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Speaker has power to appoint Select Committee
[June 21, 2001]

Speaker Anura Bandaranaike yesterday rejected a Supreme Court order and directed that the opposition motion to impeach Sri Lanka’s Chief Justice be included in the order paper. 

The Supreme Court earlier issued an interim injunction restraining the Speaker from appointing a Parliamentary Select Committee to probe charges against the Chief Justice. 

The full text of the Speaker’s statement is as follows:

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.

They 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 the House, over which this 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 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 1953 as amended by Law No 5 of 1978 and Act Nos 17 of 1980, 25 of 1984 and 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 whenever they arose for consideration. 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 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 Bradlugh v. Gosset (1884) 12 QBD 271 at 278    

"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 ... And at pg 277 citing the case of Stockdale v. Hansard 1839, 9A&E 1 the same judge observed:-

"Lord Denman says at page 114: whatever is done        within the walls of either assembly must pass without    question in any other place. Littledale J says ( at pg 162)

"It is said that the House of Commons is the sole judge of its own privileges and so I admit as far as the proceedings in the House and some other things are concerned" Patterson J said ( at pg 209)"Beyond all dispute, it is necessary that the proceedings of each House should not be liable to examination elsewhere" and Coleridge J said (at pg 233) "that the House should have exclusive jurisdiction to regulate the course of its own proceedings and animadvert upon any conduct there in violation of its rules or in derogation from its dignity, stands upon the clearest grounds of necessity".

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 1953 is an adaptation of Article 9 of the Bill 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 was considered to be conduct within the scope of Section 3 and 4 of the said Act and could not therefore be questioned or impeached in proceedings taken before the Supreme Court. The jurisdiction to take cognizance of such conduct was accordingly deemed to be exclusively vested in the House of Representatives. Fernando J said at pg 422 in unambiguous terms:-     

“If therefore the conduct of the Respondents of which   complaint is made in the application falls within the scope of "speech debate or proceedings in the House", within the meaning of Section 3 of the Act, then clearly the Court has no jurisdiction to question that conduct."

The relevant statutory provisions with reference to the question raised are the following:

Section 3 of the Parliament (Powers & Privileges) Act of 1953 which, inter alia, states that proceedings in the Parliament "shall not be liable to be impeached or questioned in any court or place out of Parliament" is crystal clear in providing for complete autonomy of decision by Parliament and unfettered control over its proceedings and in inhibiting any external interference over its internal affairs. This is further reinforced by Section 4 of the Act, which provides that "no member shall be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of anything which he may have said in Parliament or by reason of any matter or thing which he may have brought before Parliament by petition, bill, resolution, motion or otherwise. Likewise Section 6 of the Act provides that "no person shall be liable in damages or otherwise for any act done under the authority of Parliament and within its legal powers." There is in addition a considerable reservoir of powers, privileges and authority, that has been conferred on Parliament by reason of Section 7 of the Act which provides that "Parliament and the members thereof shall hold, enjoy and exercise, in addition to the privileges, immunities and powers conferred by this Act such and the like immunities as are for the time being held, enjoyed and exercised by the Commons House of the Parliament of the United Kingdom and by the members thereof."

The cumulative effect of these provisions in my opinion, place the question of the exercise of the Speaker's powers wholly outside the control of any court.  Indeed, Section 9 of the Act expressly provides that "all privileges, immunities and powers of Parliament shall be part of the general and public law of Sri Lanka and it shall not be necessary to plead the same, but the same shall in all courts in Sri Lanka be judicially noticed."  It is difficult to appreciate how, notwithstanding these statutory provisions paragraphs 37 and paragraphs (c) (d) (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.

The expression "proceedings in Parliament" in Section 3 is not statutorily defined but has been broadly construed in British Parliamentary Practice. It's primary meaning as a technical parliamentary term signifies some formal action, usually a decision taken by the House in its collective capacity and embraces all forms of business in which the House takes action and indeed the whole Parliamentary process, the principal feature of which is debate by which it reaches a decision and would naturally include the initial step which sets the process in motion. The several obligations cast on the Speaker by Standing Order 78A when notice has been given of a resolution for the presentation of an address to the president for the removal of a Judge from office would clearly be of this description - whether such duties be of a mandatory or discretionary nature. This would include his duty to appoint a Select Committee upon being satisfied that the notice is in compliance with the requirements of the said Standing Order.

The expression "impeached or questioned" in Section 3 of the Parliament Act is likewise not defined, but here too in the context of the law it would be legitimate to follow British Parliamentary practice and relevant judicial interpretation, having regard to Section 7 of our Parliament (Powers and Privileges )Act of 1953. 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 Petitioner's contend violate various provisions of the Constitution.

I am unhesitatingly of opinion that the declaration sought in paragraph (c) and the two orders sought in paragraph (d) and (e) of the prayer to the petitions are clearly situations when 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 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. Erskine May 22nd Edition (1997) states the rationale for this doctrine as follows:

"Since parliamentary privilege is a means to a collective  discharge by each House of Parliament of its functions,  occasions have arisen and will continue to arise when one House or the other is content not to insist upon its privileges either generally or in a particular case..... there is, however, an area where such considerations do not arise. Article IX of the Bill of Rights, 1689 lays on courts an obligation not to "impeach or question proceedings in Parliament.”

The prohibition is statute law and, unless there has been amending legislation, the protection it confers cannot be waived or not insisted upon by either House (see pgs 93-97 of Erskine May). He cites at footnote 6 the following case:

"It was held by Lord Heatherley L.C. in Duke of Newcastle v. Morris (1870) LR HL4, 668 that a privilege of Parliament established by common law and recognized by statute should not be abrogated except by express words in a statute" (Erskine May - pg 66)

I am of opinion that the legal position is no different in Sri Lanka, especially because Section 9 of the Parliament Powers and Privileges Act which makes such immunity part of the general and public law of Ceylon" and which makes it obligatory for all courts to take judicial notice of it, even when not pleaded.

Even where issue of free comment and human rights vis a vis Parliamentary privilege arose as in the case of Prebble v. Television of New Zealand Ltd 1994 3 All ER 407 before the Privy Council Lord Brown-Wilkinson identified three potentially conflicting issues: first, the need to ensure that the Legislature can exercise its powers freely on behalf of its electors with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. The conclusion of the Judicial Committee was that though the other two could not be ignored," the law had long been settled that of these three public interests, the first must prevail (ibid at pg 417).

It has been held that Article IX  of the Bill of Rights of 1689 (which corresponds to section 3  of our own Parliament Powers & Privileges Act) is a provision of the highest constitutional importance. On a recent occasion the Speaker of the House of Commons (the Rt. Hon. Betty Boothroyd) indicated that she takes very seriously any potential questioning of parliamentary proceedings by the courts (House of Commons Debates (1992-93) 229 col 351)

In British Railways Board and Another v. Pickin  1974 (1) All ER 609, the House of Lords held that the Plaintiff's reply should be struck out because the substance of the plea raised in that case, was that the court was entitled to and should disregard what Parliament had enacted. It was held that the Courts had no power to disregard an Act of Parliament, whether public or private nor had they any power to examine proceedings in Parliament in order to determine whether the passing of an Act had been obtained by means of any irregularity or fraud refer to the following observations made by the learned judges as being relevant:

Lord Reid said at pg 618:

"The court has no concern with the manner in which      Parliament or its officers carrying out its Standing      Orders perform these functions. Any attempt to prove that they were misled by fraud or otherwise could necessarily involve an enquiry into the manner in which they had performed their functions in dealing with the bill which became the British Railways Act 1968 ....for a century or more both (Parliament and the courts have been careful not to act so as to cause conflict between them.  Any such investigation as the Respondent seeks could easily lead to such a conflict and I would support it if compelled to do so by clear authority. But it appears to me that the  whole trend of authority over a century is clearly against permitting any such investigation".

Likewise Lord Simon of Glaisdale said (at pg 627-8)

"a second concomitant of the sovereignty of      Parliament is that the Houses of Parliament enjoy certain privileges. These are vouchsafed so that Parliament can fulfill its key function in our system of democratic government. To adapt the words of Lord Elenborough C.J. in Burdett v. Abbot...... they (the Houses) would sink into utter contempt and inefficiency without (them) Parliamentary privilege is part of the law of the land. Among the privileges of the Houses of Parliament is the exclusive right to determine the regularity of their own internal proceedings".... 

In Church of Scientology v. Johnson-Smith (1972) 1All ER 378 Brown J said:

" I accept the Attorney-General's argument that the scope of Parliamentary privilege extends beyond excluding any cause of action in respect of what is said or done in the House itself. And I accept his proposition which I have already tried to quote, that is, what is said or done in the course of proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House. 

In my view this conclusion is supported both by principle and authority"

In Prebble v. Television NZ Ltd 1994 (3) All ER 407 Lord Browne-Wilkinson in the Privy Council observed (in an appeal from the Court of Appeal of New Zealand) citing the words of Blackstone.

"The whole of the law and custom of Parliament has its original 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."

He comments at pg 416:-

"The privilege protected by Article 9 is the privilege of Parliament itself. The actions of any individual member of Parliament even if he has an individual privilege of his own, cannot determine whether or not the privilege of Parliament is to apply. The wider principle encapsulated in Blackstone's words quoted above prevents the courts from adjudicating on issues arising in or concerning the House viz. whether or not he has misled the House or acted from improper motives. The decision of an individual member cannot override that collective privilege of the House to be the sole judge of such matters."

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.

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 the 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."

I have not derived any useful assistance from a consideration of the Indian judicial decisions on this question since there are fundamental structural differences in both Article 122 (1) and Article 212 (1) of the Indian Constitution. Under those provisions the courts are precluded from inquiring into the validity of any proceedings in Parliament and State Legislature respectively" on the ground of any alleged irregularity of procedure" and not on any general ground of illegality or unconstitutionality, unlike Section 3 of the Sri Lankan Parliament Act which contains no such limitation or restriction. In India it would therefore appear that the immunity in respect of proceedings is granted only where the validity of the conduct is sought to be impugned on grounds of non-compliance with procedure. Accordingly, the reasoning in Indian judgements would not apply here.

It is my view that the right of the Speaker to appoint a Select Committee in terms of the said Standing Order 78A 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 25th 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: (Hon. Lalith  Athulathmudali)

Your point is that he has no other    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 7  members to investigate and report to Parliament on allegations of  misbehaviour or incapacity set out in  such resolution. He has done that....

The appointment of a Select Committee of Parliament is done by the Speaker under the Standing Orders of Parliament.

Standing Orders themselves are made by Parliament under Article 74, which appears in Chapter 11. This Chapter prescribes the procedure and the powers of the Legislature. The Speaker is therefore not performing executive or administrative functions within the meaning of article 17 and Article 126. He acts as an officer of Parliament performing the functions of Parliament. Paragraph 36 of the Petition alleges that the appointment of the Select Committee by the Speaker constitutes executive or administrative action. This clearly is an erroneous interpretation acting upon which the Supreme Court has assumed jurisdiction to make the Stay Order. If permitted, this may well lead to a flood of cases of this type, where the Speaker would have to face potential Court cases questioning his acts and Orders on the erroneous premise that he is performing executive and administrative functions.

The Supreme Court has in several decisions laid down the principle that the Court has no jurisdiction to entertain an Application under Article 126 if the alleged infringement is not by executive or administrative action.

Sharvananda J in Vel Murugu V. Attorney General and others (Decisions on Fundamental Rights  Cases at p 223) states "This Article is directed against the Executive and is designed as a corrective for executive excesses only".

In this instant case what the restraining orders of the court seek to do is to foreclose discussion or debate on the resolution referred to in the notice given in terms of Standing Order 78A preventing the appointment of the Select Committee which being an essential preliminary step to the inquiry contemplated, is as clear a breach of Section 3 as may be imagined. Not only have the Petitioners obtained an interim stay order but are seeking relief by way of restraining further action by Parliament on the resolution and thereby virtually rendering nugatory the provisions but are seeking relief by way of restraining further action by Parliament of Article 107 which empowers the regulation of the procedure prior to removal from office by way of Standing Order. An examination of the Petitions shows that the grounds pleaded in paragraphs 20,22,23,24,31, to 35, of the said Petitions which rely on alleged defects and infirmities of the procedure adopted by Parliament in entrusting the inquiry into the conduct of the judge to a Select Committee of the House, on the ground that they violate Article 3 and 4 (c ) of the Constitution and certain fundamental rights of the petitioner undoubtedly constitute an impeachment and a questioning of the proceedings of Parliament. I am satisfied that the petition both in respect of the substantive paragraphs noted above as well as in the several paragraphs of the prayer thereto, violate the clear and unambiguous prohibitory provisions of Section 3 of the Parliament (Powers and Privileges) Act of 1953 because the several grounds of complaint specified in the Petition are clearly founded on what the Speaker is required to do pursuant to the said Standing Order. However, Members of Parliament may give their mind to the need to introduce fresh legislation or amend the existing Standing Orders regarding Motions of Impeachment against Judges of Superior Courts. I believe such provision has already been included in the Draft Constitution tabled in the House in August 2000.

The Petitioners have not sought to explain or justify such clear contraventions of the “general and public law” of Sri Lanka, which is expressly recognized by Article 67 of the Constitution itself. Nor has the Court stated the legal basis for the issue of the interim orders in the face of this  prohibition and of which it was obliged to take judicial notice.

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

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.

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

There is no legal obligations 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, I 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.        

I 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.

END.

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