Is The Anura Bandaranaike Ruling Relevant Today?
Dr.Nihal Jayawickrama
The current debate on the parliamentary resolution to impeach the Chief Justice appears to be clouded, and sometimes distorted, by several misconceptions.
Is Parliament above the law?
It is believed in some quarters that Members of Parliament are above the law and are not subject to the jurisdiction of the Courts. This belief is entirely misconceived. It is probably due to a provision that was included in the 1972 Constitution which read as follows:
“30. No court or other institution administering justice shall have power or jurisdiction in respect of the proceedings of the National State Assembly or of anything done, purported to be done, or omitted to be done by or in the National State Assembly.”
That provision was included in the context of the National State Assembly being “the supreme instrument of state power” under the 1972 Constitution. There is no provision similar to Article 30 in the present Constitution. Under the present Constitution, Parliament does not enjoy that status.
Is the Anura Bandaranaike ruling relevant today?
The ruling given by the late Speaker Anura Bandaranaike on 20 June 2001 is now being recited, almost like a mantra that would shield Members of Parliament from any intrusion by the Judiciary. On that occasion, the Speaker had received notice of a resolution signed by the requisite number of Members of Parliament from the ranks of the Opposition. They sought the appointment of a Select Committee of Parliament to inquire into a complaint of misbehaviour against the then Chief Justice Sarath Silva. The Supreme Court made an interim order that sought to prevent the Speaker from dealing with that resolution until the Court had heard and determined a fundamental rights application filed before it. Speaker Bandaranaike ruled that the Supreme Court had no jurisdiction to issue the interim order, and therefore he had no legal obligation to comply with it. He relied on section 3 of the Parliament (Powers and Privileges) Act of 1953 which stated that:
“There shall be freedom of speech, debate and proceeding in Parliament and such freedom of speech, debate or proceedings shall not be liable to be impeached or questioned in any court or place out of Parliament”.
It was Anura Bandaranaike’s view that the Speaker was obliged to appoint a Select Committee upon receiving a duly signed resolution, and that that was a “proceeding” of Parliament which could not be questioned in any court. In fact, section 3 protects only the “freedom” of speech, debate and proceeding. He was probably correct in reaching that conclusion, since the regulation of parliamentary business is a matter within the Speaker’s legitimate province. A tribunal with power to give a binding and authoritative decision had not yet been established. The interim order of the Supreme Court was, therefore, perhaps premature.
The issue today is one that is completely different to that dealt with by Speaker Anura Bandaranaike. There is now before the Court of Appeal an application by the Chief Justice for a writ of certiorari to quash the “decision” of the Select Committee. These findings affect her legal rights. The Constitution has vested the Court of Appeal with “full power and authority” to inspect and examine the records of any institution or person, and to grant and issue an order in the nature of a writ of certiorari quashing any decision that is contrary to law. A decision may be contrary to law for a variety of reasons: the decision-making body may have suffered from bias; the principles of natural justice may not have been observed, the decision-making body may have misdirected itself on the law or on the facts. Every individual living in Sri Lanka has the right to seek judicial review of any decision that adversely affects, or is detrimental to, him or her.
