25 September, 2020

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The Idea Of Parliamentary Supremacy Is As Much Colonial As It Is Obsolete

By CPA –

Dr Paikiasothy Saravanamuttu - CPA

The Centre for Policy Alternatives (CPA) welcomes the judgment of the Court of Appeal quashing the decision of the majority of members of the Select Committee of Parliament delivered on 7th January 2011, and the determination of the Supreme Court issued last week in respect of the question of constitutional interpretation referred to it by the Court of Appeal. The determination of the Supreme Court held that the investigation and proof of charges brought against a judge in an impeachment motion must be exercised by a body established by an Act of Parliament, and not by one established by Standing Orders of Parliament. The Court further held that matters concerning the mode of proof, burden of proof and standard of proof relating to the charges in an impeachment motion must also be specified by legislation.

The Court’s robust defence of the “immutable Republican principle of the independence of the judiciary,” and its reiteration of the fundamental importance of the rule of law underpin its interpretive arguments.  For this reason, the determination represents an important precedent for the supremacy of constitutional values over claims of parliamentary immunity. Moreover, by asserting the jurisdiction to review the legality of Standing Orders that affect the rights of citizens, the determination decisively rejects the notion that Parliament is supreme. The idea of parliamentary supremacy is as much colonial – being a feature of English constitutional law – as it is obsolete. The Court’s determination, which emphasizes the sovereignty of the people and the supremacy of the constitution, is an important judicial reminder that the plausibility of constitutional arguments must be judged by reference to first principles of constitutionalism, and not inappropriate invocations of unconstitutional values and outdated doctrines.

Of more immediate relevance, given that questions over the legality of the impeachment process against the Chief Justice have now been settled definitively by the Supreme Court and Court of Appeal, it is imperative that all parties concerned comply with the law. Failure to do so will not only be in open contempt of court, but will also precipitate a dangerous constitutional crisis that the country can ill afford. In this respect, we are deeply concerned that the government has taken steps to hold a debate on the Resolution against the Chief Justice. We express our sincere hope that the rule of law will prevail, and that judicial determinations will be fully complied with

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Latest comments

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    All must welcome this statement. CPA maintained a studied silence for sometime and coming from an important civil society actor, who moved SC on a number of occasions even when it was not quite clear if the judiciary quite as well grasped its role in a huge vortex of power (the executive and its different arms), this is significant.

    One issue with this statement, yet again, is its careful omission of the references to more articulated pronunciations on the so called supremacy of the Parliament from the Left of the Chambers. I’m not sure if our society (and actors like CPA) now has the luxury of indulging in such subtleties, specially as the arms of the judiciary that made these determinations and issued writs have no time nor space for extending their role for dispelling such myths. Isn’t it part of the wider role of actors such as CPA?

  • 0
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    Is the media attempted to justify arbitrary procedure of impeachment, most of the restrictions on free media was imposed by the Judiciary. Now the government is using media to suppress the Judiciary.

    There are restrictions on trade unions they find it difficult to support Judiciary. The rights of the opposition politicians need to be resorted immediately. Judiciary need to guarantee the freedom of expression for all citizens. Government media has given an impression Judiciary is corrupt. if there was a free media the public opinion would have been other way around.

  • 0
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    Who paid you to say this Mr Paki, US Embassy or the British, Norwegian, Danish, German or someone else?

    Please provide that information when you write in the future.

    • 0
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      The Critic @ above:

      It i like this. If a wife is continuously beaten by a husband, a relative speaking on your behalf should be welcome irrespective of the fact whether the relative has been paid by your neighbour.

      What is needed at that point is the emancipation of that brutalised wife from the brutality of the husband.

      Why look for impertinent issues like who paid whom?

    • 0
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      Dr. PS is telling the truth.

      Lee

    • 0
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      Does it matter who pays him for his efforts to enlighten the misled people of the true state of affairs of the country. It is necessary that a common fund be set-up both with local and foreign funds to strengthen the courageous people like Pakiasothy, organisations like the Friday Forum and other civil society groups who are with the limited resources available to them and disregarding intimidation and threats to keep the people alert on the dangers confronting the freedom and liberty of the people.

    • 0
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      What is going on here? Let see, oh… The Critic!
      You are on the wrong queue mate, that line is for dental surgery.
      Strait and then at right turn, you will see the big sign.
      TREATMENT CENTER FOR MENTAL ILLNESS.

    • 0
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      When terrorists are running the country what does that matter. Are you bought by this terror outfit?

      • 0
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        You mean the state terrorism we could now see under which even members of the same party are being killed to strengthen individual corrupt power.

    • 0
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      Just because USA, Britain, Norway, Denmark,and Germany are interested in funding overseas organizations to develop democratic rule in the respective countries does not mean that those organizations are not legitimate. In a country like Sri Lanka where funding for such organizations are not available there is nothing wrong in accepting funding from overseas governments. It is similar to Sri Lankan government going with a begging bowl to borrow money from China at a very high interest rate. In actual fact, getting funding from a foreign government by CPA is less harmful than borrowing money on short term with strings attached and high interest rate from China. When we do not have democracy in Sri Lanka then other countries will step in to establish democracy.

    • 0
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      You are a cretin.

      Truth hurts those who are afraid of it. Rajapaksa is digging his grave deeper and deeper every day. Keep worshipping him while he is alive. Once he is gone I bet you will join the others in spitting on his grave.

    • 0
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      no he is paid by LTTE

    • 0
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      The Critic I saw one of MRs henchmen hand over the money and I was there when the money was handed over. When I asked him why he said MR just wanted a healthy debate.

  • 0
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    Further, isn’t it imperative to state that in much clearer terms, given UNP’s just reported decision to participate in the “debate”?

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      UNP did not go to the CA because UNP (nay RW) wanted to assist the government in this regard. If it is reported that they are going to participate in the impeachment debate, again it is nothing but to assist the government to oust CJ. Surely RW is grateful about the luxurious hotel accommodation in Italy by the government.

      Lee

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    The UK’s Foreign and Commonwealth Office in London is fully aware of the offensive conduct of the present regime in Sri Lanka, undermining the rule of law and the pronouncements made by the Judiciary against the impeachment of the CJ on certain charges hitherto untested. It is also aware that all remedies available to the native people have now been exhausted. In this environment the UK government is likely to express its serious concerns about the lawlessness in its former colony. And if the Govt of Sri Lanka failed to honour and respect its constitutional obligations to the people, whose sovereignty has been abused by the present Executive and the Legislature, the UK with its allies may declare Sri Lanka a ‘FAILED STATE’ and that may also lead the UK to boycott the Heads of the State summit of the Commonwealth scheduled to be held in Colombo this year.

    • 0
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      who cares about it. if they dont want to come let it be. Sri Lanka is not under UK any more. we can handle our things

      • 0
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        No you cant you stupid

  • 0
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    Sara’s comment could not have been more terse and /or
    succinct
    Subra

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    Dr Sarawanamuttu is deeply concerned that Members of the Parliament of the Reppublic of Srilanka are going to debate whether the country’s Chief Judge is fit to dispense Justice.

    He insists that all inhabitants must comply with the law.

    Wonder whether Dr Sarawanmuttu was this much concerned when nearly a third of the country was totally out of bounds to the Justice System, including the CJ.

    Are there any records of Dr Saawanamuttu asking the inhabitants in that third of the country to comply with the Law?.

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    The concept of supremacy of the Parliament is derived from the concept of sovereignty of the people. It is the people who elect their parliament through their representatives at periodic elections held from the politics parties that vie for power and governance.In the context of present Sri Lanka parliament the so called supremacy of parliament is subject controversy because sovereignty of the people does not reside in it to the correct measure as was given it by the people at the general election of 2010.The peoples sovereignty that was evidenced in that election was subsequently vitiated and castrated by the ruling party that manged to allure into their fold more than sixty immoral and selfish elected members who ditched their political party and sovereignty of the voter(people) for dirty lucre and position that was by then was constitutionally possible due to a loony piece of jurisprudence by an equally lunatic ex-chief justice who not surprisingly has turned out to be an apologist of the phony concept of supremacy of the present parliament.

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      Mahanama,
      You are correct.The 29 National List MPs were not elected.The more than sixty “Cross Overs” no longer represent the parties from which they contested,nor the wishes of those who elected them.
      Thus the present government does not represent the majority of the voters of the state.
      Thus this parliament has a 2/3 rds majority of which, the major portion do not represent their voters.
      Thus,this government has no moral authority to govern.

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        The regime has no moral authority but the legal authority to the regime was given by the bast**d Sarath Silva who is again giving support to the regime.

        Sri lanka is a laughing stock of the world. Can’t wait for the UNHRC to start!

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          Nothing can be done in UNHRC. China will oppose that. Leaders cannot be taken to an ICC, SL is not a signatory to Rome declaration.

  • 0
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    Wimal Weerawanse,the 9th standard-passed drummer boy supreme?
    Rajitha the mouth stinker supreme?
    Johnny the 8th standard -passed philanderer supreme?
    Begal Yapa supreme?
    Prem Jayanth the petroleum inhaler supreme?
    Na Ra the synthetic lawyer and race car-idiot supreme?
    BaRa the ten percent man who hasn’t pased the O level supreme?
    Cha Ra the poilce constable supreme?
    Go Ra the 7-Eleven counter boy supreme?
    Merv the murderer supreme?
    My God,what supremacy is this?

  • 0
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    As Dr PS implies, the concept of parliamentary sovereignty, which evolved from the Glorious Revolution of 1688, is now outdated and belonged to the colonial past.

    We have to accept the fact that the advanced western democracies are
    the unchallengeable arbiters of world affairs. What we have is a “New World Order”.

    Let’s embrace the more progressive concepts of the “New World Order” !!

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