By Reeza Hameed –

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.