We Don’t Know In This Drama Who Judas Is Behind The Chief Justice

By Wijeyadasa Rajapakshe -January 13, 2013 

Wijedasa Rajapakshe PC - President BASL

Mr. Speaker,

This is for the first time in our parliamentary history, that we are debating an impeachment against a Judge of the superior court namely the Chief Justiceof the Republic. Whether it will be left as a grey patch or as a purple patch in our parliamentary history, I leave it to the posterity to decide.

Article 03 of our Constitution precisely and categorically states that in the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes powers of government, fundamental rights and the franchise. These have become a much-debated topic since the impeachment against the chief Justice is moved in the Parliament.

While the incumbent coalition government is vociferous in taking up the position that the legislature is supreme to the judiciary those who are learned in political science and fair minded people strongly demonstrate that the 3 pillars on which the temple of justice rests are equal within their scope and power. In the absence of evenness of the three pillars, namely the legislature, the executive and the judiciary, the golden shrine that rests upon them would collapse. The Golden Shrine denotes democracy.

There is no debate that people while exercising their franchise, repose their sovereignty in the hands of representatives in the Parliament on a contract basis for a limited period. Therefore Members of Parliament are only the custodians of the people and they are obliged to exercise legislative powers within the parameters of the Constitution. In the absence of checks and balances, objectives of democracy would be rendered nugatory and absurd.

That is the reason why in the 18^th century, French political philosopher Charles- Baron de Montesquieuintroduced the concept of separation of powers based specially on the system of Westminster Parliamentary democracy in the United Kingdom. During the period of British Colonial domination in this country, they had introduced a system based upon that concept, and it is well enshrined in the Soulbury Constitution as well. Even at present, Article 4 of our Constitution has given due recognition to the concept of separation of powers without any ambiguity, which is regarded as a rule by all jurists all over the world. Concentration of powers in one or in a few, always tempts to dismantle democratic structure and take a lead role towards a dictatorship. That is the reason why Lord Acton said, that;

“Power tends to corrupt and absolute power corrupts absolutely”.     Read More

The UNP Should Be Factored Out Of The Governance Struggle In Sri Lanka

By Springer -January 13, 2013 

We cannot deny that Sri Lanka is in a crisis at the moment. Even if the country does not meet the indicators of a failed state, it is as good as one.

Whatever impression the government would like to give, fiasco upon fiasco is mounting. if we go from the most recent – the illegal impeachment of the CJ, to the totally botched up case of Rizana Nafeek, the mess in the Judiciary before the CJ’s unfortunate fate, to the Z score, to the messed up education system at all levels, to the almost non existent implementation of an LLRC Action Plan, to all types of religious fundamentalism rearing its ugly head, to the increasing violence, the increasing cost of living, to the failed administrative system, to the over employment of graduates and resultant burden on the economy and the final nail in the coffin – the economic down turn.

The economic failures are most serious from the time of the removal of the GSP+ concessions.The country is on a steady economic decline, whatever the Central Bank would like to say. The real growth rate can only be estimated at best as an inflated one is given in the Central Bank Report. Foreign Direct Investment for real growth in enterprise does not seem to be there as most of the money received is invested in infrastructure. In fact the government is investing in infrastructure and external investment is limited to  Chinese assistance for infrastructure yet again and a few others lenders.The economy is also affected by the many strikes and bad fiscal management as evidenced by unhealthy investments and playing around with people’s savings such as EPF.

Let us say for the time being that citizens dream that  the government should correct itself eean at this stage and move on. May not happen, but it is one of the few possible roads ahead.

What is the UNP doing while the country is burning?

President Rajapaksa very successfully defends the impeachment process and the fact that the CJ has to go out. Citizens are made to believe that the Divineguma is the best thing that happened since sliced bread. In fact as found out in the process of a discussion with Heads of Civil Society Organizations today, many of them were unaware that the passing of the Divineguma Bill was not a cake walk for the government. That many amendments had to be made and a few clauses dropped

There has not been a single concentrated communication campaign on the part of the UNP to tell the public what is happening in reality. Citizens need information to make decisions. Citizens need to be made aware of the tremendous power that goes with their sovereignty.

Even during a talk show the UNP makes a very poor argument except for Harsha de Silva, Kabir Hashim,Rosy Senanayake, Ravi karunanayake, Sajith Premadasa and Eran Wickramaratne. But such events are  islolated  and not strategic campaigns that run with a theme and muti faceted communication tools and events to change the mindset of the polity.

So many demonstrations and marches were held both by the Government, Lawyers’ bodies, civil Society Organizations and Trade Unions mainly of the left. However, the UNP could not even mobilise people onto the streets once, for the past 3 months, while all this was happening.

So in the struggle ahead it might be more prudent for citizens to factor the UNP out and for professionals and other Civi Society Groups to take the lead. However bad governance is, still the government is effective though diabolical. The leadership of the UNP has become so ineffective that it is pulling back its own members from doing something progressive.

Many people’s struggles have been successful without an opposition, so let us think about a Civil Society led struggle in the months and years ahead.

‘Black Friday’ For Lawyers – ‘Good Friday’ For CJ? ‘Friday Forum’ Appeals To Pilate

By Elmore Perera -January 13, 2013 

Elmore Perera

Unbelievable? May be in the civilised world but certainly not in the Wonder of Asia! The primary duty of a law-enforcement officer is to act forthwith to prevent a breach of the peace, almost at any cost. It is said that “Good habits die hard”.  To prevent, what in his esteemed opinion was an imminent breach of the peace, the Speaker, a distinguished Police Officer of yester year, relying on the considerable legal knowledge he had acquired over the years boldly delivered ground – breaking rulings. He ruled inter alia that both the Supreme Court and Court of Appeal had erred by failing to recognise what he seemed to believe was, the immutable principle of “Parliamentary Supremacy” and had overstepped their authority by daring to restrict the powers of the Legislature of which he was the Head. He seemed either to have lost sight of the fact that all such emergency measures were subject to the scrutiny and review by the Judiciary or to have deemed it inapplicable to his exalted position as Head of the Legislature. Predictably, he was vociferously egged on by MPs on both sides of the House to actively pursue his valiant efforts to restore to Parliament a supremacy which had admittedly been explicitly extinguished and “buried” for 34 years after the current Constitution, was adopted in 1978. The culmination of his rash rulings was his purported validation of the PSC’s, finding of guilt of the CJ (which finding had been explicitly declared null and void by the Court of Appeal) and the overwhelming approval of such resurrected findings by the very accusers, in Parliament on “Black Friday”. On the unholy Saturday that followed the Editor of a local Newspaper stated that “it was more like a Good Friday for Chief Justice Shirani Bandaranayake”.

The Deputy Speaker stated that the “address” to remove the Chief Justice had already been presented to the President. The “Barbarians” at the gates of the Citadel of Justice were straining at the leash to complete the foul deed entrusted to them, (by ‘whom’ is anyone’s guess). The “rugged cross,” a plentiful supply of  “nails” the inscription, and even the “crown of thorns” were all ready, and waiting to be used by those who perhaps believed that they are on a lawful and patriotic mission of crucifying the CJ and thereby resurrecting the long dead and buried “Supremacy of Parliament”.

The recipient of the potentially disastrous address of Parliament, is a Senior Lawyer who consistently professes to respect the Independence of the Judiciary. His legal acumen, admittedly streets ahead of that of his elder sibling, the Speaker, will certainly reveal to him  that the Supreme Court interpretation re the validity of Standing Order 78A and the Court of Appeal  order quashing the PSC findings of guilt, preclude him from acting on a vote of mere Parliamentarians with little or no knowledge of the law, in respect of a purported finding of guilt, already authoritatively quashed by the Court of Appeal.

Through the good graces of his spouse, this President has been privileged to have two audiences with His Holiness the Pope. He must therefore surely know some, if not all of the gruesome details of what took place on the one and only “Good Friday”. He is presently in the position that “Pilate” was in, on that fateful Maundy Thursday.

The “Braveheart” Chief Justice has vowed to fight this injustice –even at the cost of her own life! There is no reason to believe that she would now waver.

Just as Pilate did then, the President can now choose to “wash his hands off” and give the green light to the barbarians, crouching at the gates, to crucify her on “Calvary’s Hill” – sorry, I mean on “Hultsdorp Hill”, – and appoint the Judas who betrayed her, or one of the several fawning Barabbuses available for him to choose from, to take her place.

Alternatively, he can abide by the rulings of the Courts, which any lawyer knows are valid and binding, and direct the Legislature to comply with the said rulings, and afford the CJ a fair trial – which, after all, is all that she has asked for.

Astute Politician that he is, the President surely knows that the appeal by the Friday Forum accurately reflects the current view of the Sovereign people, except perhaps the paid hoodlums who have certainly made their presence felt by blatant acts of thuggery with the blessings of the law-enforcement agencies, and also the beneficiaries of lucrative patronage appointments both within and outside Parliament.

How will he respond to this appeal? The future of our resplendent motherland will be determined by this one single decision of his!

We all wait with bated breath to see which particular dictate of his “conscience” he will finally follow. “Retribution” or “vengeance” –call it what you will – which follows with the certainty that night follows day, will be no solace to a bruised and bleeding nation. On this Holy Sunday most Sri Lankans will pray to their own God, if any, that he may be endowed with the wisdom to eschew bravado and exhibit exemplary statesmanship to save the nation from certain chaos and isolation from the civilised world.

*Elmore Perera, Attorney-at-Law, Founder CIMOGG, Past President OPA

Judiciary to experience a breakdown with appointment of a new CJ

Sunday, 13 January 2013

A constitutional legal expert said that there would be a breakdown in the judiciary if a new Chief Justice is appointed after sacking the current Chief Justice in an illegal manner.

The new Chief Justice would have to win the trust and confidence of a majority of the Supreme Court judges. There are currently 11 Supreme Court judges serving in the Supreme Court including the Chief Justice. The President has shown an interest in appointing Supreme Court judge Shirani Thilekawardena as the next Chief Justice. However Minister Basil Rajapaksa and several presidential advisors have proposed Supreme Court judge Sathya Hettige to the post. The President is also considering former Attorney General Mohan Peiris to the post as well.

Regardless of who is appointed to the post of Chief Justice, he/she would not be able to win the support of the eight remaining Supreme Court judges. Judges in the Court of Appeal, High Courts and other lower courts have already decided not to support the next Chief Justice. They believe that the neither the Chief Justice nor any other judge should be controlled by the government.

The Chief Justice is also the head of the Judicial Services Commission. It is the Chief Justice who is appointed in an arbitrary manner who would handle the promotions, transfers and taken disciplinary actions against the judges in the country.

Therefore, the entire judiciary would experience a breakdown if the judges around the country decide to ignore the Chief Justice.

It is tradition for the Bar Association of Sri Lanka to welcome the new Chief Justice. However, given the current scenario, the Bar Association would not be able to welcome the new Chief Justice. Hence, a breakdown in the country’s judiciary in the next few days would be inevitable.

...................................................................

Family corporation clear the path for countries to interfere SL

Sunday, 13 January 2013 

The general secretary of the United National Party made a press release today(13).

UNP said that The family corporation would clear the path for countries to interfere in Sri Lankan affairs at the UN Human Right Commission.

The measures were taken to remove of the CJ by the President and Govt is not only act- constitutional, its is traitorous act which betrays the war heroes, says the UNP.

The President has neither legal rights to dismiss the CJ from office or to appoint a new Chief Justice and since the Impeachment Motion to remove the Chief Justice, Dr. Shrani Bandaranayke was not duly passed in Parliament

The consequences of the Black Friday impeachment will be game changing

‘We Salute The Chief Justice For Her Courage & She Remains The Chief Justice’ – Lawyers Collective

By Colombo Telegraph -January 13, 2013

“The conscience of the nation and the BAR is disturbed & is in anguish-and will never accept the illegal and unconstitutional removal of the Chief Justice.  We have no doubt that in the annals of history, Chief Justice Bandaranayaka would be remembered as a judge who did not succumb to pressure and who held the scale of justice without fear or favour. We salute her for her courage, leadership and steadfastness in facing one of the most unreasonable and irrational inquiries ever faced by a person holding such an exalted office of the Head of Judiciary in a democratic country.  The Lawyers Collective categorically reiterates that Hon. Dr. Shirani Bandaranayaka remains the Chief Justice, notwithstanding being unconstitutionally removed.” says the Lawyers Collective.

Issuing a statement it says; “H.E President Mahinda Rajapaksa‘s purported letter of removal has been received by the Chief Justice. The Lawyers Collective states that this removal affects the very foundation of independence of the Judiciary, the Rule of Law and all basic norms of a working democracy.  The politically motivated process of removal of the Chief Justice was nothing but   a misuse and abuse of Constitutional provisions and Standing Orders.”

“The Executive and Legislature deliberately ignored the constitutional interpretation by the Supreme Court and the decision of the Court of Appeal quashing the decision of the impeachment report by the Government Members of the Select Committee of Parliament. With this impeachment, the Government of Sri Lanka has demonstrated that it will not respect the Constitution and the Judiciary. The manner in which the impeachment process was conducted, in and outside parliament, by the government, the state media and the government-sponsored goons leaves the country with unforgettable memories of a horror period in our history.” the Lawyers Collective further says.

The consequences of the Black Friday impeachment will be game changing

Groundviews

The Black Friday impeachment is another shameful day in the history of our country. The absolute majority in parliament obtained through dubious means has been used once again by this government to deny justice to the chief justice of our country and undermine the independence of the judiciary.

It is not a black day just for the judiciary. It is a black day for every single citizen of this country. In undermining the judiciary and the rule of law, the freedom and liberties that citizens of this country are born with, have been robbed through the tyranny of the parliamentary majority.

A year and a half ago when the administration brought an ad hominem bill to expropriate private property I said that democracy denoted by absolute majority rule was very dangerous and could destroy the liberties of citizens in the absence of safeguards to ensure justice, freedom and property rights. It was unfortunate that the judiciary, at the time, did not see the necessity to block its passage without giving a hearing to those individuals who were going to be victims of that unconstitutional action. The government applauded that decision. However, last month when the judiciary, in its accumulated wisdom, saw it appropriate to rule the Divineguma bill unconstitutional, the government was not willing to accept that verdict. The judiciary had suddenly checked the absolute power of the government. Using among others, a speech I had made six months ago seeking an investigation on her husband relating to a stock market transaction, the government decided to impeach the chief justice and worked backwards to meet its objective come hell or high water. Even though the judiciary determined that the entire process leading up to the impeachment was illegal and thus a nullity, the government using its absolute majority obtained through dubious means, made an address to the president for the removal of the chief justice.

The assumption is that the judiciary would now fall in line with the wishes of the government due to fear of reprisal. While the Black Friday Impeachment is another step towards achieving the objectives of this autocratic government by taking away the freedom and liberties of citizens I have the confidence that the judiciary would have the strength to stand up against the impending juggernaut.

As a member of parliament I am of the firm belief that the legislature has certain powers that it can exercise without the interference of any other institution. However, I am also of the firm belief that the no ruling party must ever use the majority it enjoys in the legislature to undermine the freedom and liberties that citizens of this country are born with. Consequences of the Black Friday Impeachment will certainly be significant and game changing.---Image by AP, courtesy The Hindu

Harsha de Sila, Ph.D.
Member of Parliament and Consultant Economist

Democracy mourns for judgment fled to brutish beasts

Sunday, January 13, 2013

As the sun went down this Friday on barebodied ruffians raucously celebrating Parliament’s spectacularly unjust impeachment of the country’s Chief Justice with crackers and kiribath, judgment fled to brutish beasts and Sri Lanka entered its darkest phase since independence.

This Government with its ineffectual ally, the main Opposition United National Party, could together boast of seemingly levelling a death blow at the last remaining bulwark of a defiantly rebellious judiciary. In truth, LTTE leader the late Velupillai Prabhakaran achieved in death through the monumental follies of ‘Dharmishta Sinhala’ leaders, what he could not accomplish in life.

The Government’s pyrrhic victory

Henceforth, in what manner are Sri Lankan judges supposed to preside over their courtrooms with dignity? In what way can lawyers advocate the law with heads held high, what will law teachers be able to teach in the classroom and how will analysts in good conscience examine Sri Lanka’s conformity with the Rule of Law?

A new and eagerly supine Chief Justice will be appointed during the coming days. But this will be a pyrrhic victory. With the Commonwealth and the world staring in helpless bewilderment at the ruins of a once proud judicial system, we have proved our unfitness for democracy in no uncertain measure. Reports of commissions on lessons learnt and reconciliation may now firmly be relegated to the dustbin.�

It is only a suicidal leadership which would have gone heedlessly down this path precisely when the State is being closely questioned in regard to accountability for mass killings of citizens and continuing abductions. This country is now entirely vulnerable to outside assaults. Nay, the leadership has invited such attacks, provoked them rather. We may expect the inevitable consequences therefore.

Responsibility lies on the President

And culpability therein does not lie at the foot of Parliament enthralled with the desperate antics of the Weerawansas, the Vasudeva Nanayakkaras and the GL Peirises nor with the feeble mewling of the opposition United National Party. Neither can the President’s brothers be blamed though some may still be beguiled into such foolishness. Rather, full responsibility for the abyss that we have fallen into, lies fairly and squarely on the shoulders of the Mahinda Rajapaksa Presidency itself.

This is the leadership which spurned the requests of the Mahanayakes of the main Nikayas while professing to lead a Dharmishta Government. This is the leadership which brushed aside passionate appeals made by professional bodies, the Catholic Church, business and employment chambers and concerned citizens to step back from the precipice of the impeachment.

This is the leadership which promotes political opportunism, thuggery and greed, exposing Sri Lanka to the world as lacking common decency let alone conformity to law. This is the leadership that took root in our midst much like a monstrously destructive growth, first with the 18th Amendment and then with the spreading of tentacles into every area of government.�

It is ironic therefore that erstwhile government propagandists who cheered the demise of the 17th Amendment have now apparently found a belated conscience, if it may be termed as such, to break ranks with the Government. Their dissent however is as much in vain as other reasoned appeals. The whip of dictatorship has been cracked over the heads of all Sri Lankans. This is the final abandonment of decades of even dysfunctional democracy.

Should the judiciary not have challenged the Parliamentary Select Committee (PSC) inquiring into the impeachment? So, was the Chief Justice supposed to stay mum when patent injustice was meted out to her? This was not a run of the mill PSC. Rather, it was one tasked to enter into a finding of guilt notwithstanding puerile arguments by parliamentary officials that no such findings were entered into. The serious consequences that follow upon PSC findings regarding the constitutional right to hold judicial office underlined the ethos of the recent Supreme Court thinking that Standing Orders cannot be used to impeach a judge. The issuance of a writ of certiorari by the Court of Appeal quashing the purported findings of the PSC in issue was in logical consequence thereof. What could the judiciary have done otherwise if it had a shred of self respect?�

Digging of the judiciary’s grave

An honest audit still needs to be undertaken as to the manner in which the agonising destruction of Sri Lanka’s judicial system has taken place. What we saw on Friday was the mere culmination of what commenced in 1999 when a judge of the unimpeachable calibre of the late Justice Mark Fernando was bypassed for the office of Sri Lanka’s Chief Justice with Chandrika Kumaratunga’s appointment of former Attorney General Sarath Silva. As is acknowledged with appropriate gravitas by many only now with hindsight, the grave of Sri Lanka’s democracy was dug then, well in preparation for the virtual coffin of the judiciary that would be lowered into it more than a decade later.�

The few angry voices in the legal community at that time were marginalised as irrepressible idealists or accused of pursing an agenda for individuals. Indeed with the vastly honourable exception of former Supreme Court judge CV Vigneswaran, judges themselves stayed silent as the Court went its political way during the long years that followed. Academics refrained from critiquing clearly politicised judgments in fear of contempt of court. As Chief Justice succeeded Chief Justice, each willingly or forcefully succumbing to political dictates, public respect for the judiciary was severely eroded on the part of the majority as well as the minorities.

Consequentially when the inevitable frontal attack came on the Supreme Court during this Presidency provoked by minimal judicial resistance to an executive juggernaut, there were no powerful intervening barriers to break the free fall. The Bench and the Bar woke up after its decade long slumber but it was a classic case of too little, too late even though the sheer force of the belated reaction took many by surprise. Unsurprisingly, this Presidency dismissed even its one time supporters from the legal community with singular contempt.�

Start of popular resistance to a corrupt regime

That said, in this apocalyptic post-impeachment period, we need to look beyond the fact that the Sri Lankan judiciary was fatally stabbed this Friday and left to die bleeding on the road. Perhaps a brighter and better moment may yet dawn.�

Scarcely three months ago, a senior ‘silk’ who (before personal interests and ruder ambitions blunted its edge), arguably possessed one of the finest minds in public law in the country asked jocularly as to why I continue to condemn a ‘popular government’? Now as the lawyers revolt, the judiciary is eviscerated, judgments of the superior courts are thrown to the gutter, illiterate politicians along with dentists interpret the Constitution and common ruffians abuse the Chief Justice, could this same question be posed in quite that same way, even jestingly? Where pray is the popularity of this government, at least among the professionals?

The leadership may not care for what it dismisses as the uselessly educated vote. Yet as history shows us, it is precisely at the highest point of political arrogance that the downfall begins, sometimes swiftly and sometimes gradually. Right now, with the memory of government thugs dancing wild eyed before the Chief Justice’s residence and hurling unspeakable filth at her, such optimism may be impossible to conceive. Yet the discarding of a horrendous Constitution along with an administration rooted in injustice may still come to pass.

This is the common objective that the great collectivity of the Sri Lankan citizenry, in cities, villages and towns notwithstanding caste, creed or race, need to work towards in solidarity and profound humility.

Parliament Is Not A Law Free Zone

By Reeza Hameed -January 13, 2013 

Speaker Chamal Rajapaksa

It is provided in Art 74 (1) of the Constitution that parliament may by resolution or standing order provide for “the regulation of its business, the preservation of order at its sittings and any other matter for which provision is required or authorized to be so made by the Constitution.”

Parliament is permitted a degree of self regulation regarding the conduct of its business. Parliament has got its remit for self regulation from the constitution and not because it is sovereign or some notion of parliamentary privilege.

Parliament does not have an inherent right to regulate its own procedures or to declare its privileges and immunities.  All its privileges are ultimately derived directly or indirectly from the constitution. Parliament cannot by standing order exceed the powers given to it by the Constitution in the guise of asserting its privileges or regulating its proceedings.

Standing orders are not law

According to parliament’s website:

“The Standing Orders of Parliament are the agreed rules under which procedure, debate and the conduct of Members in the House are regulated. The main purpose of the Standing Orders is to prescribe the procedure for the functioning of parliament in an orderly and meaningful manner. The Standing Orders have the status of rules under the Constitution of the Democratic Socialist Republic of Sri Lanka.”

Standing orders regulate the behaviour of members of parliament, the way Bills are processed and debates are organised. Standing orders are necessary for the orderly conduct of business in parliament just as rules are required for any association of people who gather to conduct business. In the absence of standing orders, it would be difficult to maintain order and decorum in an assembly consisting of 225 members. Standing orders also describe the procedures for the passage of a Bill through parliament before it becomes law.

As standing orders derive their authority from the Constitution, no standing order can be inconsistent with any of its provisions. Article 74 (1), cited above, begins with the words: “(s)ubject to the provisions of the Constitution”.

Standing Orders are not law. ‘Law’ is defined in the constitution to mean any ‘act of Parliament’. Standing orders and resolutions adopted by parliament do not fall into this category of law and have no binding effect outside parliament. It is law alone that is normally not amenable to judicial review. The Speaker is responsible for the interpretation of the standing orders but there is nothing either in the Constitution or the Standing Orders to say that a Speaker’s ruling cannot be reviewed by the Supreme Court.

Standing Order 71 declares that the Speaker is responsible for the observance of the rules of order in parliament and his decision upon any point of order “shall not be open to appeal and shall not be reviewed by Parliament except upon a substantive motion made after notice”. It does not oust the jurisdiction of the Supreme Court to review the validity of a standing order. Even if they did, it would not matter.

In the well known case of Stockdale v Hansard [1839], it was decided that a resolution of parliament had no legal effect. This principle was affirmed in another leading case, Bowles v Bank of England [1913], where it was held that the deduction of income tax from dividends was unlawful because it was based on a resolution of parliament.

The only exception made to this rule is the one made in respect of the resolution passed by parliament under Art 81 (3) to expel a member of parliament following a recommendation made by an independent commission of enquiry. There is a point worth noting here. Even when it concerns the removal of one of its own members, parliament cannot do so by relying on the notion that it has exclusive cognizance over its own affairs, and it must await the findings of an independent enquiry against the member in terms of Art 81 (1) before it could proceed with a resolution to expel a member.

In any event, despite the ouster clause, arguably, a resolution to expel a member from its ranks would be amenable to judicial review. Significantly, there is no clause in the constitution to prevent a president or a judge from challenging the validity or legality of a resolution to remove either of them. The 1972 Constitution had, in Art 30, a provision which expressly denied the courts the power or jurisdiction in respect of the proceedings of the National State Assembly. The 1978 constitution has no such provision.

Moreover, it is only the validity of a law passed by parliament that cannot be called into question by a court of law. The justification for this rule is to ensure finality in legislation and it has nothing to do with parliament’s privileges or it being sovereign.

Interpretation is a matter for the Courts

While it is the function of parliament to make laws, it is the function of the courts to interpret them. The meaning of legislation will have to be discovered from within the four corners of the law enacted by parliament. In the words of Lord Scarman: “We are to be governed not by parliament’s intentions but by parliament’s enactments”.

Once parliament has spoken through a statute it ceases to have any role in its interpretation. Parliament cannot instruct a court of law on how an act shall be interpreted in particular cases. It is also not permissible for the courts to request parliament to provide guidance on how a statute shall be interpreted.

Justice Singh, in his authoritative text on the Principles of Statutory Interpretation, states that a statute “cannot be explained by the individual opinions of the legislators, not even by a resolution of the entire Legislature. After the enacting process is over, the Legislature becomes functus officio so far as that particular statute is concerned…” The legislative process is exhausted as far as the particular statute is concerned. In reality, legislative measures which are introduced in parliament are drafted by officers in the Legal Draftsman Department who have a specialized knowledge in drafting legislation and are conversant with the rules of statutory interpretation.

Interpretation of the law is a judicial function. While lawyers and non-lawyers alike may try to interpret a law in order to understand its contents and determine whether and how it may affect them, its meaning can be declared authoritatively by courts alone. The Court’s interpretation is binding on everyone including parliament. Parliament does not operate in a legal vacuum. If parliament does not accept the interpretation placed by the courts, then the only course available to it is to amend the law by another act of parliament.

If parliament does not have authority to interpret even the law it has enacted, then on what basis can it be said that parliament – or the Speaker – has the authority to rule on the Constitution? In fact, Art 125 makes it abundantly clear that any question relating to its interpretation shall be the sole and exclusive concern of the Supreme Court.

The Supreme Court has ruled that Standing Order 74A is null and void, rendering it non-existent. Neither parliament nor the President can act on a report which was produced by a body of persons acting on the purported authority of that standing order. Eh nihilo nihil fit- nothing comes from nothing.

All the perfumes in Arabia did not sweeten Lady Macbeth’s hand, and all the votes in parliament cannot give life to the still born report of its select committee against the Chief Justice. It is hoped that the Supreme Court’s ruling on the matter would be respected even at this stage and parliament’s resolution to impeach the CJ is not acted upon.

*Dr. Reeza Hameed, a long-standing member of CRM, is an Attorney-at-Law with degrees from universities in Sri Lanka, the USA and UK. He assisted S. Nadesan QC in a number of historic constitutional and fundamental rights cases including the Pavidi Handa case, the Kalawana case, the Daily News Contempt case, and challenges to the banning of Aththa and the Saturday Review. When the editor of Aththa B.A. Siriwardene, and later Nadesan himself, were charged with breach of privilege of Parliament, Reeza was part of the defence team led by Senior Attorney HL de Silva.

Stop Harassing Bishop Rayappu Joseph

By Fr Pan Jordan OP and Fr Claude Mostowik MSC -January 12, 2013 

We, Christians and concerned people, are disturbed by past and continuing actions by the Sri Lankan government against the Catholic Bishop of Mannar, Most Rev Dr Rayappu Joseph. Bishop Joseph has consistently expressed concern at the plight of the all people of the North and East of Sri Lanka. His concerns have been taken President Mahinda Rajapaksa’s Lessons Learnt and Reconciliation Commission (LLRC), theUN Human Rights Council (by Skype, because travel was too dangerous), to visiting US Ambassadors who came to Sri Lanka prior to the UNHRC meeting in Geneva (March 2012), and a detailed letter to President Mahinda Rajapaksa himself expressing his concerns at the problems faced by civilians in the north and east..

Bishop Joseph has raised major concerns about the fate of the asylum seekers deported to Sri Lanka by Australian authorities without any proper investigation and sometimes with no investigation at all.

Having had no response from the Sri Lankan President, Bishop Joseph wrote to the Australian Government urging it not to send back any asylum seekers to Sri Lanka because of harassment, and worse by Sri Lankan Armed Forces and Police who are 99% and 95% Sinhalese respectively.

Bishop Joseph was subsequently questioned for 3 hours by the Terrorism Investigation Division (TID) of the Sri Lankan police when he was in the Bishop’s Conference building, Balcomb Place, Kotta Rd Colombo. He has been interrogated by the TID and the Criminal investigation Department (CID) with the aim of intimidating him into silence.

We call on President Mahinda Rajapaksa to:

• stop the harassment of Bishop Joseph immediately; and
• respond constructively to Bishop Joseph’s suggestions to improve the human rights of people in the north and east of Sri Lanka.

Mr Mahinda Rajapaksa

President

Socialist Democratic Republic of Sri Lanka

C/-Office of the President

Temple Trees

150 Galle Road

Colombo 3

SRI LANKA

E-mail: secretary@presidentsoffice.lk

We call on the Australian Government to:

• urge the Sri Lankan Government to stop the harassment of Bishop Joseph immediately; and
• halt the arbitrary deportation of Sri Lankan asylum seekers and that their applications for protection be properly processed in accordance with the UN Refugee Convention and Australia’s own immigration policy.

The Hon Julia Gillard MP

Prime Minister

Parliament House

CANBERRA ACT 2600

E-mail form: http://www.pm.gov.au/contact-your-pm

We call on UN Human Rights Council and church groups to:

• urge the Sri Lankan Government to stop the harassment of Bishop Joseph immediately; and
• urge the Australian Government to halt the arbitrary deportation of Sri Lankan asylum seekers and that their applications for protection be properly processed in accordance with the UN Refugee Convention and Australia’s own immigration policy.

Honourable Ms. Navanethem Pillay
United Nations High Commissioner for Human Rights
Office of the United Nations High Commissioner for Human Rights (OHCHR)
Palais Wilson
52 rue des Pâquis
CH-1201 Geneva
SWITZERLAND

E-mail: npillay@ohchr.org

This material has been produced through the collaboration of Pax Christi Australia, the Catholic Justice & Peace Commission of Brisbane and the Sri Lanka Justice Forum Brisbane. For further information, please contact:

Fr Pan Jordan OP – pancrasjordan@gmail.com, 61 (0)415 461620.

Fr Claude Mostowik MSC – mscjust@smartchat.net.au 61 (0)411 450953