No provisions in SO to deal with violations of the Constitution – Dy Secy Gen of Parliament
He said this when contacted by Ceylon Today yesterday (20), with regard to the legal procedure that would be followed by the Parliament and the Speaker in relation to the case concerning former State Minister, Parliamentarian Vijayakala Maheswaran’s controversial statement made in July, concerning the Liberation Tigers of Tamil Eelam (LTTE), where according to a recent news report in a privately-owned national English newspaper, the Attorney General’s Department had recently communicated to the Speaker that it is possible for the Parliament to take action in this connection and that such action, if taken, should be under the Standing Orders of the Parliament.
Iddawela, who professed ignorance of any such alleged communication having taken place between the Attorney General’s Department and the Speaker, noted, however, that the particular speech by Maheswaran had taken place outside the Parliament, and that it is therefore the responsibility of the relevant institution to take civil and/or criminal action in connection to the matter, in accordance with the law, if the speech constituted a violation of the Constitution.
Meanwhile, the Bar Association of Sri Lanka (BASL) said that neither the Bar Council nor its Executive Committee have yet taken a decision regarding the course of legal action to be taken concerning Maheswaran’s statement.
Elsewhere, Media Spokesman of the Speaker, Chaminda Gamage said that the Attorney General is yet to inform the Speaker whether Maheswaran’s comments violate the Constitution. When inquired about recent media reports, Gamage said, “The Speaker wanted to know from the Attorney General, the latter’s opinion on whether Maheswaran’s claims violated the Constitution.
But, the Attorney General has not responded to the Speaker yet. He only informed that it is possible for the Parliament to take action against Maheswaran. But that is not what the Speaker expected.”
Maheswaran, speaking at a gathering in Jaffna on 2 July had stated that the aim was to revive the LTTE and that it should remerge and be strengthened in the North and the East if the residents of those areas wished to remain alive, free of fear and suspicion, and for their children to return home safely after school. She spoke in reference to the situation that had arisen in the areas as exemplified by an incident involving the sexual abuse and murder of a six-year-old girl.
The question is whether this is the only kind of action (a reference to the Parliament taking action as per the Standing Orders) that may be taken or whether the Attorney General will also file a case against her, President of the BASL, President’s Counsel Udaya Rohan de Silva said.
According to the Seventh Schedule of the Constitution, under Article 157A(1), regarding the prohibition against the violation of the country’s territorial integrity and Article 161(d)(iv), a citizen taking the oath cannot, “directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the (country’s) territory.”
If the said Constitutional Provisions are violated, legal action can be taken and there will be consequences, including prosecution for a criminal offence, which would upon conviction involve a jail term and in the case of a Parliamentarian result in the revocation of the MP status with the enjoyment of associated privileges also coming to an end.
According to Article 161(d)(iv), when the matter concerns an elected representative, in this case an MP who has taken, subscribed and made the particular oath and affirmation set out in the Seventh Schedule, in turn violating the said oath and affirmation, any person can then make an application stating this to the Court of Appeal, which is the Court of first instance in terms of jurisdiction in the instant case.
And if the Court makes a declaration in the affirmative, that in fact and in law a contravention has taken place, “the seat of such Member shall be deemed to be vacant with effect from the date of such declaration and such Member shall be disqualified from sitting and voting in the Parliament and from being elected or nominated to the Parliament for a period of seven years from the date of such a declaration.”
Further, as per Article 157A (3), upon conviction by the Court, subsequent to a trial on indictment, the guilty party would be subjected to civic disability (not entitled to civic rights) for a maximum period of seven years, and would forfeit their movable and immovable property other than such property as is determined by an order of the Court as being necessary for the sustenance of the person and his/her family.
