24th June 2001
The lore of the Queen of Sheba is set there, as is what some consider the eighth wonder of the ancient world.
A journey through Ethiopia can be an intellectual and spiritual awakening. The African nation's cultural evolution begins in the ancient city of Aksum.
This former capital dates back to about 100 B.C. Later it was the first place in Ethiopia to adopt a new faith _ Christianity.
At Aksum's heart lies the legend of King Solomon and the Queen of Sheba. It's the birthplace of the queen, who, according to the Old Testament, traveled to the Holy Land _ which now includes the modern state of Israel and the Palestinian Territories _ to meet Solomon. They had a son, Menelik, who became the first emperor of Ethiopia.
To this day, Aksumites say the ark, which once housed the Ten Commandments, is hidden in a building there and guarded by a select group of monks whose lives' work is protecting the sacred vessel.
Many monuments in and around Aksum are more than 2,000 years old. Massive, towering sculptures erected during the Aksumite Empire pay homage to a mysterious past.
Walking among the remains of the Queen of Sheba's palace, or standing at her bathhouse, it's hard not to be overwhelmed with a feeling of timelessness.
Today, Ethiopia's religious traditions are reflected in various aspects of everyday life. But nowhere does this spiritual energy echo more clearly than in the monolithic churches of Lalibela, which attract thousands of pilgrims every year during the major holy day celebrations.
The churches were built by King Lalibela, youngest son of the royal
line of the Zagwe Dynasty, which at the time ruled much of Europe. Poisoned
by his brother, Lalibela fell into a three-day coma. During that time,
it's said he was transported to heaven, where God told him to return to
Roha and build churches the likes of which the world had never seen. _
Hon. Members, I wish on this occasion, to make a statement concerning an issue which is of the utmost importance and vital concern to all members of this House, which has been occasioned by an unprecedented event which occurred two weeks ago namely, the issue of two orders by the Supreme Court seeking to restrain me, as your Speaker from appointing a Select Committee of Parliament under and in terms of Standing Order 78A of the Standing Orders of Parliament.
<-- How The Sunday Times exclusively reported it.
They purport to be made by the Court as interim measures prior to the final determination of two Applications SC FR 297/2001 and SC FR 298/2001 in which the Petitioners allege that there is an imminent infringement of certain fundamental rights to which they claim to be entitled by reason of the envisaged appointment of a Select Committee in terms of the aforesaid Standing Order, pursuant to the notice of the resolution received by me from certain members of this House.
The further orders contemplated in the two applications made to the Court, are of a very far-reaching nature and if granted would entail a stoppage of the contemplated proceedings under Standing Order 78A, which Hon. Members would be pleased to see is a complete and decisive intervention, amounting to an interference, with the internal affairs of the House, over which this House alone is complete master and in sole control. This is a right and privilege which elected Legislatures of this country have long enjoyed and claimed to possess without it ever being challenged by any Court or other authority ungirdled by the laws and the Constitutions that have governed our affairs.
But considering the fact that the questioning of this undoubted right and privilege emanated from the apex Court of this country, I have thought it fit to give the matter the most careful consideration and have sought the advice of learned counsel in the elucidation of this question, which has given rise to controversy. I have done my own researches into the problem on this matter which only confirm my long-held convictions of the plenary freedom and autonomy of Parliament in the conduct of its own affairs and my intuitive resistance against all attempts from external sources to intervene in this exclusive sphere - a conviction borne out of my own experience as a Parliamentarian which stretches for nearly a quarter of a century.
I am also deeply conscious of my responsibility and obligation as your Speaker and as the custodian of the historic rights and privileges of this Assembly and its members, to be ever vigilant against such intrusions from any place outside this House, which have the effect of impeding the conduct of the affairs of Parliament on the supposed ground of enforcing the constitutional or legal rights of others. These rights and privileges are considered to be essential to the proper performance of the functions and duties of this House, and they constitute the collective inheritance of Parliament, empowered by the law of the State that neither the Speaker nor any single member of the House can renounce or surrender or otherwise abrogate. Any such right, privilege, immunity or power does not cease unless it be by legislative amendment of the current law. The law on this subject is set out in the Parliament (Powers and Privileges) Act 1953 as amended by Law No. 5 of 1978 and Act Nos. 17 of 1980, 25 of 1984 and 37 of 1987 and 27 of 1997. This Law has all along been acknowledged to be the governing law by the courts of this country whenever any such question arose for determination and the Courts have upheld the rights, privileges, immunities and powers of Parliament whenever they arose for consideration. No other law can be regarded as superseding this law as the Constitution itself recognizes its continuing legal efficacy, until Parliament decides otherwise.
If I may briefly summarize its main provisions, the present law on this subject came to be enacted in 1953 when the Constitution Order-in Council of 1946 as amended was in force.
The foundations of the law relating to the powers, rights and privileges of Parliament rest on the necessity "to maintain its independence of action and the dignity of its position" (Halsbury Laws of England Vol 34 (4th Ed) para 1479). The exclusion of the jurisdiction of the Courts to exercise any control over the acts of the Speaker and the officers of the Legislature, has been recognized in our own law for well over half a century. It was so provided in Section 29 of the State Council (Powers and Privileges ) Ordinance No 27 of 1942. It is a historic privilege recognized in the United Kingdom from ancient times and forms an integral part of our system of parliamentary democracy which has drawn heavily from their practice in the development of our own traditions. As was observed by Stephen J in Bradlugh v. Gosset (1884) 12 QBD 271 at 278 " I think that the House of Commons is not subject to the control of Her Majesty's Courts in the administration of that part of the statute law which has relation to its own internal proceedings.......... It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly (pg 280 - 281 .....
As was observed by an eminent judge of our own Court H.N.G.Fernando (as he was then) in Attorney-General v. Samarakkody (1955) 57 NLR 412 Section 3 of the Parliamentary (Powers & Privileges) Act 1953 is an adaptation of Article 9 of the Bill of Rights. In that case in proceedings taken under Section 23 (1) of the Act on an Application made to the Supreme Court on an allegation that the Respondents were guilty of an offence triable by the Supreme Court, it was held that the conduct of the Respondents, even if it was disrespectful was not justiciable by the Supreme Court. It was considered to be conduct within the scope of Section 3 and 4 of the said Act and could not therefore be questioned or impeached in proceedings taken before the Supreme Court. The jurisdiction to take cognizance of such conduct was accordingly deemed to be exclusively vested in the House of Representatives. Fernando J said at pg 422 in unambiguous terms:-
"If therefore the conduct of the Respondents of which complaint is made in the application falls within the scope of "speech debate or proceedings in the House", within the meaning of Section 3 of the Act, then clearly the Court has no jurisdiction to question that conduct."
The relevant statutory provisions with reference to the question raised are the following:
Section 3 of the Parliament (Powers & Privileges) Act of 1953 which, inter alia, states that proceedings in the Parliament "shall not be liable to be impeached or questioned in any court or place out of Parliament" is crystal clear in providing for complete autonomy of decision by Parliament and unfettered control over its proceedings and in inhibiting any external interference over its internal affairs. This is further reinforced by Section 4 of the Act, which provides that "no member shall be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of anything which he may have said in Parliament or by reason of any matter or thing which he may have brought before Parliament by petition, bill, resolution, motion or otherwise. Likewise Section 6 of the Act provides that "no person shall be liable in damages or otherwise for any act done under the authority of Parliament and within its legal powers." There is in addition a considerable reservoir of powers, privileges and authority, that has been conferred on Parliament by reason of Section 7 of the Act which provides that "Parliament and the members thereof shall hold, enjoy and exercise, in addition to the privileges, immunities and powers conferred by this Act such and the like immunities as are for the time being held, enjoyed and exercised by the Commons House of the Parliament of the United Kingdom and by the members thereof."
The cumulative effect of these provisions in my opinion, place the question of the exercise of the Speaker's powers wholly outside the control of any court. Indeed, Section 9 of the Act expressly provides that "all privileges, immunities and powers of Parliament shall be part of the general and public law of Sri Lanka and it shall not be necessary to plead the same, but the same shall in all courts in Sri Lanka be judicially noticed." It is difficult to appreciate how, notwithstanding these statutory provisions paragraphs 37 and paragraphs (c) (d) (e) of the prayer in each of the Petitions came to be included and on what basis the Court's jurisdiction came to be invoked in respect of proceedings in Parliament.
I am unhesitatingly of opinion that the declaration sought in paragraph (c) and the two orders sought in paragraph (d) and (e) of the prayer to the petitions are clearly situations when a proceeding in Parliament is sought to be impeached or questioned, and such conduct is prohibited by Section 3 of the Parliament (Powers and Privileges) Act 1953, which the Speaker ought in law to resist and is obliged to object to, on behalf of Parliament and the sovereign rights to which it is heir. I am fortified in this conclusion by a consideration of the British practice. The embargo on any external interference or intervention in respect of proceedings in parliament is of special significance for the effective control over the business of Parliament. Erskine May 22nd Edition (1997) states the rationale for this doctrine as follows:
"Since parliamentary privilege is a means to a collective discharge by each House of Parliament of its functions, occasions have arisen and will continue to arise when one House or the other is content not to insist upon its privileges either generally or in a particular case.....there is, however, an area where such considerations do not arise. Article IX of the Bill of Rights, 1689 lays on courts an obligation not to "impeach or question proceedings in Parliament."
The prohibition is statute law and, unless there has been amending legislation, the protection it confers cannot be waived or not insisted upon by either House (see pgs 93-97 of Erskine May). He cites at footnote 6 the following case:
"It was held by Lord Heatherley L.C. in Duke of Newcastle v. Morris (1870) LR HL4, 668 that a privilege of Parliament established by common law and recognized by statute should not be abrogated except by express words in a statute" (Erskine May- pg 66)
I am of opinion that the legal position is no different in Sri Lanka, especially because Section 9 of the Parliament Powers and Privileges Act which makes such immunity part of the general and public law of Ceylon" and which makes it obligatory for all courts to take judicial notice of it, even when not pleaded.
The foregoing decisions of the Courts of the United Kingdom have been followed in Sri Lanka being in accord with the law of this country. - vide Attorney-General v. Samarakkody (cited earlier) and the recent case of Gomes v. M.H.Mohamed, Speaker of Parliament (1991) 2 SLR 408 where the Petitioner sought writs of Certiorari and Mandamus against the Respondent who was the Speaker of Parliament.
The Petitioner in that case alleged that having entertained the notice of a resolution, seeking the impeachment of the President R. Premadasa under Article 38 (2) (a) on 28.08.91 he had instead of performing his constitutional and statutory functions, under Article 38 (2) (c) had informed His Excellency the President that he "ceased to entertain" the resolution which he had earlier accepted. The Petitioner sought to quash the later decision which claimed to "cease to entertain" and compel by mandamus the performance of the subsequent steps required to be done under Article 38 (2) Wijeyaratne J observed at pg 414, "Undoubtedly these are statutory duties laid down in the Constitution but nevertheless they are part of the proceedings of Parliament, therefore this Court is precluded from examining these matters."
I have not derived any useful assistance from a consideration of the Indian judicial decisions on this question since there are fundamental structural differences in both Article 122 (1) and Article 212 (1) of the Indian Constitution. Under those provisions the courts are precluded from inquiring into the validity of any proceedings in parliament and State Legislature respectively" on the ground of any alleged irregularity of procedure" and not on any general ground of illegality or unconstitutionality, unlike Section 3 of the Sri Lankan Parliament Act which contains no such limitation or restriction. In India it would therefore appear that the immunity in respect of proceedings is granted only where the validity of the conduct is sought to be impugned on grounds of noncompliance with procedure. Accordingly, the reasoning in Indian judgments would not apply here.
It is my view that the right of the Speaker to appoint a Select Committee in terms of the said Standing Order 78A is also a proceeding of Parliament having the privilege of immunity to being impeached, questioned or interfered with by any Court of Law. In this regard it is pertinent to quote the submissions of Mr. S. Nadesan Q.C. on 25th September 1984 before the Select Committee appointed in respect of the removal of the Hon. N.D.M.Samarakoon Q.C. from the Office of Chief Justice (Vide pages 199 and 200 of the said Report) of which Select Committee I was privileged to be a Member.
Mr. Sarath Muttettuwegama, M.P.: The appointment of a Select Committee does not depend on a resolution?
Mr. Nadesan Q.C.: Yes. Once you send that resolution for the removal on the ground of misbehaviour, then the Speaker automatically functions.
(Hon. Lalith Athulathmudali) Your point is that he has no other option. Neither has Parliament the option. As the resolution is tabled it has to go to the Select Committee. He cannot refuse.
Mr. Nadesan Q.C.: The Speaker takes over, he cannot refuse. Then immediately he shall appoint a Select Committee of Parliament.
It is called a Select Committee, because it is selected - that is alright - consisting of 7 members to investigate and report to Parliament on allegations of misbehaviour or incapacity set out in such resolution. He has done that....
The appointment of a Select Committee of Parliament is done by the Speaker under the Standing Orders of Parliament.
Standing Orders themselves are made by Parliament under Article 74 which appears in Chapter 11. This Chapter prescribes the procedure and the powers of the Legislature. The Speaker is therefore not performing executive or administrative functions within the meaning of article 17 and Article 126. He acts as an officer of Parliament performing the functions of Parliament. Paragraph 36 of the Petition alleges that the appointment of the Select Committee by the Speaker constitutes executive or administrative action. This clearly is an erroneous interpretation acting upon which the Supreme Court has assumed jurisdiction to make the Stay Order. If permitted this may well lead to a flood of cases of this type where the Speaker would have to face potential Court cases questioning his acts and Orders on the erroneous premise that he is performing executive and administrative functions.
The Supreme Court has in several decisions laid down the principle that the Court has no jurisdiction to entertain an Application under Article 126 if the alleged infringement is not by executive or administrative action.
However, Members of Parliament may give their mind to the need to introduce fresh legislation or amend the existing Standing Orders regarding Motions of Impeachment against Judges of Supreme Courts. I believe such provision has already been included in the Draft Constitution tabled in the House in August 2000.
The Petitioners have not sought to explain or justify such clear contraventions of the "general and public law" of Sri Lanka which is expressly recognized by Article 67 of the Constitution itself. Nor has the Court stated the legal basis for the issue of the interim orders in the face of this prohibition and of which it was obliged to take judicial notice.
Finally, if I may summarize the decisions which I have reached on the several issues that have arisen:
1. The Supreme Court had no jurisdiction to issue the interim orders restraining the Speaker of Parliament in respect of the steps he is empowered to take under Standing Order 78A.
2. The aforesaid interim orders dated 6th June 2001 are not binding on the Speaker of Parliament.
3. There is no legal obligations to comply with the said orders.
I will now proceed to instruct the Secretary General of Parliament to place the Motion in the Order Paper.
In conclusion, might I be permitted on a personal note to say that I am, indeed, proud to belong to a family that has had the unparalalled and unique privilege of continuously serving the Legislature of this Nation, since, 1932, for nearly 70 years.
Therefore, I deem it a singular honour that fate has bestowed upon me as Speaker of this august Assembly, by affording me the historic opportunity of reaffirming the principles underlining the supremacy of Parliament. Since, I commenced my Parliamentary career in 1977, I have often quoted in this House, the words of the Bard from Stratford-Upon-Avon, William Shakespeare. In his monumental play 'HAMLET', he spoke thus: -
"This above all: to thine own self be true
And it must follow as the night the day
Thou canst not then be false to any man"
Hon. Members of Parliament, throughout my political and Parliamentary career, I have had to face periods of difficulty, great turmoil and greater perplexity, which required me to make important decisions and painful choices .
I have done so unhesitatingly, by doing the correct thing and have acted according to the dictates of my conscience.
I thank every one of my Honourable friends from both sides of the House, for their attention and patience.
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