The lawyers for the 12th Respondent, a members of the Select Committee of Parliament appointed with regard to the charges against the Chief Justice, the Hon. Vijitha Herath, have filed their written submissions opposing the Attorney General’s appeal relating to the Court of Appeal judgement which ordered the quashing of the findings of the Parliamentary Select Committee relating to the allegations against the Chief Justice, Dr. Shirani Bandaranayke. We give below the full text of the lawyers reply.
TO: HIS LORDSHIP THE CHIEF JUSTICE AND OTHER LORDSHIPS OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
WRITTEN SUBMISSIONS ON BEHALF OF THE 12TH RESPONDENT-RESPONDENT ON MAIN ARGUMENTS
a) The Attorney General [“AG”] of the Democratic Socialist Republic of Sri Lanka has in the instant case moved Your Lordships’ Appellate Jurisdiction in an extraordinary manner, titling himself as “PARTY NOTICED (AMICUS CURIA)-APPELLANT” against the Judgment of the Court of Appeal setting aside the purported findings of 07 Government MPs out of an 11 Member Parliamentary Select Committee.
b) It transpired in the observations made in Court that the appeal is intended to set aside the Court of Appeal judgment AND to review the Supreme Court’s own determination in SC/REFERENCE 03/2012. This case cannot be taken in isolation, independent of series of Court cases challenging the purported impeachment of the lawful Chief Justice of the Country. The scope and ramification of this case cannot be understood without briefly analyzing the conduct of the Government MPs, who wrote the impugned PSC report. Unfortunately, those MPs chose not to be represented in Courts though informed of the cases being parties to the relevant cases.
c) As the Law stands now, the Petitioner Chief justice (who was unlawfully impeached) remains the Chief Justice de jure as the Courts have quashed the findings of the purported PSC Majority Report. In the mean time HE the President has appointed a Chief Justice in her place. Thus, it is clear from the facts leading up to the case that the instant Appeal is intended to indirectly resolve the legality of the Appointment of the present Chief Justice.
2. FACTS IN BRIEF:
a) The Chief Justice Bandarayanaka (sometimes referred to as the Petitioner) filled Writ Application 411/2012 on 19.12.2012, seeking to quash the purported Majority Report of the PSC. As transpired from the material before Court, the major issues raised in the said Writ Application is as follows:
b) The purported select committee has failed to give the Petitioner sufficient time to meet the charges;
c) The 5th and 6th Respondents, 02 of the Government Members of the PSC had conflict of interest, and therefore, bias and therefore disentitled them from serving in the PSC;
d) There was no procedure laid down in respect of how the inquiry against the Chief Justice was to be conducted;
e) There was no lists of witnesses made available or known and in fact, it was indicated that no witnesses would be called;
f) The Chief Justice was insulted/ridiculed by several Government Members of the PSC, compelling her to walk out of the proceedings;
g) Though the Chief Justice was initially informed that there would be no witnesses called, after the Petitioner and the Opposition Members left several witnesses were summoned and the purported inquiry was concluded within 24 hours and the Petitioner was found guilty of 05 out of 14 Charges.
h) In the meantime, in a separate Writ Application filed by a public spirited citizen, a reference was made to the Supreme Court, touching the constitutionality of the Standing Order 78A. The Supreme Court having considered extensive submissions made by Counsel answered the reference as follows:
“It is mandatory under Article 107(3) of the Constitution for the Parliament to provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof of any alleged misbehavior or incapacity and the Judge’s right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehavior or incapacity.”
i) When the Court of Appeal application, filed by the Chief Justice Petitioner came up for arguments, the Petitioner’s Counsel urged several grounds on legality as well as the conduct of the Members, but the divisional bench of Court of Appeal considered it sufficient to rule the issues based on the determination made by the Supreme Court in SC/REFERENCE/04/2012.
j) Thereafter, the Court of Appeal issued a Writ of Certiorari without cost.
k) It is pertinent to note that, of the Respondents, the 1st to 10th Respondents did not appear in Court, but, the 11th and 12th Respondents were represented. In the circumstances, the Honourable AG was invited, in his capacity as amicus curiae to make submissions.
l) None of the Parties to the case moved to Appeal against the Court of Appeal Judgment. However, the AG took the responsibility upon himself to challenge the Judgment of the Court of Appeal through these proceedings.
3. GRANTING OF LEAVE:
a) The 12th Respondent learnt through the media that this Appeal had been instituted by the AG and that leave had been granted, without Notice being issued on the 12th Respondent (or the 11th Respondent). Thereafter, the 11th and 12th Respondents filed papers to vacate the ex-parte granting of Leave to Appeal.
b) On 29.05.2013, the matter came up and a Bench of 05 Judges [Hon. Marsoof J, Hon. Ratnayaka J, Hon. Hettige J, Hon. Wanasundera J, Hon. Marasinghe J] set aside the Granting of Leave in relation to the 11th and 12th Respondents and fixed the matter for Granting of Leave to be heard in opposition by the 11th and 12 Respondent on 10.06.2013.
c) On 06.06.2013, the 12th Respondent filed Preliminary Objections into the maintainability of the Appeal. The matter was heard on the preliminary objections on 10.06.2013 and the parties were given 04 days to file their Written Submissions. The Parties accordingly filed their Written Submissions on 14.06.2013.
d) On the hearing of the Granting of Leave, it was common ground that the submissions were made only in respect of the Preliminary matters and not on the substantive aspects of the case.
e) On 28.06.2013 Your Lordships’ Court rejected all the Preliminary Objections and also proceeded to grant Leave to Appeal on two Questions, though the Counsel for 11th and 12th Respondents were not heard on merit.
f) The 12th Respondent thereafter filed a Motion to fix the matter for the substantive issue of Granting of Special Leave as they were not heard on the substantive issues. However, on 16.07.2013 Your Lordships’ refused to hear the 12th Respondent on merit and directed that the Order Granting Leave should remain and fixed the matter for Argument and directed the 11th and 12th Respondents to file Written Submissions within 01 Month.
g) Thus, the 11th and 12th Respondents were deprived of raising Counter Issues which, under normal circumstances any Respondent is entitled to. Therefore, this Appeal is only limited to Questions raises by the Appellant AG, without participation of the 11th or 12th Respondents.
h) The two Questions of Law on which leave to appeal was granted are as follows:
i) Did the Court of Appeal err in holding that the writ jurisdiction of that Court embodied in Article 140 of the Constitution extends to proceedings of Parliament or a Committee of Parliament?
ii) Did the Court of Appeal err in holding that the words “any Court of first instance or tribunal or other institution or any other person” in Article 140 of the Constitution extends to the Parliament or a Committee of Parliament?
4.1.AG’s Position undermines Constitutional Foundation
a) It should be noted at the outset that the learned Attorney-General’s ‘grounds’ of appeal are an attack on the very core of the Rule of Law and the independence of the judiciary, and the basic notions of constitutionalism in Sri Lanka. Among other things, if the learned Attorney-General were to succeed, the very authority and jurisdiction of the Supreme Court and all courts of Sri Lanka will suffer irreparable damage of a substantial nature. Inherent in the grounds urged by the learned Attorney-General is for the Supreme Court and the other courts, including the Court of Appeal, to abdicate their role of defending the rights of the individual against the arbitrary actions of the state in general and organs of the state in particular. If this were to succeed, the very notion of the separation of powers, which gives the grounding for the independence of the judiciary, will be so affected that the Supreme Court and the other courts would be substantially absorbed into the control of the executive.
b) The learned Attorney-General’s application aims to legitimize the government’s removal of Chief Justice Dr. Shirani Bandaranayake belatedly. Nothing less! This will result in endorsing a deplorable PAC procedure in violation of all norms of natural justice, known to the legal system world over. The Supreme Court of Sri Lanka in Victor Ivan and others v Hon. Sarath Silva and Others– 2001 SLR1V309 clearly stated that the Supreme Court “has no jurisdiction to remove the Chief Justice from office”. It follows that the validation of the removal of the Chief Justice is not a function that falls within the jurisdiction of the Supreme Court. The following excerpt from the said judgment is directly relevant:
“I need hardly stress that our Constitution is the paramount law of the land, and that this Court has a sacred duty and a solemn obligation to uphold the Constitution. We would therefore be failing in our duty of upholding the Constitution, and thus the Rule of Law, if we were to accede to the request of the Petitioners and grant the reliefs prayed for, without being clothed with the necessary jurisdiction therefore. To act thus without jurisdiction would be a clear violation of the Constitution itself. On the other hand, if this Court is to act strictly within the terms of, and intra vises the Constitution, us indeed learned Counsel for the Petitioners urged us to, then the way we have in fact acted is precisely the way we must, viz., in holding that this Court has no jurisdiction to remove the Chief Justice from office”.
(Victor Ivan and others Vs. Hon. Sarath Silva and Others- 2001 SLR1V309 – this judgment has been cited by AG as well)
c) Furthermore, it is a well-entrenched principle of law that what cannot be done directly also cannot be done indirectly. What the learned Attorney-General’s application aims to do is to validate the removal of Chief Justice Dr. Shirani Bandaranayake, which as stated in the above case, the Supreme Court has no jurisdiction to do. The same also cannot be done indirectly.
4.2.Overruling of the Constitutional Determination is not Permissible
a) The learned Attorney-General’s application is also aimed to set aside the Determination of the Supreme Court relating to the reference made by the Court of Appeal in the relevant Court of Appeal case for an opinion relating to the procedure for removal of a judge of the Supreme Court. We respectfully submit that it is not within the jurisdiction of the Supreme Court to set aside an opinion expressed by the Supreme Court previously, as the said opinion was only applicable to specific reference. The Supreme Court is functus on that in as much as it has now interpreted the constitutional provision in terms of Article 125 of the Constitution. Article 132(2) Proviso states, in no uncertain terms, that a bench of three judges constitutes the Supreme Court to exercise its jurisdiction, unless otherwise directed by the Chief Justice. No such special bench was constituted and therefore, for all purposes, the three judge bench presided over by Hon. Justice Amaratunga had exercised the constitutional jurisdiction under Article 125, which cannot be reviewed or overruled by any other bench, whether the number of judges are equal or higher. It is further submitted that in this instance also, the principle that what cannot be done directly also cannot also be done indirectly is valid.
4.3 Scope of Writ Jurisdiction is much wider than AG’s Misconceived Submissions
a) The first ground relied on by the learned Attorney-General is that ‘the said judgment of the Court of Appeal is misconceived in law.’ In fact, it is the grounds set out by the learned Attorney-General in his application that are misconceived in law and totally erroneous, and are grievously harmful to the constitutional and legal system in Sri Lanka, which are based firmly on the principles of the rule of law and the independence of the judiciary. Further, the legal position set out by the learned Attorney-General in ‘his grounds’ are a serious attack on the very basis of the existence of the Supreme Court as an independent court rooted in the tradition and the practice of rule of law and the independence of the judiciary. The relevant judgment of the Court of Appeal is well-conceived in law and in fact is a firm affirmation of the independence and the dignity of the court, and a manifestation of the willingness of the said court to defend the rule of law and the independence of the judiciary against any attack or assault by any party, including one of the branches of the government, and, in this particular instance, by an unlawfully and unconstitutionally constituted parliamentary committee, which was directly under the control of the Executive President, who represents the executive.
b) The said judgment from the Court of Appeal was also firmly based on the opinion delivered by the Supreme Court of Sri Lanka in the reference, directly on the issues referred to it by the Court of Appeal in this particular case. In the particular circumstances of the case, the Supreme Court and the Court of Appeal have based themselves on the firm basis of the common law, where any undermining of the principles of the rule of law and the independence of the judiciary has been resolutely resisted by judges. Judges have historically discharged this duty in countries where Rule of Law is preserved. The learned Attorney-General’s attempt to disturb and upset this judgment is in fact an attempt to seriously damage the Rule of Law and the independence of the judiciary, and to thereby undermine the constitution and the constitutional tradition of Sri Lanka. The Rule of Law can only be preserved by the interventions of a judicial system; including the Judges, Attorney General and the lawyers. It is a relevant fact under these circumstances to consider the position of the learned Attorney-General and his department, which is today placed under the President. For the Attorney-General and his department to act under the Presidential Secretariat is completely against the common law tradition and the constitutional traditions based on the rule of law and the independence of the judiciary. The transformation of the Attorney-General’s department as an institution whose independence has been thoroughly undermined by the Executive in Sri Lanka, is an extremely relevant fact in considering all the issues relating to the present case. Can The learned Attorney-General, whose independence has been undermined and seriously destroyed by the executive, urge the Supreme Court to set aside a judgment of the Court of Appeal by which the judges of the Court of Appeal? If the learned Attorney-General were to succeed in his attempt, it will do irreparable damage to the authority of the Supreme Court itself, and displace the firmly held common law tradition in Sri Lanka once and for all. Thus, the threat to the common law and constitutional tradition arises not from the said judgment of the Court of Appeal but by the challenged posed to that judgment by the learned Attorney-General.
c) It appears that the learned Attorney-General has based his objections to the said judgment on the basis of legally erroneous positions set out in a book edited by a politician from the present Government called Rohitha Bogollagama and carrying a Preface from the Presidential Advisor and a former Chief Justice Asoka De Silva. The author Dr. Mark Cooray first published as a serialized article in the government propaganda newspaper ‘Daily News’ which has now been published as a booklet. We recall similar articles written and published by various people in all branches of the State. The said article of Dr. Mark Cooray is legally erroneous and factually incorrect in many instances and does not represent the law in Sri Lanka. (See para 4.3(d) below for extensive analysis on Dr. Cooray’s article).
d) The law in Sri Lanka relating to the scope of writ jurisdiction has been interpreted by judges of the Supreme Court of Sri Lanka, which will be referred to subsequently in this submission. See, for example, Heather Therese Mundy v Central Environmental Authority and others, SC 58-60/2003 SCM 20.1.2004 under paragraph 4.3 below.
4.3.The Court of Appeal has Jurisdiction over Parliament or any committee of parliament
a) The second ground stated by the learned Attorney-General is that ‘the Court of Appeal misdirected itself inasmuch as it had failed to appreciate that the court had no jurisdiction over Parliament or a Committee of Parliament’. This submission is erroneous in law and directly contrary to the law as interpreted by the Supreme Court of Sri Lanka as well as the courts of other countries in the commonwealth, such as the Indian courts.
b) In Sri Lanka, the parliament is not supreme and it is the constitution that is supreme. IN addition, in terms of Article 3 of the Constitution, sovereignty is in the hands of the People. The constitution is firmly based and grounded on the principles of the Rule of Law and the independence of the judiciary. If these two principles were to be undermined and/or displaced, with that the constitutional tradition of Sri Lanka comes to an end. As the English philosopher John Locke, who is one of the great contributors to the development of modern constitutionalism and whose influence on the constitution of the United States is well acknowledged, said in 1690, “Whenever law ends, tyranny begins.” John Locke, Second Treatise of Government, chap. XVII, s. 202 (1690; Cambridge University Press, 1988), p. 400.
c) The same point was made by Thomas Paine in 1776 when he said, “that in AMERICA THE LAW IS KING. For as in absolute governments the King is law, so that in free countries the law ought to be King; and there ought to be no other.” Thomas Paine, Common Sense (1776; Oxford University Press (World’s Classics), 1995), p. 34
d) It should also be noted that having regard to issues that came up for determination in the writ application of Hon. Bandaranayaka, before the Court of Appeal – in the instant case, given the conventions, traditions and historical groundings of the relationship between the courts and the parliament, it is impossible for a similar issue to come up before a court of England or United States or Australia (or any civilized country), where an illegally and unconstitutionally constituted committee of parliament would be tasked with a similar mandate as the impugned Parliamentary Select Committee, with the direct aim of removing the Chief Justice of Sri Lanka. The conventions and the traditions of these countries achieved through historical struggles of people over the centuries have entrenched a clear separation of functions between the parliament and the courts, and no parliament has ever dared to assume similar functions as assumed by the parliament under the direction of the Executive President and the Parliamentary Select Committee in Sri Lanka. In the instant case, the boundaries of the Rule of Law have been trespassed and the actions that the Parliamentary Select Committee and the parliament undertook were “acts of tyranny” and not act within the parameters of the rule of law.
e) In this instance, the misconceptions caused by the article by Dr. Mark Cooray, relied heavily by the AG relating to Article 33 of the Constitutional Reform Act of 2005 of England need to be mentioned and clarified. Attention of Court is drawn to the following paragraph, in order to put the statements of Dr. Cooray in the correct perspective:-
“Both Houses of Parliament have the power to petition The Queen for the removal of a judge of the High Court or the Court of Appeal. This power originates in the 1701 Act of Settlement and is now contained in section 11(3) of the Supreme Court Act 1981. It has never had to be exercised in England and Wales. It has in fact only been exercised once, when Sir Jonah Barrington was removed from office as a judge of the Irish High Court of Admiralty in 1830 for corruption: he misappropriated funds due to litigants. No English High Court or Court of Appeal judge has ever been removed from office under these powers. Circuit and District Judges can be removed by the Lord Chancellor. However, he can only do so if the Lord Chief Justice agrees. This power has only been exercised twice; once in 1983 when a judge was caught smuggling whisky from Guernsey into England; the other in 2009, for a variety of inappropriate behaviour.“ ‘Judges and Parliament’ on Judiciary.gov.uk <http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/jud-acc-ind/judges-and-parliament>
f) Parliament can pass a resolution addressing the Crown stating that a Commission of inquiry will investigate the administration of a certain court presided over by a particular judge. That resolution in fact orders the government to investigate into the conduct of the judge, and that will eventually serve as a basis for debate in Parliament.
g) Thus, it was erroneous and misleading for Dr. Mark Cooray to state in his previously mentioned article published in the ‘Daily News’ that
“’A judge of the Supreme Court holds that office during good behavior, but may be removed from it on the address of both Houses of Parliament.’ That is all this huge 323-page Act of Parliament says about the removal of judges of the Supreme Court. This provision to remove Supreme Court judges basically follows the time honoured British practice. There is no talk of an ‘impartial tribunal’ or about filing charges, hearings and the right to defend oneself. Somebody files a motion in parliament and after due debate, Parliament will decide whether to sack or retain the judge. “
h) The matter of the evolution of what is known as the liberal democratic tradition of England, which was later also adopted in countries such as the United States and Australia, the question of tyranny and liberal democracy is clearly demarcated. In the demarcating lines, the rule of law and the independence of the judiciary are the boundaries. The courts of these countries have not had the misfortune of having to consider issues relating to the exercise of tyranny by parliament or parliamentary committees. In Sri Lanka, what the Court of Appeal had to consider in the relevant case was an issue in which illegally and unconstitutionally constituted Parliamentary Select Committee were directly extending their hand to attack and to destroy the independence of the judiciary by the arbitrary removal of the Chief Justice. In the face of a tyrannical attack and in order to safeguard the independence of the judiciary, the Sri Lankan courts in this instance acted well within the principle of safeguarding the basic structure of the constitution against the assaults by an illegally unconstitutionally set up parliamentary select committee.
i) The Indian Supreme Court has clearly held that if the parliament attempts to take away conflict with the basic structure of the constitution, it is mandate and the obligation of the Supreme Court to safeguard the constitution against the parliament and, on that basis, it decided the case of Kesavananda Barati (Kesavananda Bharati vs State of Kerala And Anr on 24 April, 1973).The court held,
“The learned Attorney General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
317. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.”
j) The basic structure of the constitution of Sri Lanka is the same as in India on all essential elements and the only difference relates to the federal nature of the Indian state and the unitary nature of the Sri Lankan state. On the issues of the supremacy of the constitution, republican and democratic form of government, secular character of the constitution, separation of powers between the legislature, executive and judiciary, there is no difference between the Sri Lankan constitution and the Indian constitution. Further, as far as the rule of law and the independence of the judiciary as the indispensable components of the structure of government, the situation of India and Sri Lanka are the same.
k) The Sri Lankan Supreme Court has already held that the writ jurisdiction of the courts of Sri Lanka since 1972 are not based on prerogative writs as Sri Lanka has become a republic. In the celebrated case of Heather Therese Mundy v Central Environmental Authority and others, SC 58-60/2003 SCM 20.1.2004, Hon. Justice Mark Fernando held as follows:
‘The jurisdiction conferred by Article 140, however, is not confined to “prerogative” writs, or “extraordinary remedies”, but extends – “subject to the provisions of the Constitution” – to “orders in the nature of” writs of Certiorari, etc. Taken in the context of our Constitutional principles and provisions, these “orders” constitute one of the principal safeguards against excess and abuse of executive power: mandating the judiciary to defend the Sovereignty of the People enshrined in Article 3 against infringement or encroachment by the Executive, with no trace of any deference due to the Crown and its agents. Further, this Court itself has long recognized and applied the “public trust” doctrine: that powers vested in public authorities are not absolute or unfettered but are held in trust for the public, to be exercised for the purposes for which they have been conferred, and that their exercise is subject to judicial review by reference to those purposes (see de Silva v Atukorale,  1 SLR 283, 296-297; Jayawardene v Wijayatilake,  1 SLR 132, 149, 159; Bandara v Premachandra,  1 SriLR 301, 312); and that doctrine extends to national and natural resources (such as the air-waves, Fernando v SLBC,  1 SLR 157, 172, and mineral deposits, Bulankulame v Secretary Ministry of Industrial Development,  3 SLR 243, 256-257). Besides, executive power is also necessarily subject to the fundamental rights in general, and to Article 12(1) in particular which guarantees equality before the law and the equal protection of the law. For the purposes of the appeals now under consideration, the “protection of the law” would include the right to notice and to be heard. Administrative acts and decisions contrary to the “public trust” doctrine and/or violative of fundamental rights would be in excess or abuse of power, and therefore void or voidable.’
4.4 What is ‘according to law’ – under Article 140 of the Constitution?
a) The third ground relied on by the learned Attorney-General that ‘the Court of Appeal erred in law in failing to consider in terms of Article 140 of the Constitution the Court of Appeal has the power to grant writs only “according to law”’. No one questions the fact that the Court has to grant relief according to law but the AG is insinuating that the Court of Appeal has not granted relief ‘according to law’. There can be no law outside the operation of the notion of the Rule of Law and of safeguarding the independence of the judiciary. The relevant judgment of the Court of Appeal quashed the finding of illegally and unconstitutionally set up parliamentary select committee’s ‘findings’. Had that not been done, the Rule of Law and the independence of the judiciary would have suffered irreparable damage. If such damage was caused to the rule of law, “acting according to law” would have become impossible in Sri Lanka.
b) In considering ‘according to law’, the Supreme Court of Sri Lanka in the present case is also called upon to consider whether the rule of law and the independence of the judiciary would survive in Sri Lanka if the Court of Appeal in the relevant case were not to quash the findings of the Parliamentary Select Committee.
c) As the Indian Supreme Court held in Kesavananda Bharati vs State of Kerala And Anr the safeguarding of the basic structure of the constitution is the task of the courts. If the courts fail to protect the basic structure of the law, then acting ‘according to law’ would have no meaning in Sri Lanka.
d) In the present case, in considering the learned Attorney-General’s application, what the Supreme Court is called upon to do is to determine whether ‘according to law’ will have any sensible meaning in the future if the learned Attorney-General’s prayer is to be answered affirmatively by the court. It is respectfully submitted that if the learned Attorney-General were to succeed in this present case, arbitrariness would take the place of ‘according to law’.
e) Within the rule of law tradition, ‘according to law’ is distinguished from arbitrariness. The actions of the parliamentary select committee were arbitrary and were not according to the law. By the relevant judgment of the Court of Appeal, the court quashed an action that was not done according to the law, which means an action that was arbitrary, and thereby the Court of Appeal safeguarded the law.
f) A short history of the term ‘according to law’: Thomas Paine’s statement that “in absolute governments the King is law” sums up the situation in England until the power of the King was defeated. The notion that no one is above the law was established. In England, the parliament’s supremacy embodied the notion that no one is above the law. It has never been interpreted in England to mean that the parliament is above the law. To say that the parliament is above the law would be to state the very opposite of the idea that no one is above the law. It should be noted that although the British law was imposed on Sri Lanka like in other colonies, it was not possible for the British to impose the British tradition in Sri Lanka and other countries. Conventions and traditions are a product of history. It is the particular struggles that take place within a particular country that shapes its traditions. Here the following quote from Sir John Mortimer QC is relevant.
“We have every reason to be proud of the fact that our judicial system has been adopted in so many different parts of the world. At the heart of it is fairness to everyone who holds views with which the government doesn’t agree, and judicial independence. Without these ingredients, the wearing of wigs, the humble submissions and the quoting of House of Lords authorities become a meaningless parade of archaic customs and costumes.”
Sir John Mortimer QC, Murderers and Other Friends: Another Part of Life (1994) p. 15
g) The attempt by the learned Attorney-General – based on the article by Dr. Mark Cooray, edited by a partly retired politician of the government Mr. Rohitha Bogollagama – to interpret ‘according to law’ to mean that the courts in Sri Lanka do not have jurisdiction to exercise their power, particularly their power relating to writs against the parliament or parliamentary select committee, when the parliament or the select committee stand above the law, is a confirmation of the view expressed above by Sir John Mortimer. It would be a supreme folly if ‘according to law’ to mean that the parliament or select committee in Sri Lanka is above the law.
4.5 The Court of Appeal has properly interpreted the meaning of the English common law and the relevant statutory law of Sri Lanka in exercising its writ jurisdiction
a) The fourth ground relied on by the learned Attorney-General, that ‘the Court of Appeal erred in law in failing to appreciate that the words “according to law” has been interpreted to mean the English Common Law and the relevant statutory law of Sri Lanka’ is completely erroneous. ‘According to law’ has always been interpreted in the English common law, in the relevant statutory law in Sri Lanka, in other jurisdictions such as the courts of India, and in the interpretations made by way of judicial precedent in Sri Lanka, has always meant the law operating in the framework of the rule of law and the independence of the judiciary. There is no judgment in England, in Sri Lanka or India where the courts have interpreted ‘according to law’ to mean or to include anything that contravenes the rule of law or undermines the independence of the judiciary. It is a consistent tradition in all these countries to regard the rule of law as the very pillar on which the law can exist and anything can be done ‘according to law’.
b) The short definition given by Tom Bingham (former Lord Chief Justice of England and Wales and Senior Law Lord) is relevant at this point: “The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publically made, taking effect (generally) in the future and publically administered in the courts.” Tom Bingham, The Rule of Law (London, Penguin: 2011) p. 8 Thus, clearly, in the relevant judgment the Court of Appeal considered the Parliamentary Select Committee as falling within ‘all persons and authorities within the state’. That interpretation was well within the meaning of law of England as asserted by Tom Bingham. Thus, the learned Attorney-General’s assertion in the fourth ground on which we has relied is completely contrary to the English common law and relevant statutory law in Sri Lanka. Additionally, as cited above it is also against the manner in which ‘according to law’ has been interpreted by the Indian Supreme Court.
c) The Supreme Court of Sri Lanka, in the celebrated case of In re Agnes Nona 53 NLR 106, quoting with approval Dicey, stated that “the crown itself, is brought under the supremacy of the law of the land”.
“Now-supposing that the act done is illegal, the minister concerned in it becomes at once liable to … proceedings in a Court of law. Hence indirectly, but surely, the action of every servant of the Crown, and, therefore, in effect of the Crown itself, is brought under the supremacy of the law of the land. Behind Parliamentary responsibility lies legal liability, and the acts of ministers no less than the acts of subordinate officials are made subject to the Rule of Law . . . and the ordinary Courts have themselves jurisdiction to determine what is the extent of his legal power, and whether the orders under which he acted were legal and valid,” 2[See Dicey, pp. 193, 326, 389.].
d) In Visuvalingam and Others v. Liyanage and Others No. (1) – 1983 SLR 2V 311. The Supreme Court of Sri Lanka stated that,
“….The main aspirations of the Constitution are set down in its luminous preamble. Rule of law is the foundation of the Constitution and independence of the judiciary and fundamental human rights are basic and essential features of the Constitution. It is a lesson of history that the most valued constitutional rights pre-suppose an independent judiciary, through which alone they can be vindicated. There can be no free society without law, administered through an independent judiciary. It is and should be the pride of a democratic government that it maintains and upholds independent courts of justice where even its own acts can be tested. The supremacy of the Constitution is protected by the authority of an independent judiciary to act as the interpreter of the Constitution. So solicitous were the framers…..”
e) In Manawadu v. The Attorney-General – 1987(2) SLR 30, the court held “However a construction which offends justice and is repugnant to the Rule of Law that permeates our Constitution should yield to an alternate construction which is harmony with justice and human rights.”
“He submitted that the forfeiture of the vehicle is automatic on the conviction of the offender irrespective of the fact that the owner of the vehicle is innocent and the owner is no party to the commission of the offence. He referred to the espousal of the object that the Minister had in mind when introducing the Bill for effecting the Amendment No. 13 of 1982. Vide Hansard dated 25.2.1982, Vol. 9 Part 19 at pages 1558-1559 the Minister said. “It is necessary in the situation that we are faced, where forest resources are fast depleting to see that strong and firm action is taken although in the process some innocent people might suffer.” I see the force of Counsel’s argument. However a construction which offends justice and is repugnant to the Rule of Law that permeates our Constitution should yield to an alternate construction which is harmony with justice and human rights. It is too much ,to believe that Parliament intended by this amendment to jettison the in-built principles of natural justice highlighted in the judgments of our courts and of courts of other civilized countries. The Constitution assures justice to all people. Arbitrary forfeiture without reference to the owner’s culpability is the negation of justice. The courts assume that the legislature does not intend injustice and seek to avoid a construction that produces or spells injustice. However it is the duty of the court to accept the prescription decided on by Parliament even though the court considers the result unjust, provided it is satisfied that Parliament did intend that result: Oliver L. J., correctly said in Wicks v. Pirth (11) “That is quite clearly the purpose and it is not for this court to question or to evaluate the social justification for the legislation.””
f) It is respectfully submitted that, in terms of the case cited above and also in terms of accepted principles, mere legality is no law when it offends justice and human rights. The entire application of the learned Attorney-General in this case is based on an article by Dr. Mark Cooray, edited by politician Bogollagama, which is based on the erroneous notion that mere appearance of legality alone is sufficient. As in the case cited above, “However a construction which offends justice and is repugnant to the Rule of Law that permeates our Constitution should yield to an alternate construction which is harmony with justice and human rights.”
g) According to English common law and the relevant statutory law of Sri Lanka, it would be completely erroneous if ‘according to law’ is interpreted to mean that parliament or parliamentary select committees are above the law.
4.6 The Court of Appeal correctly interpreted the law relating to the issue of writs against parliament or committees of parliament
a) On the fifth ground relied on by the learned Attorney-General, he is clearly erroneous in law when he states that ‘the Court of Appeal erred in law in failing to consider that in terms of English Common Law that no writ can be issued against Parliament or a Committee of Parliament.’ The matter was quite irrelevant to the case before the Court of Appeal in that an issue of illegally and unconstitutionally constituted Parliamentary Select Committee coming to findings without following procedure according to law was absolutely alien to the experience of English common law. English common law works on the basis of traditions and conventions, alongside statutes and judicial precedents, which have consistently worked within the operation of the principles of rule of law and on the basis of the principle of the independence of the judiciary. What the Court of Appeal was called upon to consider was not a fiction but an issue which affected the very foundation of the system of the rule of law and the principle of independence of the judiciary, on the basis of which the rights of all the citizens of Sri Lanka depended. In deciding such an issue, the court could not have considered completely a historical situations relating to the common law in England. It had to make a judgment within the framework of a particular historical situation where tyranny was challenging the very foundation of the rule of law and the future respect for the independence of the judiciary. The courts do not operate purely on fictions. Their decisions affect the rights of people within their jurisdiction and not to undermine or to destroy these rights is the basis on which their own mandate is based. That mandate of protecting the rights of people within their jurisdiction against tyranny is well founded on the common law tradition. In fact, there would not have been a common law tradition if the judges had not consistently interpreted the law against tyranny and on the basis of the principles of rule of law alone. In this particular instance, the Court of Appeal has discharged their function well within the time honoured tradition of the common law.
b) In India, the Supreme Court has held that the courts in India have the power to issue writs against the parliament. The following are a few cases where the Indian courts have asserted their right to issue writs against parliament and legislative assemblies of the state governments:
(i) In The State of Kerela v R. Sudarsana Babu, ILR (Kerela) 1983 p. 661, the issue was whether a court of law can take congnizance of a complaint against a Speaker of a Legislative Assembly on the ground that action taken by him under rules of procedure and conduct of business of the Legislative Assembly was discriminatory and violative of fundamental rights. The court responded saying that a petition under Article 226 of the Constitution would be maintainable even against the legislature of a state; as such, legislature is within the definition of the state within Article 12 of the Constitution and the rules framed under Article 208 of the Constitution regulating the procedure of the House and the conduct of its business are liable to judicial review if there was a case of infringement of fundamental rights. In Rajendra Signh Rana and Ors v Swami Prasad Maurya and Ors (2007) 4 SCC 270, the Supreme Court of India held that a Speaker’s decision is not immune from judicial scrutiny, thereby accepting that the powers conferred under Article 32 and Article 226 of the Constitution to the High Courts and the Supreme Court of India empowers the judiciary to review acts undertaken within the four walls of the legislature and that such acts are not immune from judicial interventions.
(ii) In O.S. Manian v Speaker, Tamil Nadu Legislative Assembly (2000) 4 MLJ 121, a very pertinent issue arose before the court as to whether the powers of judicial review under Article 226 of the Constitution in respect of the impugned could be invoked and a remedy of writ was available or maintainable to quash the impugned proceedings. In this case, the Madras High Court, reiterating the findings of the Supreme Court in AIR 1982 SC 710, held that a writ petition was maintainable and the impugned proceedings could be challenged before the court under Article 226 of the Constitution. Another question that arose in this case was whether the challenge to the Legislative Assembly resolution was maintainable by way of a writ petition under Article 226 of the Constitution?
(iii) In Raja Ram v Hon’ble Speaker, Lok Sabha and Ors, (2007) 3 SCC 184, the Supreme Court said, “There ought not be any doubt left that whenever parliament, or for that matter any state legislature, claims any powers or privilege in terms of the provisions contained in Article 105(3) or Article 194(3), as the case may be, it is the court which has the authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power of privilege that has been claimed or asserted by the legislature is one that was contemplated by the said constitutional provisions or, to put it simply, if it was such a power or privilege as can be said to have been vested in the House of Commons of Parliament in the UK as on the date of commencement of the Constitution of India as to become available to Indian legislatures.” The court further observed that the legislative organs in India, both parliament and state legislatures, are completely subservient to and controlled by the written provisions of the constitution of India.
Every deliberative body, including the parliament, needs certain rules of procedure to conduct its business. Article 118 of the Indian Constitution confers rule-making power on each House of the parliament. A similar power has been conferred upon the state legislature under Article 208 of the Constitution. The House is entrusted with the power to set out the manner through which to do its business the way it wishes. However, the power of the parliament to regulate its procedure and the conduct of its business is subject to the provisions of the constitution. The rules framed under Article 208, which is similar to Article 118, were held to the subject to the fundamental rights guaranteed under Part III of the Constitution. The court held that the rules made for exercising power under Article 194(3) would be subject to the fundamental rights of citizens. This was held in Regina Article 143 of the Constitution of India, AIR 1965 SC 745.
(iv) In S. Godavari Mishra v Speaker, Orissa State Legislative Assembly, AIR 1953 Orissa 111, it was observed that the courts have no power to interfere with the rules of procedure or their administration unless there is a contravention of some provision of the constitution. This case clearly demonstrates that in there is a contravention of some provision of the constitution, the court does have the power to intervene.
(v) In A.J. Faridi v Chairman, UP Legislative Council, AIR 1963 Allahabad 75, the High Court (Lucknow Brench) decided that the rules formed by the state legislature must be in conformity with the constitution.
(vi) In Regina: Powers, Privileges and Immunities of State Legislatures, AIR 1965 SC 745, the question before the court was whether the judiciary has the ultimate authority in interpreting the scope of Article 194(3). Chief Justice Sarkar said, “It will not be profitable at all and indeed I think it would be mischievous, to enter upon a discussion of that dispute for it will only serve to make turbid by raking impurities which have settled down, a stream which has run clear now for years. Furthermore, that dispute can never arise in this country for here it is undoubtedly for the courts to interpret the constitution and therefore Article 194(3). It follows that when a question in this country under that article as to whether the House of Commons possessed a particular privilege at the commencement of the constitution that must be settled and settled only by the courts of law. There is no scope of the dreaded dualism appearing here. That is, courts entering into a controversy with a House of a legislature as to what its privileges are.”
(vii) In the state of Karnataka v Union of India (1977) 4 SCC 608, the constitution bench of the Supreme Court said, “Now, what the learned counsel for the plaintiff seemed to suggest was that Ministers, answerable to a legislature, were governed by a separate law, which exempted them from liabilities under the ordinary law. This was never the law in England. And, it is not so here. Our constitution leaves no scope for such arguments based on a confusion concerning the powers and privileges of the House of Commons. Our constitution vests only legislative power in parliament as well as in state legislatures. A House of parliament of state legislature cannot try anyone or any case directly, as a court of justice can, but it can proceed quasi-judicially in cases of contempt of its authority and take up motions concerning its priviledges and immunities because, in doing, it only seeks removal of obstructions to the due performance of its legislature functions. But, if any question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by ordinary courts in appropriate proceedings.”
(viii) In Gunupati Keshavram Raddi v Nafisul Hasan and the State of UP, AIR 1954 SC 636, it was held that the privileges of the parliament is subject to the fundamental rights under Part III of the Constitution.
c) In Premachandra v. Major Montague Jayawickreme and Another (Provincial Governors’ Case) – 1994 (2) SLR 90, the Supreme Court of Sri Lanka reiterated the principle in the common law relating to the rule of law as follows:
“When considering whether the exercise of a statutory power or discretion, especially one conferred by our Constitution, is subject to review by the judiciary, certain fundamental principles can never be overlooked. The first is that our Constitution and system of government are founded on the Rule of Law; and to prevent the erosion of that foundation is the primary function of an independent Judiciary.
“. . . The rule of law has a number of different meanings and corollaries. Its primary meaning is that everything must be done according to law. Applied to the powers of government, this requires that every government authority which does some act which would otherwise be a wrong (such as taking a man’s land), or which infringes a man’s liberty (as by refusing him planning permission), must be able to justify its action as authorized by law . . .
That is the principle of legality. But the rule of law demands something more, since otherwise it would be satisfied by giving the government unrestricted discretionary powers, so that everything that they did was within the law . . . The secondary meaning of the rule of law, therefore, is that government should be conducted within a framework of recognised rules and principles which restrict discretionary power . . .” (Wade, Administrative Law, 5th ed., p. 22).”
d) It would be completely erroneous to consider that in terms of English common law no writ can be issued against parliament or committee of parliament, as that would amount to holding that the parliament or committee of parliament can be above the law. If that were the case, the very idea of law would cease to have meaning and tyranny would take the place of law.
4.7 The Court of Appeal correctly interpreted the words ‘any court of first instance or tribunal or other institution or any person’
a) The sixth ground relied on by the learned Attorney-General is also erroneous. He says that ‘the Court of Appeal erred in law in failing to consider that the phrase “any Court of First Instance or tribunal or other institution or any person” in Article 140 of the Constitution does not include Parliament and any Committee of Parliament.’ As cited above, the statement of Tom Bingham is relevant relating to this sixth ground of the learned Attorney-General also. “The core of the existing principle is, I submit, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publically made, taking effect (generally) in the future and publically administered in the courts.” Tom Bingham, The Rule of Law (London, Penguin: 2011) p. 8
b) Clearly, ‘all persons and authorities within the state’ includes the three branches of the government, including the parliament. When the issue at stake is a challenge to the rule of law and the independence of the judiciary, it is the mandate of courts to protect the citizens’ rights by way of exercising their jurisdiction, including writ jurisdiction, for that purpose. As mentioned above, this has also been done in the same manner by the Indian Supreme Court.
4.8 The Court of Appeal has correctly interpreted that issuing writs on the parliament or committee of parliament is within its jurisdiction in terms of the provisions of the Constitution
a) The last ground (the seventh ground) relied on by the learned Attorney-General is also equally erroneous. He states that, ‘the Court of Appeal erred in law by failing to consider that the jurisdiction of the Court of Appeal in terms of Article 140 of the Constitution is “subject to the provisions of the Constitution”’. The words ‘subject to the provisions of the Constitution’ are always interpreted to mean that the courts must interpret the law within the framework of the constitutional principles which are normally termed ‘constitutionalism’. Article 140 should be interpreted in the context of the basic structure of the Constitution and not against the basic structure of the Constitution. What the learned Attorney-General is calling for is an interpretation of ‘subject to the provisions of the Constitution’ in a manner that will go against the very basic structure and the notional foundation of the constitution. There is no basis for the learned Attorney-General to make such a request as the request implies that the Supreme Court should make a decision that will undermine the basic structure of the constitution and the very notions of the rule of law and the independence of the judiciary. If the learned Attorney-General were to succeed, the very foundation of constitutionalism in Sri Lanka will come to an end. The very ground on which the Supreme Court stands will itself be destroyed. In fact, what the learned Attorney-General’s request implies is that the Supreme Court should make a judgment by which it will destroy its own authority and its own jurisdiction.
b) In this regard, the following details about the interpretation of the constitution are relevant:
(i) Article 140 of the Constitution as well as the whole Constitution itself is based on three paramount principles. These are the principle of rule of law, the principle of the separation of powers and the principle of the independence of the judiciary. These three principles are the basis of the Constitution and for all courts of Sri Lanka the defence of these three principles is imperative. What this means is that if these principles are challenged the courts cannot extricate themselves from their duty to safeguard these principles and that the courts cannot abdicate the duty to safeguard these principles. It is the court’s mandate to defend and to protect these principles.
(ii) The very jurisdiction of the courts to adjudicate is grounded on the principles of rule of law, the separation of powers and the independence of the judiciary. If these principles are violated or undermined the very authority of the courts themselves is undermined. Therefore in the event of such violations of the above named principles by any party, including any of the three branches of the government, namely the legislature, executive and the judiciary it is the obligation and the mandate of the courts to take all measures necessary to ensure that any violation or undermining of the above named principles be prevented. The failure on the part of any court of Sri Lanka to do so would amount to the abdication of its own authority and its jurisdiction.
(iii) The principles of the rule of law, of the separation of powers and the independence of the judiciary are the central components of the constitutional tradition of Sri Lanka from its very origin under the British rule in the country.
(iv) The principles of rule of law, the separation of powers and the independence of the judiciary remained the cornerstones of the constitutional tradition and structure of Sri Lanka under the 1972 Constitution as well as the amendment to that constitution brought about by way of the 1978 Constitution. Therefore the authority and the jurisdiction of the courts under the 1972 Constitution and in the amendment brought about to that constitution the authority and the jurisdiction of the courts in Sri Lanka are grounded on these principles. It then follows that the very existence of the court system depends on the prevalence of the above named three principles as the foundation of law in Sri Lanka. From this arises the obligation and mandate of the Sri Lankan courts to ensure the prevention of violation or undermining of these principles by any party including any one of the three branches of the government.
(v) Articles 3 and 4 of the Constitution state categorically that all power in Sri Lanka flows from the principle of the sovereignty of the people. The sovereignty of the people implies that the rule of law, the separation of powers and the independence of the judiciary are an integral part of the Sri Lankan Constitution as there can be no sovereignty of the people is these principles are abandoned, abdicated or violated.
(vi) From the constitutional foundation of the sovereignty of the people it follows that the power of the courts is derived from the sovereignty of the people. As the sovereignty of the people is inseparable from the defence and protection of the rule of law, the separation of powers and the independence of the judiciary the exercise of the sovereignty of the people by the courts implies that the courts have the obligation and mandate to uphold the said three principles and to act uncompromisingly against anyone including any of the three branches of the government if they attack, violate or undermines the said three principles. If the courts fail to uphold this mandate the courts thereby betray the sovereignty of the people.
c) Article 140 of the existing Constitution and the power of the Court of Appeal to exercise writ jurisdiction is impossible if the principles of rule of law, the separation of powers and the independence of the judiciary are violated or undermined. Therefore, a priori, it follows that where the above named principles are violated the Court of Appeal is obligated to use its jurisdiction under these writs. If the Court of Appeal fails to do so it is destroying the very ground of its own authority and jurisdiction and the very capacity to exercise its power and jurisdiction the powers arising from Article 140 which relates to the powers relating to writ jurisdiction.
d) As the obligation of the courts in general and the appeal courts in particular in terms of writ jurisdiction to prevent violations of the principle of rule of law, the separation of powers and the independence of the judiciary is inherent in the very authority and the jurisdiction of the Court of Appeal. The reference to any Court of first instance or tribunal or other institution or any other person is irrelevant and therefore there are no grounds or basis or necessity for the Supreme Court to go into the second question raised by the learned Attorney-General. The very authority of the learned Attorney-General who is the petitioner in this case depends on the operation of the principle of the rule of law, the separation of powers and the independence of the judiciary, the learned Attorney-General does not have the power to canvass a position that destroys or undermines the very institution of the learned Attorney-General’s position itself.
e) As in this particular instance the learned Attorney-General has come to seek clarification of an important matter relating to law as a citizen of Sri Lanka, the Supreme Court should first decide on the matter as to whether any citizen of Sri Lanka has the power to invoke the jurisdiction of the Supreme Court for the destruction of or undermining of the principle of the rule of law, the separation of powers and the independence of the judiciary. As it is self evident that no citizen of Sri Lanka has the power to invoke the jurisdiction of the Supreme Court for the destruction or undermining of the above principles it follows that the learned Attorney-General also has no such power to invoke the jurisdiction of the Supreme Court for this matter as a citizen of Sri Lanka.
f) The learned Attorney-General, by his office is obligated to advise the government of Sri Lanka about the law on Sri Lanka. Therefore the learned Attorney-General is always under obligation to advise the government that the rule of law, the separation of powers and the independence of the judiciary are part of the basic structure of the constitution and the fundamental law of Sri Lanka and that, therefore, any action taken by the government to destroy or undermine the said principles are contrary to the law of Sri Lanka and are ultra vires. The learned Attorney-General therefore has no right to apply to the Supreme Court to support of indirectly support an advice he has given contrary to the above stated position of law.
g) The learned Attorney-General or any other citizen cannot come to court in order to make the Supreme Court a party to an illegal and or unconstitutional demand. The learned Attorney-General, by relying on Dr. Mark Cooray’s extremely erroneous interpretation of law, has posed a fundamental threat to his own position as learned Attorney-General – the advisor on legal matters to the government – and also to the Supreme Court and all courts of Sri Lanka. In fact, the threat is to the very survival of the rule of law and the independence of the judiciary in Sri Lanka in the face of tyranny.
h) The position of the learned Attorney-General is that Article 140 of the Constitution is ‘subject to the provisions of the Constitution’. This term ‘subject to the provisions of the Constitution’ has always been interpreted to mean that no one is above the law and that everyone is subject to the Constitution. Thus ‘subject to the provisions of the Constitution’ implies that the parliament is also subject to the provisions of the Constitution and that the parliament or committee of the parliament is not above the law.
4.9 AG’s Failed to Address the Scope of Parliamentary Privileges under the Present Constitution
a) The major parts of the AG’s submissions are based on the Parliamentary Privileges as known to the British Parliamentary traditions. The Parliamentary traditions have evolved in a historic struggle between the King and the Parliament into a specific constitutional setup. History of the Parliamentary Privileges demonstrates various instances on the dividing line of the competence of Courts and the jurisdiction of the Legislature. The initial approach of the English Common Law traditions was to recognize Parliamentary Practices as a separate branch of Law. However, a closer analysis of the work of English and Commonwealth authors, including Erskin May now recognizes the following principles:
- Parliament has jurisdiction over their own Members in respect of their own conduct;
- Courts will not allow any challenge to be made within the Walls of Parliament in performance of it legislative functions and its established privileges;
- Parliament is the sole authority to deal with contempt of Parliament within the four walls of the house.
Erskin May describes the general conclusion of Jurisdiction of the House as follows:
“it seems to be recognized for the purpose of advocating questions of privilege, neither house is by itself entitle to claim the supremacy of ordinary courts of justice… the supremacy of Parliament consisting of the King and the two houses, is a legislative supremacy which has nothing to do with the Privilege jurisdiction… it is admitted by both Houses, since either House can by itself add to the law, neither House can by its own declaration create a new privilege.”
b) The historic constitutional setting in England saw the emergence of Parliamentary Privileges centuries ago, resulting in a Parliamentary Supremacy. The British Parliament in fact and in Law, enjoyed Judicial Power and still, through Parliament’s House of Lords still enjoys a certain level of Judicial Authority. However, the constitutional developments in England, while recognising its own tradition, in greater extent recognises Legislature supremacy and accordingly, the Parliamentary Privileges have correspondently shrunk limiting arbitrary exercise of known Parliamentary privileges. In 1704, the House of Lords passes a resolution declaring that “neither House of Parliament has power, by any vote or declaration to create to themselves new privileges, not warranted by the known laws and customs of Parliament”. It is significant therefore to note that, English Common Law as it stands now, the privileges of Parliament are limited to the Privileges that existed before 1704.
c) There are no special categories of privileges titled “Powers to impeach” in the United Kingdom as “the exercise by the Lords of Jurisdiction in impeachment by the Commons has fallen into disuse” [Erskin May 23rd Ed. p.73) Therefore, no reliance can be made on the British Common tradition on the Impeachment of Judges.
d) The British Constitutional traditions and system is completely different to the constitutional framework of Sri Lanka. In Sri Lanka, the present framework of the Constitution doesn’t recognize supremacy of any Organ of the State. Equality of all the Organs of the State is recognized in the 19th Amendment determination. The concept of sovereignty is introduced to Article 3 recognizing the inalienable powers of the People, which is implemented through the different organs of the state. Unlike the UK, Sri Lanka has a written constitution where the powers of the different organs are constitutionally set out with their limitations. Thus, the British traditions cannot be applied in toto to Sri Lankan jurisprudence in the field of Constitutional Law. What is more significant is that all branches are subject to the Constitution and to that extent, supremacy, if at all, prevails in the Constitution itself.
e) The AG relies on the British jurisprudence on Parliamentary supremacy and its privileges in order to justify the impugned impeachment of the Chief Justice citing series of authorities, he also brings in an argument that the Parliament has exclusive jurisdiction to impeach a judge of a superior Court which procedure cannot be challenged in Court, in as much as the Parliamentary Privileges protects such procedure. These are two different issues. Firstly, whether the Parliament can act in the manner it has done and secondly, any action of Parliament is covered under the Parliamentary Privileges. There is no authority whatsoever to justify a totally illegal action of Parliament or its committees and state that it cannot be challenge in Courts if it affects a Third Party. All the authorities cited deal with traditional privileges of Parliament which had been recognized in Parliamentary Privileges Act No. 21 of 1953 or English Common Law.
f) The case in point before Your Lordships’ Court is totally different and unique, where an individual is impeached from her lawful office without following due process. The parliament does not have judicial power to decide on such issues as Article 4(c) limits Parliament’s judicial power to its privileges, immunities and its own powers. Article 107(3) requires Parliament to introduce a procedure on all matters relating to impeachment of judges. The fact that Parliament has final authority to impeach is never in question in these proceedings. The moot point is whether Parliament could conduct impeachment procedure on Standing Orders or a specific Law should be promulgated in respect of primary aspects of such procedure.
g) Your Lordships’ Court in SC/Determination of 3/2012 determined that certain aspects such as Burden of Proof shall be introduced only by Law as the Standing Orders are matters of internal conduct of Parliament and its Members. In the absence of such law, no legal consequences can floor and what took place is a nullity. Can a superior or lower court ignore this correct legal proposition?
4.10 The Position of the 12th Respondent
a) The 12th Respondent has unfortunately been deprived of raising his own issues but proceed to make submissions on his position of issues raised by the AG’s case.
b) The position of the 12th Respondent regarding the learned Attorney-General’s list of grounds in support of his prayer to set aside the judgment of the Court of Appeal (Writ) Application No. 411/2012 dated 07.01.2013 is that it does not constitute seven grounds as stated in the learned Attorney-General’s application. In fact, it is merely a single sentence that has been illogically broken into seven parts to give the appearance of a complicated and serious argument. As explained above, it is well established law that the courts have jurisdiction to issue writs on the parliament or parliamentary committee when there are grounds to do so.
c) The 12th Respondent’s position is that the Attorney-General’s application is based on extraneous reasons and not on reasons based on law. The reason is to have the approval or endorsement of the Supreme Court for the removal of Chief Justice Dr. Shirani Bandaranayake. As the learned Attorney-General could not request the Supreme Court to make orders directly approving the removal of the said Chief Justice, this application has been made to achieve this objective indirectly. The legal maxim, that what cannot be done directly cannot be done indirectly, is directly applicable to the Attorney-General’s application in this case. Therefore it should fail in limine on that ground.
d) A further aim of the Attorney-General’s application, related to the matter mentioned above, is also to set aside the interpretation of the Supreme Court made pursuant to the request from the Court of Appeal, bearing No.SC Reference 3/2013. The said interpretation of the Supreme Court represents valid law in Sri Lanka. The learned Attorney-General has not canvassed any grounds against the said interpretation made by the Supreme Court directly and therefore there is no basis for the Supreme Court to make interfered with the said interpretation. The finality expected of the judgments of the Supreme Court will have no meaning under these circumstances. Thus, the law in Sri Lanka would become ambiguous and the role of the Supreme Court in curing such ambiguities would be lost.
e) If the Attorney-General’s prayer for setting aside the judgment of the Court of Appeal (Writ) Application No. 411/2012 dated 07.01.2013 were to succeed, the parliament and the committees of the parliament would be raised to a tyrannical position. That would have disastrous consequences on the entire structure of the constitution and the law in Sri Lanka. The result would be the destruction of the law introduced by Britain and further developed through the statutes and the interpretations of law by the courts of Sri Lanka. In that event, ‘according to law’, ‘subject to the provisions of the constitution’ and ‘based in terms of English Common Law’ would all become irrelevant in Sri Lanka. If the Parliament and parliamentary committees are not acting ‘according to law’ or act against the constitution, and altogether abandon the tradition of common law, the court would lose jurisdiction over any such matters if the Attorney-General’s prayer to set aside the relevant Court of Appeal judgment is to succeed. Thus, despite of the appearance of the Attorney-General’s application being an attempt to ensure action ‘according to law’, ‘according to the Constitution’ and according to the tradition of the common law, in fact the consequence of him succeeding in his prayer to set aside the said Court of Appeal judgment would be to strike an irreparable blow against the law, the constitution and the common law tradition in Sri Lanka as a whole.
f) It is a firm principle of common law, which is well-entrenched in Sri Lanka and other commonwealth countries such as India, that the final interpreter of law in the country is the Supreme Court. If this position is to be lost by implication, the parliament and/or the executive will be placed in the position to be the final interpreter of the law. That is a position that always happens within dictatorships. Thus, the implications of the judgment that the Supreme Court would make in this case has enormous implications on the future of democracy and rule of law in Sri Lanka.
g) The rule of law and the independence of the judiciary are the basis on which the legal system has rested in Sri Lanka. If the Attorney-General’s application is to succeed, both these fundamental notions will be so undermined that the legal system in Sri Lanka would become dysfunctional from the point of view of a rule of law system. If the power that the courts have to issue writs is abandoned, much of the power that the higher courts of Sri Lanka have would be lost and thereby the independence of the judiciary will suffer greatly.
Attorney-at-Law for 12th Respondent
List of Citations
Tom Bingham, The Rule of Law (London, Penguin: 2011) p. 8
Sir John Mortimer QC, Murderers and Other Friends: Another Part of Life (1994) p. 15
John Locke, Second Treatise of Government, chap. XVII, s. 202 (1690; Cambridge University Press, 1988), p. 400
Thomas Paine, Common Sense (1776; Oxford University Press (World’s Classics), 1995), p. 34
Articles referred to
‘Judges and Parliament’ on Judiciary.gov.uk <http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/jud-acc-ind/judges-and-parliament>
Dr. Mark Cooray, ‘Impeachment: PS C fulfilled all requirements’, 11/01/2013, Daily News p. 3; contd. 12/01/2013; contd. 14/01/2013
Victor Ivan and others v Hon. Sarath and Others– 2001 SLR1V309
Heather Therese Mundy v Central Environmental Authority and others, SC 58-60/2003 SCM 20.1.2004
In re Agnes Nona – NLR 53V 106
Visuvalingam and Others v. Liyanage and Others No. (1) – 1983 SLR 2V 311
Manawadu v. The Attorney-General – 1987 SLR 2V 30
Premachandra v. Major Montague Jayawickreme and Another (Provincial Governors’ Case) – 1994 SLR 2V 90
Kesavananda Bharati vs State of Kerala And Anr on 24 April, 1973
The State of Kerela v R. Sudarsana Babu, ILR (Kerela) 1983 p. 661
Rajendra Signh Rana and Ors v Swami Prasad Maurya and Ors (2007) 4 SCC 270
O.S. Manian v Speaker, Tamil Nadu Legislative Assembly (2000) 4 MLJ 121
Raja Ram v Hon’ble Speaker, Lok Sabha and Ors, (2007) 3 SCC 184
Regina Article 143 of the Constitution of India, AIR 1965 SC 745
S. Godavari Mishra v Speaker, Orissa State Legislative Assembly, AIR 1953 Orissa 111
A.J. Faridi v Chairman, UP Legislative Council, AIR 1963 Allahabad 75
Regina: Powers, Privileges and Immunities of State Legislatures, AIR 1965 SC 745
Karnataka v Union of India (1977) 4 SCC 608
Gunupati Keshavram Raddi v Nafisul Hasan and the State of UP, AIR 1954 SC 636