Resolution proposed against Parliament Select Committee, its legal implications

Chandana Liyanapatabendy -Attorney-at-Law

As widely published in the media, apparently, over seventy five Members of Parliament have presented or, are in the process of presenting a motion to the Parliament requiring Parliament to appoint a Select Committee of Parliament to inquire into and report certain matters involving a former Chief Justice.

Alarmed by the said news or the publicity given by the media, some members of the Bar Association of Sri Lanka (BASL), have apparently handed over a resolution to be considered and adopted by the BASL. The said resolution is listed to be taken up as an item of the agenda of the Bar Council meeting of the BASL, consisting of delegates of the respective local bar associations and law societies. The said resolution, in its present form is against the appointment of a Select Committee of Parliament to inquire into the conduct of a retired Supreme Court Judge during the tenure of his office. The rationale behind the said proposed resolution, means to be that the constitution of the Republic provides for such an inquiry only in respect of a sitting judge. The said resolution is expressly based on the provisions of Article 107 of the constitution, which article deals with the appointment and removal of judges of the Supreme Court and Court of Appeal.

Another section of the Bar has apparently sought an amendment to the said resolution by adding words to it stating that however, we do not condone the conduct referred to in the allegations to be investigated by the proposed Parliamentary Select Committee.

In this setting, I thought it fit to briefly examine the legal provisions pertaining to such matters referred to above in the light of the powers, jurisdiction, restrictions and privileges of Parliament.

Sovereignty of the People

As per Chapter 1 of the Constitution which deals with the subject of the people, the state and sovereignty, Sri Lanka is a sovereign state and sovereignty is in the people and is inalienable. Article 4 of the Constitution provides as to how the elements of such sovereignty would be exercised and enjoyed by the people, and describes such elements as legislative power, executive power, judicial power, fundamental rights and the franchise. The said Article 4 thus provides the manner in which such inalienable sovereignty of the people would be exercised and states as follows:-

(a)the legislative power of the people shall be exercised by Parliament, consisting of elected representatives of the people and by the people at a Referendum ;

(b)the executive power of the people, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the people ; (c)the judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established or recognised by the Constitutions, or created and established by Law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the people may be exercised directly by Parliament according to Law ;

(d)the fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all organs of the Government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided ; and (e) the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament, and at every Referendum by every citizen who has attained the age of eighteen years, and who, being qualified to be an elector as hereinafter provided, has his name entered in the register of electors.

In this setting it is clear that the supreme law of the country has given the power to legislate to the Parliament which is the legislative body of the State, which consisted of two hundred and twenty five members, over seventy five of whom have reported to be submitted such resolution to the parliament requiring it to appoint a Select Committee. As to the provisions of Article 67 of the Constitution, the privileges, immunities and powers of Parliament and of its members are regulated by the provisions of Parliament (Powers and Privileges Act) No 21 of 1953 as amended by Law No 5 of 1978, Acts No 17 of 1980, 25 of 1984, 37 of 1987, and 27 of 1997.

Article 107 of the Constitution

It is clear from the provisions of the said Article 107(2) and (3) of the Constitution that it deals with and provides for, among other things, the removal of a sitting judge and thus there shall not be a contrary view on that.

In light of the above, it is now important to examine as to whether Parliament has the power to inquire into the alleged conduct of a retired Supreme Court judge or a retired Chief justice as is referred to in the widely reported proposed Select Committee of Parliament and proposed to be opposed by the resolution submitted by certain members of the Bar.

In doing so, I do not wish to either support the resolution as proposed in its original form by the first mentioned group of lawyers or support the proposed amendment to it by another group of lawyers, as I made an attempt to argue that Parliament has power and/or privilege and/or jurisdiction to inquire into any matter if it so desires as per the law, rules and regulations pertaining to the same.

Further, in developing such an argument, I do not intend to, either support or oppose any such resolution by the Members of Parliament, as it’s a matter solely for Parliament and its Members.

Powers, Jurisdiction and Privileges of Parliament

As mentioned above, Parliament is the supreme legislative body of the Republic, exercising the legislative powers of the people, which is an inalienable component of sovereignty conferred upon the people of the Republic.

The Parliament of Sri Lanka consists of hundred and ninety six members who have been declared elected at a General Election as Members of Parliament and further twenty nine nominated persons, and the authority of Parliament over all matters and persons within its jurisdiction is somewhat limited however, subjected to the limitations provided for in Articles such as Article 75 of the Constitution etc.

As specifically mentioned above, the privileges or powers of Parliament are governed by the provisions of Parliament (Powers & Privileges Act).

Among other things, the long title to the said Act states that it’s an Act.. ‘to declare and define the privileges, immunities and powers of Parliament and of the members thereof; to secure freedom of speech and debate or proceedings in Parliament...’ It also provides for the punishment for the breaches of the privileges of Parliament.

In this regard, it is important to mention the provisions of Section 7 of the said Act which specifically 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 Parliament of the United Kingdom and by the members thereof.

Halsbury’s Laws of England 4th Ed Vol 34 paragraph 149 (Butterworths) authoritatively considers such rights and privileges of Parliament as necessary ‘to maintain independence of action and the dignity of its position’.

The proceedings of Parliament shall not be questioned in any court or place out of Parliament.

As to the provisions of section 3 of the said Act, the freedom of Parliament and its members enjoy includes the freedom of speech and to debate in Parliament and proceedings in Parliament, and specifically provides that such freedom of speech, debate and proceedings in Parliament shall not be liable to be impeached or questioned in any court or place out of Parliament. In fact, as per the provisions of section 9 of the Parliamentary (Powers & Privileges) Act, all privileges, immunities and powers of Parliament shall be part of the general and public law of Sri Lanka and makes it obligatory of all courts to take judicial notice of the same, even when not pleaded. Erskine May (24th Ed) while citing Article IX of the Bills of Rights 1689 states that there lies on court an obligation not to ‘impeach or question’ proceedings in Parliament.

As per provisions of part II of the Parliament (Powers & Privileges) Act read together with schedule to the said Act, there are certain acts and omissions declared to be a breach of the privilege of Parliament and shall be considered as an offence punishable by the Supreme Court.

Whilst considering such rights and privileges of Parliament and Members thereof as is essential to Parliament and to each house of Parliament to maintain its independence of action and the dignity of its position as the legislature of the kingdom, the courts of the United Kingdom time and again have declined to interfere with the authority of Parliament in regulating its own affairs and internal proceedings.

When rightly considering that the House of Commons (Parliament) is not subject to the control of her Majesty’s courts in the administration of its own internal proceedings, in Bradlaugh v. Gossett (1884) 12 QBD the Queens Bench Division held that ‘the Court has no power to interfere with the internal affairs or proceedings of the House of Commons either directly or indirectly or in any other manner’.

In Attorney-General v. Samarakkody 57 NLR 412 at 427 H.N.G.Fernando J. (as he then was) held that..‘any conduct being conduct included within the scope of section 3 and 4 of the Parliamentary (Powers & Privileges) Act, cannot be questioned or impeached in proceedings taken in this Court (Supreme Court) under section 20 of the Act. The jurisdiction to take cognisance of such act was exclusively vested in the House of Representatives.’ and thus held in such instance the Court has no jurisdiction to rule regarding any such conduct occurred within the Parliament. This ruling also shows the vast power and authority enjoyed and exercised by Parliament and its members and that the Parliament alone has the right to question or do anything with regard to what is happening in the course of the proceedings of Parliament in any manner and whatsoever and it further shows not only the general public, but even the courts have no power to question them.

Standing Orders of Parliament & Select Committees

As per the provisions of Article 74 of the Constitution, the Standing Orders of Parliament provides for, among other things, the regulation of its business, the preservation of order of its sittings and any other matter for which provision is required or authorized to be so made by the Constitution. As Black’s Law Dictionary (6th Ed at page 1116) which gives definitions of the terms and phrases of American and English jurisprudence, describes a Parliamentary select committee ‘as a committee of members of the house.’ appointed by the House for the purpose of making inquiries, by the examination of witnesses or otherwise, into matters which could not be conveniently inquired into by the whole House.’

The Standing Orders of Parliament provides for the appointment of a committee of the whole Parliament if it so desired to and resolved and further provides for the appointment of Select Committees if it so desired to enable a Select Committee to whom a Bill or matter has been referred to hear evidence thereof and thus empowers such committee to send for (summon) persons or papers and records etc. Such Select Committees so appointed have the leave or permission to report their opinions and observations, together with the minutes of evidence taken before them, to Parliament and also have the power to make a special report of any matters which they may think fit to bring to the notice of Parliament.

These provisions that are contained in Standing Orders 94-103 makes it clear that the Parliament if it so desires and resolves, has the power and authority to appoint Select Committees to inquire into any matter and to report or bring to the notice of the Parliament.

The words’... ‘a Select Committee’ to whom a Bill or matter has been referred to...’contained in the Standing Order 94 makes it clear that it is not only the Bills that can be referred to such Select Committee but any other matter which the Parliament so resolves to be taken up before such Select Committee.

When considering the above powers and the privileges enjoyed by Parliament and its Members, it is clear by irrespective of whether a judicial officer is retired or not in service at present, that it has full power and authority to inquire into and to report its opinions and observations to the Parliament.

In view of the above, it is my considered view that irrespective of whether the Bar Association resolves in terms of the original motion or together with the proposed amendment, that the Parliament of Sri Lanka has the full power and authority to inquire into any matter if it so desires and resolves. In view of the above, it is my further considered view that if in the event such motion or resolution had been presented by such members of Parliament to the Speaker, it may be considered as proceedings of Parliament and thus it may be considered as an intervention to the authority or the privileges of Parliament or its members and would sometimes be considered as an offence. In this regard, I wish to mention that Erskine May - Parliamentary Practice 24th Ed which is the highly regarded authority or treatise on the law, privileges and proceedings and usages of Parliament, considers proceedings as covering not only asking of a question, giving written notices of the question, but also includes everything said or done by a member in the exercise of his/her functions as a Member in Parliament and Committee thereof.

2001 Ruling by the Speaker

It is now necessary to refer to somewhat a similar incident where sometime back in the middle of 2001, where the then Supreme Court issued an interim order restraining the speaker from appointing a Select Committee of Parliament regarding a motion the speaker has accepted for the impeachment of the then Chief Justice and the ruling given by late Anura Bandaranaike MP who was then the Speaker of Parliament.

In that instance, the Supreme Court consisting of three judges issued a stay order restraining the speaker from appointing a Select Committee of Parliament to inquire into the conduct of the chief justice consequent to a motion of impeachment against such chief justice presented by the some members of the Parliament.

The Parliament considered it as an unprecedented move by the Supreme Court to intervene into and interfere with the supremacy of the Parliament and its proceedings.

By a ruling given by the Speaker on the 20th june 2001, he re-affirmed and upheld the supremacy of the Parliament over the Judiciary.

Even though such motion was presented to the Parliament to impeach the incumbent chief justice who was serving at that time in terms of Standing Order 78 A, by his well considered and highly regarded ruling, the Speaker of Parliament considered such unprecedented move by the Supreme Court as an interference with the internal affairs of the House, over which the House alone is complete master and in sole control.

Having considered the materials such as the provisions of Parliament (Powers & Privileges) Act, leading texts on the subject and several leading decided cases, both Sri Lankan and elsewhere, the then Speaker of the House resolved that ‘Parliament and its Members have the plenary freedom and autonomy in the conduct of its own affairs and that such powers, authority and the privileges are essential to the proper performance of the functions and duties of Parliament which are considered as collective inheritance of Parliament, empowered by the law of the State, which cannot be renounced, surrendered or otherwise abrogated’.

impeachment

In the above circumstances, it is clear, the proposed motion or resolution to appoint a Select Committee is not intended to impeach a sitting judge as is envisaged by the original resolution sought to be passed by some section of the Bar and thus can rightfully be regarded as a resolution for the appointment of a Select Committee of Parliament to inquire into any matter, as is envisaged by Standing Order 94, and thus comes directly within the powers and jurisdiction of the Parliament.

Further, in view of the above, it can be argued that both the original draft resolution and the amendment sought to thereof, presented by the members of the Bar Association to be resolved as a resolution of the Association, signifies a questioning of the conduct of the Parliament and/or its Members and/or making an allegation of fault on the part of some members of Parliament or making an allegation of error or wrong doing.

In view of the abovementioned material, it is clear that such conduct of the Parliament cannot be questioned or impeached in any place outside the Parliament and thus in view of the law and practice prevailed upon the subject, the Parliament of the Members thereof may disregard any such resolution.

In this setting, it is my considered view if the Parliament so desires and resolves, it has the full power and enjoys full privilege in appointing any such Select Committee to go into and/or to inquire any matter and that not only the general public, but even the courts have no jurisdiction to question and/or to do anything with regard to such conduct of Parliament.