Parliament

Parliament immune from Court actions - Minister Prof G L Peiris

Sandasen Marasinghe and Disna Mudalige.

Speaker Chamal Rajapaksa presided when Parliament met at 1.00 p.m yesterday. After the presentation of papers. The house took up the debate on the Impeachment Motion made against chief Justice Dr. Shirani Bandaranayake for the first day.

Leader of the House

Water Resources and Irrigation Minister Nimal Siripala de Silva: A resolution was handed over to the Speaker as per Article 107(2) of the Construction for a motion of Parliament to be presented to the President's for the removal of Dr. Shirani Bandaranayake from the office of the Chief Justice of the Supreme Court of Sri Lanka.

Accordingly a Parliament Select Committee (PSC) was appointed by the Speaker to investigate charges and the report was presented to the House on December 8. After one month period we take it up today.

During the PSC investigations it was found out the first, fourth and fifth changes have been proven. Today is an important juncture in Parliament's history.

According to the Soulbery Constitution, the Superior Court Judges could have been removed even without an investigation.

According to 1972 and 1978 Constitutions, the Judges of Superior Courts can only be removed by the order of the President after a motion was passed in Parliament. The Standing Order 78 was formulated when the Impeachment Motion against former Chief Justice Neville Samarakoon was presented.

The Constitution states in 107(3) "Parliament shall by law or Standing Orders" proceed on such matter. The Supreme Court determination is not an interpretation, but a deletion of a phrase. Nobody, accept Parliament has the power to remove phrases of a special article. Can we let the Supreme Court execute our powers? The Supreme Court has been misguided.

Dr. Shirani Bandaranayake was a member of the panel of judges who gave assent to the 18th Amendment to the Constitution. According to the 18th Amendment when there is no provisions in the Constitution, the President can remove a Superior Court Judge. So the people who argue that Standing Orders 78 is not law, must remember that then President alone can remove the Chief Justice according to the 18th Amendment. But the President was not ready for such a move.

We are bound by the order of former speaker Anura Bandaranaike. After analysing Court Orders of the UK, he decided notices or stay Orders cannot be issued against the proceedings of Parliament.

In USA an inquiry is held by the Senate and then removed from the post. In UK just a motion is required. No inquiry or witnesses. If this system is fair to be followed in powerful Western countries, how does it become unfair just for Sri Lanka?

The PSC worked clearly under the Standing Orders. There were many charges. One is the Trillium deal. Shirani Thilakawardena gave a statement to the PSC on the conduct of Shirani Bandaranayake during this matter. For three years, the case was proceeded under Shirani Thilakwardena and they formulated a creative legal procedure in this regard.

But then Dr. Shirani Bandaranayaka took over its hearing. Shirani Thilakawardena had given an order that any asset belonging to Trillion can not be sold without the permission of the Court. But knowing it, she had done this after negotiating with Janaka Ratnayake while also taking a discount of Rs. 1.6 million. why had she taken over a case with regard to a matter she had an interest?

She had not sent the annual declaration of assets and liabilities for several years. She should have behaved more responsibly.

Her husband is a suspect in relation to legal action and Commission to Investigate into Aligations of Bribery and corruption inquired into this matter. Law should be applied properly. It is not ethical for her to hold the position anymore considering the charges of misbehaviour of her husband. An inquiry into his was initially requested by the Opposition and we carried forward that proposal.

Child Development and Women Affairs Minister Tissa Karliyedda seconded the motion.

Joseph Micheal Perera (UNP): The future generations who read the Hanzard of today's debate will decide whether this move is correct or not. There were 14 charges initially. Only 5 of them had been probed. Parliament approved the committee to investigate all 14 charges.

Petroleum Industries Minister Susil Premajayantha: The relevant documents pertaining to all 14 charges were received by the PSC. After considering them, the PSC has announced its opinion on the charges 1-5 as well as 6-14. So we have done our task duly.

Joseph Micheal Perera Continues: This report is an incorrect report and it cannot be accepted. I also like to query whether the 117 members who signed the motion had actually seen the charges or they just signed on a blank sheet. The President himself appointed Shirani Bandaranayaka as the Chief Justice. I would like to know how the 14 charges were investigated. The Opposition members who represented the PSC did not receive adequate time to look into the witnesses and other documents. I was not a member of the PSC. But these are serious facts.

External Affairs Minister Prof. G.L. Peiris: Who has the power to remove judges of Superior Courts? The constant practice all over the world is to rest this power to legislature. In USA, the Senate has the power to do so and in the UK the House of Lords has the power. The practice in this regard is to vest this power to the legislative organ of the country. However, Sri Lanka violating the accepted norms issued a Writ of Certiorari.

We have to consider how flawed this judgement is? The constitution states "Parliament shall by law or Standing Orders". There is a clear option for Parliament. Twenty nine years ago in 1984 Parliament of Sri Lanka in its wisdom decided 'not legislation but Standing Orders.'

In the Supreme Court determination it stated "Parliament should act only by law and by law alone". How can this be clarified according to the 107(3) of the Constitution.

There is clear difference between interpretation and legislation. An interpretation does not go as far as to delete or expunge a word used in the Constitution or any statute. The Court has to recognise that there are two options. The Court cannot exclude one option. The Court cannot rewrite the law. The law-making function cannot be executed by the Judiciary. It is the power given to Parliament.

The Court has usurped the powers and responsibilities related to Parliament. This Supreme Court judgment has errors. The PSC report only have findings and it has not given a final decision. The findings of the PSC is subject to confirmation and approval of two authorities. The Parliament and the President, The Supreme Court determination says the presentation of the motion to the President is an inevitable consequence.

But this is not correct. Parliament can reject it entirely or in part. The reasoning of the Supreme Court determination is absolutely flawed. The Supreme Court of Sri Lanka came out with a judgment, I am sorry to say so but, that is not worth even as the paper it is written on.

The statement of the Court of Appeal ends as "this Court has no alternative.." This shows that the Court of Appeal has no liking on what it is doing. The hands of the Court of Appeal are tied by the Supreme Court. The Supreme Court has done an unpardonable encroachment on the powers of Parliament.

Until this no Court has dared to touch Parliament. Parliament is immune from the actions of the Courts. This privilege has been as called for the first time in the legal history of this country. A Writ of Certiorari was issued for the 1st time quashing the proceedings of Parliament.

What has happened not only contravenes the law but also affects the rights of the future generations of legislators.

The Standing Orders were used by previous PSCs and there was no word against them. Under the guise of interpretation, the Court should not be allowed to quash the Parliament proceedings. This was a lawful and proper proceeding which has been unjustifiably asserted by Court by acting entirely outside their jurisdiction.

Deputy Speaker Chandima Weerakkody takes the Chair:

M. A. Sumanthiran (TNA): I have dressed in black coat and black tie because it is a black day. Prof. G.L. Peiris criticized the Supreme Court stating that it has overlooked the word 'or' in its interpretation. But this is not true. The Supreme Court has carefully dealt with the matter. It is wrong to say that the Supreme Court has not read the word 'or'. But instead, it has thoroughly gone thorough the Constitution and has come to decisions.

The Supreme Court in its interpretation has clearly stated why the word 'or' in the phrase 'by law or Standing Orders is used'. We have to stand by this interpretation. There must be an independent judiciary. The whole world is looking at what we are doing today.

Arundika Fernando (UPFA): The innocent Tamil people were those who suffered very much from the brutal terrorism of the LTTE. During that period the independence of Judiciary was threatened. Those who talk of the independence of judiciary today did not talk a single word when the LTTE maintained a terrorists' Court.

At a glance we can see that it is an offense to take discounts from the property of the Golden key case according to a division by former Chief Justice Sarath N. Silva but Dr. Shirani Bandaranayaka has got discounts for her sister when a house from Trillium was bought. However, if the President can be removed according to the Constitution through Parliament why can't it remove a public servant from his/ her post.

Akila Viraj Kariyawasam (UNP): The PSC should be independent. But it was not independent. The Constitution is violated and sometimes the Standing Orders are violated. So where is this government leading? When a single person gets excess amount of power, he acts in a negative manner as a dictator.

can we expect law and order today? The UNP Governments never influence Court, Magistrates or Judges. The people expected a peaceful country after the terrorism was eliminated.

Susil Premajayantha (Petroleum Industries Minister): Akila Viraj spoke of Montesque and 3 organs of a state. But his leader, the Opposition Leader said that there is one organ that is the people's sovereignty. He said that on November 29, 2012.

The legislature has the power to investigate and report.

Deputy Chairman of Committees Chandrakumar Murugesu takes Chair.

When members moved an Impeachment Motion the Speaker has no choice other than to appoint a Parliamentary Select Committee. This reports is of 71 pages and from there to 1,367 pages are the related documents. The others are verbal evidence.

The first charge has two sections. According to it she has bought a house from Trillium Residencies for her sister. She took over that case with a Bench chaired by her. According to the SC Court order delivered earlier that no property of Trillium Residencies should be alienated without the permission of the Supreme Court. The property should be alienated after advertising and should be given to the highest bid.

However, it was not advertised or given to the highest bid. But the documents submitted by CJ has omitted that the part, "highest bid" and "taking the permission of the Supreme Court."

She has deliberately omitted them. If a lawyer did such mistake he will be removed from the profession. The minutes has that a discount was given when the house was sold. The minutes has it that it was given, as it was sold to the sister of CJ. We have revealed all of them, but nobody, has considered these facts when they protested. The same mistake is enough to impeach her.

The first letter by the Neelakandan Associates has dropped the Hon. post when they wrote the name of CJ. It said, that CJ only dealt with NDB. Later she came before PSC. When Nevil Samarakoon was brought to parliament, it was not like her, he got down at the gate of Parliament.The Neelakandan Associates thanked the PSC when they came first. Lakshman Kiriella also agreed we could proceed under Standing Order 78(A).

Finally I state that when Impeachment Motion was moved against Nevil Samarakoon nobody went before Courts for interpretation or for writs.

But those who worked against us during the period of Humanitarian Operation have put the CJ into labyrinth of chaos. Two days before a cartoonist of a newspaper drew a cartoon about CJ for the first time in history. It is not in who put this position to this level.

Karu Jayasuriya (UNP): Justice Nevil Samarakoon was not found guilty. He retired from his post.

The Legislature, Executive and Judiciary maintained with a balance, but it changed in 2005.

Very recently certain Acts were introduced violating the constitution.

It is not the CJ that was humiliated, but the judiciary.

The House was adjourned until 1.30 p.m. today.

No reason to postpone debate - Speaker

Sandasen Marasinghe and Disna Mudalige

Speaker Chamal Rajapaksa yesterday observed in Parliament that he does not see any reason to postpone the debate on the Parliamentary Select Committee Report on the charges in the Impeachment Motion against Chief Justice Dr. Shirani Bandaranayake and allowed to commence the debate stating that if the members did not have adequate time to scrutinize the report, they could have raised the matter at the Party Leaders' Meeting that held previously.

He made this observation yesterday delivering his decision after the debate took place following the request by Opposition members to postpone the debate for a month. The debate lasted for more than one hour and after the submissions of both Opposition and Government members the Speaker suspended the House for 10 minutes at 2.10 p.m. The House resumed at 2.35 p.m.

Speaker Chamal Rajapaksa allowed to continue the debate on the report.

The debate took place on the request to postpone debate on PSC Report is as follows:

John Amaratunga (Chief Opposition Whip): So far the printed report of the Parliament Select Committee was not given to us or the members. So we request you to grant another one month period to take up this report to debate.

Speaker Chamal Rajapaksa: The report was tabled on December 8. Now one month has lapsed. It was directed to print. The report has been received by the Government and Opposition members.

John Amaratunga (UNP): The printing of the PSC report has been completed on December 17. We received the report only on January 8. So I request you as one who always deliver just decisions to grant us another one month period to study this report before the debate on the PSC report.

We can't accept that the report has been tabled when it was sent to the Pigeon Hall in library.

Ranil Wickremesinghe (Opposition Leader): Today the Parliament sit in Judicial capacity. There has been a presentation of the PSC report. The leader of the House requested to print it.

The tabling of the report is to keep it on the tables of the members. But the tabling has not taken place. Whatever you do has to be valid if not others would say it is not valid.

The Parliament is Supreme and we have to follow the law.

Nimal Siripala de Silva (Leader of the House and the Irrigation and Water Resources Management Minister): We held two Party Leaders' Meetings on this matter and nobody raised such an issue.

However, after presentation of the report in Parliament, the same can be taken for debate.

Anura Priyadarshana Yapa (Environment Minister): According to the Standing Order 78(A)1 the report of the Parliament Select Committee cannot be taken up for debate before the lapse of one month since it is presented to the Parliament.

Dilan Perera (Foreign Employment Promotion and Welfare Minister): The report can be taken up for debate after one month lapse of its presentation in Parliament. It was presented on December 8 last year.

It was the Parliament that directed to print this report. So it was presented to Parliament a month before.

Lakshman Kiriella (UNP): If it is so, we should have received the report on December 8.

Joseph Michael Perera (UNP): We have to debate after scrutinizing the report. The PSC Chairman has presented it in Parliament. We don't know its content. So grant us one month period to study the report.

Susil Premajayantha (Petroleum Industries Minister): Nothing can be done until one month lapsed after presentation of the PSC report to the Parliament according to the Standing Orders. We haven't done anything.

Ravi Karunanayake (UNP)

We did not receive the report

Speaker Chamal Rajapaksa: If the members are interested they could have taken the report from their lockers in library. The reports have been received by the offices. Why didn't you raise them at Party Leaders' Meetings?

I direct the Secretary General of Parliament to find out if the members have not received the PSC reports.

Tissa Attanayake (UNP): I received the report on January 08.

Dinesh Gunawardena (Chief Government Whip and Water Supply and Drainage Minister): The PSC has only to report it and it was done duly on December 08. The Party Leaders' Meetings were held twice thereafter and decided to take up this mater for debate. But now they attempt to postpone this mater deliberately.

Ranil Wickremesinghe (Opposition Leader): Every document has to be tabled. We can have different views. But the matter here is what is tabling and what is reporting.

Arundika Fernando (UPFA): According to Standing Order 78 (A) it has to be reported to the Parliament. It does not say has to be tabled.

Anura Kumara Dissanayake (DNA): At the Party Leader's Meeting we clearly said that this report should not be taken up for debate.

Speaker Chamal Rajapaksa: According to this document all the members who spoke at this debate have taken their copies of the PSC.

S. Sumanthiran (TNA): According to the minutes of the Party Leader's Meeting on January 7, Ravi Karunanayake has clearly stated that he is not willing to hold this debate on 10 and 11 of January.

Janaka Bandara (UPFA): According to Standing Orders 78 (A) 1 to 6 the one month period has been given for the PSC to continue the investigation on the charges.

Speaker Chamal Rajapaksa: I suspend the House for 10 minutes to consider the submission made by members before I deliver the decision.

The House resumed again at 2.35 p.m.

Speaker Chamal Rajapaksa: So far all has taken place according to the Standing Orders.

If the members maintain that the time needed to study for PSC report, they could have raised it at the Party Leaders' Meeting.

They haven't done so. So I don't see any reason not to commence the debate. So that I permit to commence the debate.

UNP vote against impeachment resolution:

Tantamount to approving corrupt administration of justice - Rajitha

CHAMIKARA WEERASINGHE

The decision of the United National Party(UNP) to vote against the impeachment resolution against Chief Justice Dr Shirani Bandaranayaka, is tantamount to approving corrupt administration of justice, Fisheries and Aquatic Resources Development Minister Dr Rajitha Senaratna said yesterday. He said the UNP has disregarded charges of misbehavior and incapacity leveled against Chief Justice Dr Bandaranayaka, that led to the materialization of her impeachment as with their decision to vote against the Parliamentary Select Committee findings of the charges concerned.

"What really matters is the charges. The process of impeachment is a secondary concern," the minister pointed out.

"Nowhere in the world has the judiciary has issued writs against Parliament, except in the case of the impeachment of Chief Justice Dr Bandaranayaka," explained Dr. Senaratna.

"Moreover, it has never been the legal tradition of English law, which is followed in the country, to issue writs on Parliament, "he said. "It is not in the behavioral standards of common legal practice of British law,' he said.

"On the contrary, there has been cases, where British judiciary has issued warrants for the arrest of some persons who had been to Courts to get writs on Parliament. They were held in custody for contempt of Parliament, because it is a punishable offense," he said.

"In the instance of ongoing impeachment, It is the Chief Justice who had gone to Courts to get writs against Parliament," he added.