Parliament

Parliamentarians have duty to protect Parliament’s supremacy - Minister Sirisena

Disna Mudalige and Sandasen Marasinghe

Speaker Chamal Rajapaksa presided when Parliament met at 1.30 pm yesterday. After the presentation of papers, the House took up the debate on the Impeachment Motion against Chief Justice Dr Shirani Bandaranayake for the second alloted day.

Health Minister Maithripala Sirisena: Today we continue yesterday's debate on the Impeachment Motion against the Chief Justice. This was a measure to safeguard the due respects and functioning of the Executive, Legislature and the Judiciary. During the war, the Opposition anticipated the collapse of the government rather than the defeat of the LTTE.

As Parliamentarians, we have a duty to protect the supremacy of Parliament. It is not in order, if any Member speaks demeaning the status of the House. The Chief Justice should have protected the respect and honour of her profession.

However, the Chief Justice acted with vested political interests. The UNP and JVP were behind the protests at the Hulftsdorp. The head of the Judiciary is the Chief Justice. The charges against her were serious and those make her unsuitable to hold the position anymore.

Lakshman Kiriella (UNP): We joined the PSC with an open mind. We were not partial to any side. We requested to open the PSC sittings to the media. But that did not happen.

The charges against the CJ were made by the government and it is the government's representatives who investigated into them. The government says that the PSC investigated the charges for 21 days.

The motion was brought on November 6. Until December 5, we did not receive any document pertaining to the investigations. We received the documents only on December 5 and the CJ received them only at 5.30 pm on December 6. She was asked to reply them at the PSC sittings at 10.30 am on December 7. The time was inadequate for both the Opposition and the CJ to go through the documents.

Human Resources Senior Minister DEW Gunasekara: The House has faced four impeachment motions after the 1978 constitution was passed. We meet today as a judicial body. After debating the investigation report we came to a decision.

The House has been unable to make a law with regard to the removal of Superior Court Judges for 35 years. Standing Order 78 pertaining to this was made only in 1984 when the impeachment motion against Neville Samarakoon was presented.

Nobody could see this gap in our legislation. The main responsibility for this must be borne by the legislature. Standing Order 78A was compiled and passed in Parliament hurriedly before the impeachment of Neville Samarakoon. This Standing Order is not 100 percent complete. During the impeachment of Neville Samarakoon the time period had to be extended four times. It was the first experience of an impeachment.

The request made by Speaker Anura Bandaranayake in his historic ruling on June 20, 2001 was to bring necessary laws and standing orders in this regard. Since 1984 what has the legislature under all regimes which were in power done? We have paved way for this crisis. We have neglected our responsibilities. As leftist parties, we once again pointed out the need to amend the Standing Orders when the impeachment against Chief Justice Dr. Shirani Bandaranayake was brought.

The Opposition members who represented the PSC could have presented a dissent report. Our debate today could have been more useful if such a report had been presented. The Opposition failed in performing its duties. This absurd Constitution of 1978 should be amended. The sovereignty should be vrested in the people.

Speaker Chamal Rajapaksa (in the Chair): I think some of the proposals of senior Minister DEW Gunasekara should be considered by the House.

Tissa Attanayake (UNP): When the Executive, Legislature and the Judiciary should have acted parallel to each other, each of them attempt to act over the other. The consequence of this will be instability and the government should be responsible for it.

Some question as to why we participate in this debate. We do not at any cost accept this report. We want to point out the lapses in the entire process and also that it is not legally valid. We cannot pass this resolution with a two thirds majority because this report is not legally valid.

Justice Minister Rauf Hakeem: The supreme law in the country, the constitution, was under stress for a few weeks. Seven writ applications were filed last month, all about the impeachment motion.

The charges were investigated by the Parliamentary Select Committee, against the Chief Justice. In the US the judicial power is jealously guarded by the Judiciary. But in the US an impeachment motion is heard by the Senate. In Sri Lanka the Supreme Court has forgotten these matters.

The Appeal Court has quashed the report of the PSC although it is not the procedure. However it is Parliament that gives judicial powers of the people to the Judiciary. But the court applies laws which has no base.

The court of Appeal can issues writs in line with the constitution. But how could it issue writs against Parliament? Nowhere in the world has a writ been issued against a Parliament. We are duty bound to protect and preserve the powers of Parliament.

S. Sridaran (TNA): The PSC that investigated the charges of the Impeachment Motion against the CJ has no judicial powers. We who impose laws, are breaking the law.

Deputy Speaker Chandima Weerakkody takes the chair.

Sometimes the law has been used against the Tamil people. The people in Sampur have not been able to go to their lands for 20 years. It is highly questionable if the law is maintained properly in the country. Students in Jaffna were arrested. They have no freedom.

National Languages and Social Integration Minister Vasudeva Nanayakkara: This is a decisive moment. In reality the question is if Parliament has power over the judiciary or if the Judiciary has power over Parliament. The people have vested power in the Parliament.

Those who say that the Judiciary has power over Parliament has betrayed the power of the people that has been vested in Parliament. Whatever procedure is applied by Parliament, courts say it is wrong. However, this matter has been used for political gains and the Opposition supports it.

The CJ has made statements to the media and said that the Executive has un-necessarily intervened with matters of the judiciary. That is a political statement. The Opposition does not consider the facts of the charges but speak of something else. They are trying to make the impeachment motion against the Chief Justice, an impeachment motion against the government. Chief Justices Neville Samarakoon, Sarath Silva and Wimalaratne accepted that the power of Parliament is supreme.

This is the first time that the supremacy of the Parliament in challenged to usurp its powers. This is a conflict between groups that stand against the sovereignty of the people and those who stand for the sovereignty of the people. However the group that stands for the sovereignty of the people will win.

Ajith Kumara (Independent): The question is which is supreme? Parliament or the Judiciary. The people are supreme. Does Parliament which says the people are supreme work in favour of the people? It is questionable. The move is to bring all the powers together.

Wijedasa Rajapaksa (UNP): The independence of the Judiciary is one of the great achievements of the people through the annals of history. The cardinal objective of the legislature is to protect the independence of the judiciary.

Deputy Chairman of Committees Chandrakumar Murugesu takes the Chair:

Dr. Shirani Bandaranayake has all rights that any person in this country has been guaranteed by the constitution. There have been enough persons in the world who were charged with concerted stories and were deprived of fair trials.

Construction, Engineering Services and Common Amenities Minister Wimal Weerawansa: According to Christian beliefs Eve was created from a rib bone of Adam. But if Eve was to say that Adam was created from one of her rib bones, what would happen to Christian beliefs? Parliament was created with the sovereignty of the people and the judiciary was appointed by it. Which is Supreme? We did not sit during the vacation of Parliament to discuss the matters of the PSC. But what happened during the court vacation? The Court of Appeal sat and imposed decisions and within one and a half hours judgment was given. Not a single question of the Attorney General is noted in the Judgment. Is it fair? The power of the judiciary has been exploited.

The standing orders pertaining to this procedure were formulated by the UNP. Now they say that it is not adequate. Knowing well the misdeeds of the Chief Justice, the Opposition claims that there are differences in the procedure.

The Chief Justice being more inclined to power devolution gave judgments in favour of power devolution. Her statements appeared on pro-LTTE websites and papers. There were charges against her husband.

The Commission to Investigate Bribery and Corruption inquired into these complaints. She should have known that it is improper to hold position when the court case of her husband was taken up.

The Opposition only claimed that they cannot agree on the procedure and that time allocated was not adequate. The CJ and the Opposition walked out. If the CJ was not guilty she could have remained throughout the procedure. While she was hearing the Golden Key case she paid money to get the Trillium Residencies house.

She had paid six million rupees on that occasion. Yet there were two orders in the case given by judges. She had acted against those orders. It that correct? Is it alright that she hears the case of her husband? She is now working with inimical forces of our country. She has her agenda to work with them.

There was a statement by the JVP on the internet on January 3, that the CJ will be removed forcefully. How does the JVP know this? They know that the CJ will not leave peacefully. They have designed the drama properly. The last scene in also well planned by them.

They are the people who are working against the country. For the first time in Sri Lanka and in the world, the Court of Appeal has given judgment against Parliament. This in a new law introduced. The lawyers who appeared for Lalith Kotalawala and wife Cecilia, also appearing for the CJ is a simple matter for the Opposition. Nobody should be allowed to touch the supremacy of Parliament.

Technology and Research Minister Pavithradevi Wanniarachchi: When a person is assigned to a particular position, he or she has to adopt progressive qualities to that position. It is the practice in relation to all professions. The CJ was once a lecturer. She has to maintain it.

When a case against the husband of the CJ was filed, people expected that she would resign. But she did not do so and it is against all ethics. She was appointed to the post as she had qualifications but proper conduct is necessary to remain in the position. We know that recently several Provincial Council members faced many problems in taking oaths as they had not declared their assets.

If a very good and knowledgeable teacher had bad conduct, she or he will be rejected. Be it the Trillium deal, assets issue or any other matter it is clear that the CJ should be impeached.

John Amaratunga (UNP): This debate will be written in the impeachment history. It will be mentioned that this regime crucified the independence of the judiciary. Today you can shout and humiliate the Chief Justice but a day will come that the people will say aloud that you were the ones who destroyed the independence of the judiciary.

We did not want to protect the Chief Justice. We wanted a fair inquiry. If the PSC had actually proved the CJ was guilty, we were even ready to vote in favour of the motion. But it did not happen in that manner. We stand for an independent judiciary.

Thilanga Sumathipala (UPFA): Today we debate on the report of the PSC investigations on the charges against the CJ. However, the Opposition without concentrating on the charges misdirected the attention of the House to other matters such as new laws and amendments. None of them spoke about the injustice caused to Golden Key depositors. This charge alone is very serious.

We regret that the Opposition wanted to shield her despite serious charges levelled against her. We have no doubt of the PSC findings that charges numbers 1,4 and 5 have been proven. There are visible facts and figures to come to conclusions. I think she should be removed from her post as soon as possible.

Deputy Speaker Chandima Weerakkody takes the Chair.

Sajith Premadasa (UNP): There are arguments as to who is supreme. As I have found out, the constitution is supreme. The Speaker gave a historical ruling on October 9, 2012. In that ruling he says that the power of interpretation of the constitution lies solely with the Supreme Court and that it is the interpretation of the Supreme Court that must stand.

Then why we are trying to violate the constitution deliberately today? We accepted the interpretations of the Supreme Court at all previous occasions. Then why do we not agree to the Supreme Court interpretation on Standing Order 78A.

Power and Energy Minister Patali Champika Ranawaka: Many speak about three pillars of the state, namely the Executive, Legislature and the Judiciary. This is a western concept that we have embraced. We have to interpret these concepts to suit our own country. Only the Executive and the legislature are appointed by the people through democratic elections.

The sovereignty of people is represented in those two organs. If one speaks about the independence of the judiciary, it must not go beyond the sovereignty of the people. Many asked why a law was not formulated instead of the standing orders.

If a law was formulated and then challenged by any individual before it was passed in Parliament, it has to go before courts. Then the Supreme Court gets the opportunity to formulate the procedure on how their judges could be removed. That is why a standing order was effected instead of a law.

Unais Farook (UPFA): It is the constitution which is supreme. According to clause 102 of the constitution when Supreme Court judges or Court of Appeal Judges are charged for misbehaviour or incapacity, Parliament has the powers to remove them.

It is this due process that we follow today.

Fisheries and Aquatic Resources Minister Rajitha Senaratne: This is the second time that I speak during an impeachment motion. I spoke as an opposition MP when I was in the UNP. My stand on this mater is similar to what I said then. But I regret how my colleagues who spoke during that occasion in favour of the impeachment, now speak against it.

I do not change my policies according to the political party I am in. The transactions in the CJs bank accounts are questionable. There are serious questions with regard to her declaration of assets and liabilities.

When we compapre the charges against the former Chief Justice Sarath N. Silva we find that they are not one tenth as serious as the charges against the present Chief Justice.

Environment Minister Anura Priyadarshana Yapa: I want to draw attention of the House to a few matters. We commenced the investigation on the orders of the Speaker. Under the Standing Orders we have powers to conduct the inquiry. I cannot agree to the claim of the Opposition that there was no clear procedure in this regard.

Speaker Chamal Rajapaksa takes the Chair

The PSC maintained high discipline and we maintained due confidentiality. We summoned Shirani Thilakawardena for the PSC sittings and obtained a statement within the time frame we received. We reported to the House the maximum findings we could make.

The CS had not submitted her annual declarations of assets and liabilities in some years and certain bank accounts were excluded from the declarations she had submitted. We are representatives of the public and we should not fail in our duty. We have presented an accurate report and our sole intention was to remove a guilty official and bring in a suitable persons to the post.

Lakshman Kiriella (UNP): A point of order, Sir. The Order Paper should have an address to the President with the motion today. It is not there. What is placed in the order paper is the motion asking the appointment of PSC.

Technology and Research Deputy Minister Fazier Mustapha: There is no need for a separate address. The address to the President can be the original motion signed by the members.

Leader of the House and Water Resources and Irrigation Minister Nimal Siripala De Silva: In the motion signed by the members which is placed in the order paper it is clearly mentioned that the motion is brought for the removal of the Chief Justice and at the end of it, the address to the President is also included. I also mentioned it in my speech yesterday.

Joseph Michael Perera (UNP): What we say is that the Order Paper does not include the fact that she had been proven guilty of charges 1,4 and 5 and therefore she should be removed from the post.

Speaker Chamal Rajapaksa (in Chair): If the Order Paper does not contain the required contents, why did you all participate in the debate so far?

Deputy Minister Faizer Musthapha: We debated it for two days and now the Opposition MPs are saying that it is not placed in the Order Paper. How can they do so? I do not see any logic in it. This objection cannot be taken. Their joining in the debate itself is wrong then.

Ajith Perera (UNP): Parliament could only take up what is there in the Order Paper. After seeing this lapse Minister Siripala De Silva orally included it in his speech.

But it should be included in writing officially in the order paper. Therefore, without amending the order paper, a vote cannot be taken up in this regard.

Tissa Attanayake (UNP): According to clause 107 of the constitution a motion passed by a two thirds majority should be presented to the President. There is no such motion before us today.

Fisheries and Aquatic Resources Minister Rajitha Senaratne: Please read page 4 of the order paper. What is needed is clearly mentioned in this.

Speaker Chamal Rajapaksa (in Chair): I suspend the House for 10 minutes to look into this matter more carefully.

The House was suspended at 6.55 p.m.

Speaker Chamal Rajapaksa (In Chair):

According to the Standing Orders and the Constitution, a new motion cannot be moved again as one already has been moved for the same purpose. The motion has been moved under section 107 (2) of the constitution read with 107 (3) and 78 (A) standing order.

The objective of this motion is to submit a resolution to the President that the Chief Justice Dr. Shirani Bandaranayake should be removed from her office if one or more charges against her in the impeachment motion have been proved after investigating into the charges.

So it is very clear that the motion that has been moved is sufficient to submit the resolution to the President and the vote may be taken.

Nimal Siripala de Silva (Leader of the House and Irrigation and Water resources Management Minister: I request for division by name. The motion was passed with a majority of 106 votes.

The House was adjourned until 1 pm on January 22.

Opposition failed its duties by walking out – DEW Gunasekera

The Opposition members who represented the Parliament Select Committee (PSC) to investigate the charges against Chief Justice Dr. Shirani Bandaranayake failed to perform their duties by walking out of the PSC, Human Resources Senior Minister DEW Gunasekara said in Parliament yesterday. Participating in the debate on the Impeachment Motion, he noted that the Opposition representatives of the PSC could have submitted a dissent report if they disagreed or were not satisfied with the conduct of the inquiry.

He stated that the debate on the impeachment motion could have been more productive if such a report had been presented by them instead of walking out.

He also observed the need to amend the 1978 Constitution pointing out that otherwise the country would continue to suffer the consequences of these controversies, conflicts and confrontations between the Executive, legislature and the judiciary.

He observed that Parliament or the constitution is not supreme over the people. “We can claim to be supreme as representatives of the people who are sovereign. But under the 1978 Constitution our supremacy has eroded. Our powers have been substantially reduced. This is the root cause of the chaotic situation” he stated.

He also noted that in terms of Article 107 (3) Parliament is called upon to enact a law or standing order to provide for a process of an impeachment. He observed that standing order 70A was made hurriedly only in 1984 when the impeachment motion against former Chief Justice Neville Samarakoon was presented, adding that it is incomplete. “Although 35 long years have elapsed, this Parliament has failed to enact a law with regard to the process or procedure. As leftist parties, we once again pointed out the need to amend the Standing Orders, when the Impeachment Motion against the Chief Justice Dr. Shirani Bandaranayake was brought” he stated.