By Colombo Telegraph –
“The Speaker’s ruling may indicate that the government may not abide the decision by the Court in this instance – This possibility exists relating to all decisions that a court make on the constitutionality of any law or other acts of the parliament or that of the executive.” says the Asian Human Rights Commission
“A government could ignore the court, and if does so, it openly violates the constitutional architecture and the law. On no instance should a court desist from making decisions on matters referred to it on the basis that the government may disrespect its ruling. If a court were to take such a view, it would be in no position to decide any matter at all. If the government decides to take a confrontational approach to the Supreme Court, that is a matter left to the government, and upon such an event the outcome should be left to the people to decide what course they should take.” issuing a statement AHRC further says.
We below publish the full text of the statement;
The Speaker‘s ruling relating to the Supreme Court’s notice to the Speaker and the members of the Parliamentary Select Committee does not in any way prohibits the constitutional right of the Court to entertain and to determine the Reference made by the Court of Appeal for a specific question relating to the scope of Article 107 (3) of the Constitution. Since the issue mooted is of utmost importance, various aspects relating to it should be reflected upon on the basis of constitutional principles and logic.
Based on this the following issues could be highlighted:
The basic structure of Sri Lanka’s constitution as a democracy – It is beyond question that Sri Lanka’s constitution is that of a republic and a democracy. In this there is no fundamental difference between the Indian constitution and the Sri Lankan constitution. The Supreme Court of India finally laid the issue to rest through a historic judgment, Keshavananda Bharati vs. Union of India and others. In going into the questions referred by the Court of Appeal to the Supreme Court, the issue of the basic structure of the Constitution of Sri Lanka is an unavoidable issue. All the maters arising out of the Speaker’s ruling should be considered relative to the basic issue of Sri Lanka as a democracy. The Speaker’s powers need to be looked at within the constitutional architecture that defines Sri Lanka as a democracy.
Any reference to the ultimate supremacy of the parliament should only be understood with reference to the overall consideration of Sri Lanka as a democracy. Such phrases as “supremacy of the parliament” should not be given any meaning that will be detrimental to Sri Lanka’s constitutional structure as a democracy.
The Speaker’s ruling cannot limit the power of the Supreme Court to decide on the constitutionality of any matter – It is a settled principle that the primary opinion on the question of constitutionality of any issue is with the judiciary. To hold otherwise would be to deviate from the basis that Sri Lanka is a democracy.
Even a decision of the parliament arrived through a vote in the parliament is subject to judicial review – There is no limitation for the Supreme Court’s authority for judicial review concerning any decision of the parliament or that of a Select Committee constituted by the parliament. The Court has also the power to review the material on which the decision of the parliament or that of the Select Committee is arrived at. The Indian Supreme Court in the S. R. Bommai case has dealt with this matter in great clarity.
The cornerstone of the objection concerning the impeachment process is that a Parliamentary Select Committee cannot exercise judicial power and that such a Committee cannot be considered an impartial and a competent tribunal to decide on the matters relating to the charges against the Chief Justice. This being so from the beginning the functions of the Select Committee in this regard would have no impact on law and could not this lead to any valid decision relating to the impeachment. Therefore the Court has the jurisdiction to declare the legality and the constitutionality of such a process and to declare it void.
The Court has the power to examine the material on which the decision is made – the decision of the Select Committee that is acting as a tribunal cannot lead to a valid decision, and therefore even if the parliament is to vote in favour of an impeachment on the basis of such finding the court has the power to declare such a decision as one that violates the constitution.
The actions of a Select Committee or the Parliament are actions of the government and therefore the court alone has the jurisdiction to review the constitutionality of any such action by a government – The decision relating to the impeachment and the process thereto are not different to any other action by the government. These cannot be claimed as exceptions to the rule that the court has the power to examine the constitutionality of any action of the government.
On the basis of the above considerations the ruling of the Speaker is of no practical importance to the substantive issues relating to the impeachment – Since no substantive issue rests on the Speaker’s ruling there is no reason to give any serious consideration to this ruling as a substantive obstacle to the Court entertaining its jurisdiction in the matter.
The Speaker’s ruling may indicate that the government may not abide the decision by the Court in this instance – This possibility exists relating to all decisions that a court make on the constitutionality of any law or other acts of the parliament or that of the executive. A government could ignore the court, and if does so, it openly violates the constitutional architecture and the law. On no instance should a court desist from making decisions on matters referred to it on the basis that the government may disrespect its ruling. If a court were to take such a view, it would be in no position to decide any matter at all. If the government decides to take a confrontational approach to the Supreme Court, that is a matter left to the government, and upon such an event the outcome should be left to the people to decide what course they should take.
K.A Sumanasekera / November 30, 2012
Aren’t these people supposed to protect the rights of poor, vulnarable and weak people who are the majority in all nations.
Latest count is there are one billion of them on earth today.
Here is an issue where a Govt, elected by a great majority trying to streamline a major source of assistance to the rural ,and vulnarable poor to make their lives a little bit better.,
As a Human Rights Guardians one would think these overseas based organizations would sympathize with the under privileged and encourage any assistance to lift their living conditions.
But this Asian mob, seems to think that the human rights of a CJ is more important.
M Y Foote / December 1, 2012
Oh my god! there are people like you in this the 21st Century
P.Riyad / December 2, 2012
And fools like you too..the AHRC mob are anti-Asian goons who have no place in our society.
Silva / December 2, 2012
And there are these dollar hungry donkeys like K.A Sumanasekera who are intent on earning a filty existance on the suffering of the poor! What the fucking streamlining you talk about? All these years the Samurdhi mechanism served the people the way it did and it could accommodate even more if the government wants using its existing mechanism. Even though the pathola type lunatics like Sumanasekera do not understand or pretend not to everyone knows this regime of rogues are trying to plunder the money in the Samurdhi fund!
K.A Sumanasekera / December 4, 2012
If you pull the head out of your ass, you may see at least some of the great changes occuring around you, to give the rural poor a fair go after fifty years of indipendance.
Perhaps you lot can’t stomach that.
kamal nissanka / November 30, 2012
Speaker and the PSE members were sent a notice. It is up to them whether to abide by it or not. If they do not come to courts or appear through lawyers, the court has no option but to hear the cases EX-PARTY and go for its determination.
M Y Foote / December 1, 2012
I guess this is where it is heading and the outcome looks ominous
James Bond / December 1, 2012
Like his singularly UNEDUCATED and UNCULTURED brothers the speaker, Chamal Rajapakse is a man of zero intellect and NO judgement. He holds his post and is running a Kangaroo Court, bringing disrepute to the Sri Lankan people, parliament, and judiciary, by virtue of family dictatorship and nepotism. Chamal Rajapassa’s opinion is not worth the paper it is printed on!
The sad fact is that CR would not even be able to differentiate between substantive and formal issues, being of untrained mind. It is the responsibility of the Krave Ranil Wickramasinghe to pull out of the PSC Kangaroo Court and challenge its legitimacy in Court.
Cynthia / December 1, 2012
Well said James Bond ! Agree with you fully .
Is not it a misfortune for Sri Lanka that this uneducated and
uncultured gang was born to ruin this country?
We cannot depend on lethargic Ranil to save it.
The Patriots must take on the responsibility.
Jayantha / December 1, 2012
He should be able to read and understand English first before Knowing court of Law.
What can you expect from an ex. Police and Security officer….turning Speaker of the house….A house made of all excesses……..
Safa / December 1, 2012
Court can proceed on ex-parte judgement binding on the speaker and PSC. Parliment has no right to conduct a kangaroo court within its precints. Memebers of the PSC do not come within the definition of judicial officers as given in the constitution and have no business sitting in judgement. The PSC is a flawed and farcial process that has no standing in law.
Leela / December 1, 2012
“Speaker’s ruling cannot limit the power of the Supreme Court to decide on the constitutionality of any matter” Needless to say this is just another effort to undermine the government authority.
Simple question that comes to my mind is that which country has the democracy that AHRC spokesman is talking about: “The basic structure of Sri Lanka’s constitution as a democracy – It is beyond question that Sri Lanka’s constitution is that of a republic and a democracy?”
But Asian Human Rights Commission doesn’t talk of CJ chooses and selects the judges that judge all cases including the ones that filed to stop PSC procedures to investigate her behaviour. It doesn’t talk CJ’s husband is being tried for corrupt NSB share purchase. And CJ is in charge of promotion, demotion and transfer of that magistrate (judge). These are what we villages call ‘horage ammagen pene ahanawa’ roughly translated as, ‘asking response from thief’s mother’. Should CJ head the judiciary? In my opinion, these people should ask her to resign first and then talk of democracy.
It is obvious that (I)NGOs and their pay masters are behind all these people that come forward to defend our democracy. And their aim is to ‘change regime’ that they cannot change through ballot by Arab spring type commotions. They should know that we have elections periodically and they too can put forward their stooges and win. What more democracy than that?
Silva / December 2, 2012
Even though we see and read from maggots like Leela and there are periodical rigged elections it does not mean we have democracy! And by the way brat Leela, what happened to your much typed wave of victorious elections which you began from Eastern province recently? Aren’t you and your uneducated uncultured bastards hell afraid of conducting elections now? I challenge you to hold a single election if possible hereafter. I also challenge you rogues to conduct free and fair elections under international monitoring if you are so democratic! You can’t. You are so afraid of people and elections! That is why you all are trying to chase CJ and appoint a maggot brat licking the assholes of the Rajapakshas so that they can obtain mararized, biased, wrong and deformed court decisions! Bear this in your muck filled brain well; your days are numbered. Your doom’s day is around the corner. Now it does not matter whether your sugar daddy removes or keeps CJ. The whole judiciary has turned anti-Rajapaksha now! And this acts as a catalyst now! There would be millions now who would turn antagonist to your bastards’ regime! Find out a culvert to hide soon! By the way, since you have experience in political prostitution you could just as well find accommodation in one of the brothels Mervyn Silva has planted!
S k. weerasena / December 1, 2012
None of the parliamantarians would understand the constitutionality of their action as their minds are clouded with sense of greedy for power crushing the fundemental rights of people guranteed in the constitution.I curse for all those people who had come to power from the votes of ill educated people of this country and trying to destroy the the inalianable rights of same people using the power they got from the masses.
Athula / December 1, 2012
This what National newspaper (state owned) said about CJ on 11th May 2011
She has silently waited on the sidelines, content only with performing the duties assigned to her. She had functioned as the acting Chief Justice on a dozen or so occasions, creating history again as the first female Judge to do so.
She is credited with the record of never having gone abroad on State funds during this long period in office, a shining example to all public officials and politicians, in these days of over-indulgence in perks and privileges.See how they treat her now
P.Riyad / December 2, 2012
Yes, waited silently on the sidelines and up to all fraudulent acts with husband.
douglas / December 1, 2012
what a circus this is? Constitution v Judiciary. Legislature v Judiciary. Parliament v Chief Justice and then Conspirators v Government.
Whether it is right or wrong the “Impeachment of CJ” has commenced and what the process of its proceedings are not available to the Public. Infact the Government has ruled that it’s proceedings are not to be made public and went to the extent of “tabooing” the members of the Legislature/Media discussing the very “charge sheet” issued to the CJ.
But has this ruling being observed? The Sri Lanka Broadcasting Corporation (SLBC) once said (by its own Chairman) that they will refrain from discussing the case before the PSS. Please listen to the SLBC Chairman Mr.Hudson Samarasinghe on “Dasa Desin” programme aired at 7.00 a.m. daily, the way this is openly discussed. The very charges are taken for discussion and analysed and the CJ is openly accused and found guilty already.He has also started a contest for the “Three Wheel Drivers” to apply for a “Sing a Song” competition and some of the contestants are already on air praising the “programme”. I knew this was a very subtle move and it’s intentions were well displayed yesterday when the “Three Wheelers” protested at the Colombo Courts complex against the CJ. Yesterday the HE President himself made reference to some matters before the Supreme Courts and boldly stated that “some who could not achieve through a war, is trying to achieve same through courts”. Apart from that, this Impeachment matters were openly discussed in Parliament during Committee stage debate on the votes of the Justice Ministry.
The latest “theatrical is the “Regime Change” through “Arb Spring” type commotion. It is not Leela who only said this. The first to say this was Hon’ble the Minister Mr. Wimal Weerawansa and remember he is also a member of the PSC.
If at all an “Arab Sprng” type “commotions” get started who is responsible and who is to be blamed. Please remember, no one else, other than the very people who govern this country and supply ammunition to the cause by mismanagement, corruption, nepotism, open violation of laws of the contry and its Constitituion.
Jayantha / December 1, 2012
douglas: Here’s what is truth…..
MARA is using the words like…Regime Change, Foreign Coup, Tamil diaspora terrorists to topple Govt. ect..etc..
Actually MARA’s ultimate dream is to become the next King in sri lanka according to his ASTROLOGERS PREDICTMENT, and blinding the public with these false allegations.
After taking over the parliament, his next step was to kick out the CJ and take over control of the Judiciary so the whole country is under his authority.
I wrote two comments which I attach here which will prove his ultimate dream of becomming the next king.
No where in the history in the world what MARA did to Sri Lanka’s parliement..ie. bribing and buying over 100 opposition MP’s to cross over to fulfill his dream of becomming another dictator.
What MR is doing to judiciary is to jump the last hurdle to endorse to be the next KING…COCONUT ..in Sri Lanka as his astrologers have told him.
The disappearance of swards, rings,battons, coins etc, from museum, cutting valuable sandlewood trees and making chairs, tables and beds for MR are few of them. There can be so many other underhand stuff that we readers don’t here may be going under the nose of media and public.
The citizens, religious dieties, judiciary,trade unions,opposition parties, diaspora and the International community will decide his astrological predictions whether MR ENDS UP IN THE KINGS THRONE….OR IN VELIKADA PRISON.
Silva / December 2, 2012
Jayantha, you are wrong! MARA and Leela will not end up in Welikada but under a culvert or a sewerage gutter!
Leela / December 2, 2012
NO, NO. You didn’t get it right, Douge. There is no Arab spring here. Only, those who failed to ‘change regime’ by ballot have been trying to do it by Arab spring type commotions.
We can read the signs: Usually courts issue orders. We never have seen such orders or notices issued in a polite and cautious language. Here we are; the Supreme Court notice on the speaker and PSC members were written in a very mild and courteous tone; a clear sign of a looser or an underdog of a contest, is it not?
The Speaker, on the other hand, was very assertive. He said; “On careful consideration of this matter, I wish to convey to the House my ruling that the Notices issued on me, as Speaker of Parliament, and on the Members of the Select Committee appointed by me, have no effect whatever and are not recognized in any manner.” He continued to assert his order; “I declare that the purported Notices, issued to me and to the Members of Select Committee are a nullity and entail no legal consequences.” The he finally drove the nail; “I wish to make it clear that this ruling of mine as Speaker of Parliament, will apply to any similar purported Notice, Order of Determination in respect of the proceedings of the Committee which will continue solely and exclusively under the authority of ….”
There was no ambiguity or vagueness; a clear sign of a winner.
Jayantha Pieris / December 2, 2012
“…NO, NO. You didn’t get it right, Douge. There…”
We are already seeing the trembling and stuttering! Wait a few more days and witnesses the “polite mild and courteous tone” of the judiciary and people! The crabs danced inside the pot only until it got heated up!!!!!
“..The he finally drove the nail; “I wish to …” Go and drive your finger in your a..h..e!!
Gihan / December 2, 2012
CT, although the facts you put forward are correct in relation to this corrupt and despotic regime you cannot overcome the constitutional hurdle that is there in the constituent in case of an impeachment. The PSC is a constitutional body and the judiciary cannot undermine its functions. However the judiciary has ways of tackling this such as: the unjustified composition of the PSC, the biased nature of its members from the ruling side, their former convictions and court cases, their unsuitability to act in judicial capacity, the concept that not only that justice must be served but it must be seen done, the illegal methods used to obtain bank account details, the strong disproving of the alleged charges by CJ’s submissions, the covert yet overt circumstances and motives why the regime wants to remove CJ, the mere stance of a former Speaker may not always be the ultimate truth that must be followed forever, due to the unreasonable and irresponsible conduct of the government the judiciary too can ignore the Legislature and the Executive and conduct independently leading to the entire collapse of the governance in the country and then people will have to employ their Sovereignty to establish another government and another constitution, the strong possibility of invoking international intervention and mediation into solving the issue in par with international standards and customs, judiciary taking a bold stance to revisit and revise all unsolved pending suspended cases relating to government politicians and deciding on them which would result in sending most in the regime to prisons, the opposition and all the anti government elements will readily support the judiciary in their efforts etc.!
douglas / December 2, 2012
Leela – Thank you. I never said there is a “Arab Spring” in Sri Lanka, but what I did say was that the Authorities in power must not leave any room for such an event. Also, I said that if those in power act in such a manner for a “Arab Type” commotion to occur, then they must bear the responsibility and face the consequences.
Please think deep and you would realize that it is those “Powers” in Governance are the root cause for any commotion and it is the responsibility of them not to leave room for anyone (outside or internal) to make use of a weakness to exploit a situation to create trouble. That is what I intended to communicate.
In management there is a term called “Disinhibition” and when those in Power are affected by this, they do not “regulate their actions and behaviour”. So those “Authorities in Power” have to be careful at all times and regulate actions for the common good and not make use of it to achieve personal objectives of “being in power”.