responsibility entrusted to Legislature”

  1. Lorenzo Says:

    “Unfortunately, the opposite was done by the courts of Sri Lanka.”

    By whom?

    Sri Skandarajah, Saleem and another SC judge!

    You don’t get INDIANS and ARABS like this in the Phillipines SC! That is the difference.

    ALL Phillipines SC judges belong to their majority community. Just like the armed forces of SL. They love their OWN country than outsiders.

  2. Ariya Says:

    The Parliament cannot defy the Courts. There is no way for the Courts to rule the Parliament according to the the Basic Law of the country, the Constitution.

    In certain European countries with oldest parliament sin the world (not UK), the Courts cannot even accept a case against a Member of the Parliament, whatever the matter. The Courts, or a relevant authority could inform the Parliament and ask for the cancellation of the MP’s immunity. This immunity cannot be cancelled without the 2/3 majority. This doesn’t mean that the MP’s immunity is hard to be cancelled, so he could stand before the Courts, if the charge against the MP is serious. There were many situations a MP’s immunity was cancelled for the case at hand in the Courts, and some times the MP was not allowed to come to the Parliament. If there was a judgement against the MP, and he has to serve a prison term, he is thrown out of the Parliament.

    Coming back to this Shirani’s case, she had asked her own subordinates to pass a judgement favouring her, which in itself a corruption. The Courts cannot pass judgement against the Parliament, which is the law making institution of the country, while the Courts cannot make the law, and can only intepret the law. The Courts cannot change the Law, but the Parliament can, and that’s the supreme duty of the Parliament.

    I know, our GL likes to say lot of words, but the gist of is in my last paragraph; the Courts cannot change the Law and Court’s interpretation of the Law is not binding to the Parliament. The Parliament is the law maker and the decision maker. Any decision by the Courts can be overturned by the Parliament and dismissed by the Executive.

  3. cassandra Says:

    Like so many others contributing to these columns, GLP also seems to look on parliament as a sort of sacred cow answerable to no one, supreme, and not even subject to the constitution from which it derives its authority. Neither does GLP seem to recognize the rightful role of the judiciary to provide rulings when interpretations of the constitutional position are sought.

    There is little point in re-stating the arguments to the contrary, and, anyway, the impeachment has now run its predictable course.

    It is pertinent, however, to ask GLP, following his spirited defense of the impeachment process, how he would have felt if he had been in the shoes of the CJ, Shirani Bandaranayake. Can he in all honesty and good conscience say that in that scenario he will have been happy with the process that was employed and satisfied with the outcome?

    Now for comments on some matters that GLP has mentioned. His statements are shown within brackets and within quotes.

    (“Who has the responsibility in respect of impeachment proceedings of judges of the superior courts?

    Is it the Legislature or the Judiciary? With regard to this matter, Sir, there is a uniform and consistent practice all over the world. In the United States, it is the Senate that is responsible for arriving at a determination in respect of impeachment proceedings; in the United Kingdom, it is the House of Lords and in the Philippines, it is the Senate.”)

    My dictionary defines ‘uniform’ as not varying in form or character – in other words, as being the same. So, no way, can it be said that there is a uniform practice all over the world, in this regard. This is a wholly misleading statement.

    In fact there are many differences between what obtains in the countries he mentioned and the situation in Sri Lanka, which GLP failed to mention. For instance, he failed to mention that in the US, the senators have a conscience vote unlike in SL where the MPs vote along party lines. This is a very important difference. The whole idea of making comparisons with what happens elsewhere is irrelevant and misleading. The Sri Lankan parliament’s situation is like no other. Here we have a government with a 2/3 majority, no second Chamber, an all powerful President and a Speaker of the House who is his brother.

    (“One of the basic requirements of natural justice is total impartiality and detachment, and there must be a clear public recognition that that is the case.”)

    Well said, and we all say, ‘Amen’. But tell me, did Shirani Bandaranayake receive the benefit of natural justice during the proceedings of the PSC? There is certainly no “clear public recognition that that is the case.”

    The clear public recognition is of how flawed the whole process was. And, there is perhaps no more persuasive argument against impeachment proceedings being conducted by a PSC under the authority of Standing Orders, than the recently concluded exercise – there was an obvious lack of impartiality – let alone “total impartiality” – or ‘detachment’ – virtues that GLP states are such basic requirements of natural justice

    (“the Sri Lankan courts assumed responsibility for this matter and went so far, for the first time – this is unique in the annals of legal history 22? as to issue a Writ of Certiorari to quash proceedings of this august Assembly.”)

    So, what, if this is the first time the courts have done so? Isn’t that because the matter has not been raised before? Surely, there always has to be a first time

    (“It is nothing of the sort, Mr. Speaker. It is not an inevitable consequence at all because Parliament can reject it, entirely or in part. There is nothing inevitable about it.” – said with reference to the Supreme Court statement that “…..the address of Parliament to be presented to the President is an inevitable consequence of a finding that the charges have been proved”.)

    Isn’t this being rather ingenuous? In the event, did not what was said was inevitable indeed happen?.

    (“But, it is a Standing Order which has stood without challenge for 29 years”)

    One must question this statement. I have read that Mr S Nadesan, QC challenged it in the course of the impeachment proceedings against Justice Samarakoon. The fact is that neither of the previous attempts to impeach a CJ – those involving Neville Samarakoon and Sarath Silva – ran their due course. This is the first time that the matter has been put to a real test.

    (“We must do everything possible to safeguard what is of inherent value in all that we have inherited from those who have gone before us and we are equally bound to hand it down in its pristine integrity to those who will come after us.”)

    No-one would quarrel with these sentiments. We should indeed bequeath to future generations our heritage in the manner GLP has noted – IN ITS PRISTINE INTEGRITY. We could legitimately ask, however, how the impeachment process just concluded, and the recent attacks on the integrity and independence of the judiciary will help achieve that commendable objective.

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