Dr Jayantha de A. Guneratne PC
During
the recent controversies on the impeachment of the
Chief
Justice of Sri Lanka, the view has been taken quite strongly by
parliamentarians of both the government and the opposition that the orders of
the
Supreme
Court and the
Court
of Appeal (S.C.Reference No. 312012/C.A.(Writ) Application
No.35812012, 01.01.2013, 07. 01. 2003) issued against the proceedings of the
Parliamentary Select Committee which inquired into the impeachment, is an
affront to the supremacy of Parliament. This short reflection is an attempt to
deal with some of these fundamental misconceptions.
Constitutional
culture in the British tradition
It
must be said that in England, when the supremacy of Parliament was firmly
established at the turn of the 17th century through an alliance of
the lawyers and the judiciary, this was done to overcome the authority of the
Monarch. An inevitable consequence of that was the entrenchment of the
Independence of the Judiciary through the concept of the Separation of Powers.
Even in regard to laws passed by Parliament thereafter, a convention that had
been built into British Constitutional Law is not that the Judiciary cannot
review legislation but that it will not. Such is the constitutional culture that
invests the British legal tradition. These are matters that anyone who has even
a nodding acquaintance with British constitutional history and law, as revealed
by academic authorities such as S. A. de Smith, Hood Philips etc. in their
writings, would be aware of.
Sovereign
power of the people
In
contrast, taking the Parliamentary history of Sri Lanka, after independence
under the Soulbury Constitution through 1946 to 1948, parliamentary supremacy
had never been established as the predominant characteristic of that
Constitution. However, this concept came to be established under the 1972
Constitution when in Article 44, the National State Assembly
(Parliament) was made the supreme instrument of state power.
Yet
what is important to note is that this reasoning was unequivocally departed from
by the present Constitution (1978) through the introduction of the concept of
sovereign power of the people (Article 3). This was made a justiciable
provision by virtue of Article 83, prompting the Supreme Court
in reported cases to note that, unlike under the 1972 Constitution, there were
limitations on the powers of Parliament. This meant in brief that the powers of
Parliament were confined to the legislative power to pass laws, which clearly
goes against an argument that, the predominant characteristic of the present
Constitution is “the Supremacy of Parliament”
The
two orders of the courts
Taking
this argument further in the practical context of the two orders of the Supreme
Court and the Court of Appeal in issue, it must be said that there is nothing to
prevent Parliament in the exercise of its legislative power, under Article 75 of
the Constitution, to introduce a Bill, conferring power on the Speaker to
constitute a Select Committee of Parliament to investigate and report on any
alleged misbehavior or incapacity of a Superior Court Judge. This is subject to
such a Bill being determined by the Supreme Court as to its constitutionality,
having regard necessarily to Article 4(c) of the Constitution. For that reason,
the Supreme Court may well hold that a 2/3rd majority in Parliament
as well as a referendum of the people would be required.
Relevantly,
the Supreme Court in its aforesaid order, determined that, “it is mandatory for
the Parliament to provide by law the body competent to conduct
the investigation contemplated by Article107 (3) …..” and that,
“matters relating to proof being matters of law, also will have to be provided
by law…..”
Standing
Order 78A deficient in many respects
It
must be noted in this context that Article 107(3) of the Constitution itself is
silent as to the said body competent to conduct an investigation and report as
contemplated by that Article. Therefore, it may be observed that the order of
the Supreme Court, stands fully justified within the confines of the
constitutional provisions in as much as a Select Committee appointed by the
Speaker under a Standing Order (78A) does not measure up to basic
conditions.
First,
such a Select Committee could not be regarded as such a competent body.
Secondly, the said Standing Order (in any event), has not provided for
matters of proof for the Select Committee to adopt and act upon rendering the
said Standing Order arbitrary, to say the least. Thirdly, (even though the
Supreme Court has not explicitly referred to the same) the joint act of the
Speaker and the Select Committee are obnoxious to Article 75 read with Article
76(1) of the Constitution.
Supreme
Court’s exclusive power to interpret
Meanwhile,
the view has been expressed by speakers on national television in Sri Lanka
during the recent month, that, the words “…… or Standing Orders” have
been rendered a dead letter by the said order of the Supreme Court. This view
ignores not only the fact that, it is the Supreme Court that is constitutionally
conferred with power to interpret the Constitution (under Article 125 of the
Constitution), but also the fact that the Court has given
specific reasons for the interpretation it has handed down.
However
the question may legitimately be asked then, have the framers of the
Constitution used the words “or Standing Orders” in vain? For the reason that,
Article 107(3) refers not only to law but
also, in the alternative to Standing Orders as well. To answer
that question it is necessary to once again look at the terms of Article
107(3) which decrees that ‘Parliament shall by law or by
Standing Orders provide for all matters relating to the presentation of such an
address, including the procedure for the passing of such resolution, the
investigation and proof of the alleged misbehavior or incapacity and the right
of such Judge to appear and to be heard in person or by representative.
Omission
of the legislature
As
noted initially, Article 107(3) does not refer
to and is silent as to the forum to provide “for all matters relating to the
presentation …… etc.” Once a proper body competent to conduct the investigation
under 107(3) is created, that body may then be in a position to provide for “all
matters relating to the presentation ……… etc” That body must necessarily
therefore be first established by law (Act of Parliament) which may well be even
a Select Committee of Parliament which would then be competent to make Standing
Orders in regard to the matters referred to in Article 107(3).
That
omission of the legislature in regard to reference to the forum in Article
107(3) of the Constitution has been supplied by the Supreme Court, (as the apex
court of the country) under Article 125 in interpreting the Constitution by
holding that this must be done by law and not by Standing Orders Thus, the words
“…..or Standing Orders’ in Article 107(3) have also not been used in vain.
To
recap, what was sought to be done by Parliament, could not have been done by a
Standing Order, which in any event does not conform to the terms of Article
107(3) of the Constitution. And Article 107(3) being silent on the body that
must be established to investigate and
report on a Superior Court judge’s alleged misbehaviour or
incapacity, such a body must be established by law and not by Standing Order.
Matters relating to proof by such a body must also be provided by law and not by
a Standing Order, which in any event, the impugned Standing Order 78(A) itself
does not provide for.
Certainly,
as practising lawyers, there are judgments that go against us. We may not agree
with such judgments wholesale. Yet, we are obliged to advice our clients in
pursuance of our forensic duty to say, that nothing more can be done when the
apex court determines on some matter.
An
unenviable grundnorm for Sri Lanka
The
consequent Court of Appeal judgment upon the Supreme Court ruling was that it
had no alternative but to issue a writ of certiorari to quash the finding and/or
the decision or the Report of the said Select Committee. Rightly, the
jurisdiction of the Court of Appeal vested under Article 140 was held not to be
subject to express ouster by the Constitution through a reading of the relevant
constitutional articles.
In
conclusion and reflecting on the unenviable controversies that this country’s
law and judicial institutions have been subjected to in recent months, it may be
said that though a Constitution is supposed to be the grundnorm (ie;
basic norm or order), had Hans Kelsen been asked to comment on the current
relevance of that theory, he would have been compelled to concede that he had
gone drastically wrong somewhere in propounding his theory, at least in regard
to the Sri Lankan situation.
*Dr Jayantha
de A. Guneratne, President’s Counsel
Australia's
Intelligence services linked a senior Sri Lankan government official who is
close to Sri Lanka's president Rajapakse as responsible for "authorizing
numerous boats in the past 10 months, fuelling the surge of asylum-seekers from
Sri Lanka that has threatened to overwhelm Australia's detention system," The
Australian reported Friday. While the complicity of this official in people
smuggling was widely known at senior levels of the Gillard government, Foreign
Minister Bob Carr during his visit to Sri Lanka in December never raised the
matter with the Sri Lankan government, the paper pointed out. 
Leader of the left front Vickramabahu Karunaratne said at present
government has formed a group name Bodubala Sena to conduct anti-democratic
activities in the country.