The Political Column

10th June 2001

Govt. in legal, political quagmire

By our Political Correspondent
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President Chandrika Kumaratunga is walk ing a tight rope as the PA faces a crisis situation over the UNP sponsored no-confidence motion against the government.

The President looked worried as the UNP's motion gathered momentum with certain parties affiliated to the PA indicating they may join hands with the opposition.

It is said that she has persuaded the Arumugam Thondaman-led Ceylon Workers Congress to pledge its allegiance to the government but she appears to have less success with the SLMC.

This is largely because of the SLMC's thinking that the President is trying to cause division within the party by sidelining Minister and SLMC leader Rauf Hakeem and favouring Minister Ferial Ashraff. She has on at least two occasions locked horns with Mr. Hakeem. It is in this light that the Hakeem faction saw this week's petition by a member of Ms. Ashraff's camp against Mr. Hakeem's move to amend the party constitution.

The case filed by SLMC high command member M. I. M. Mohideen claiming the amendments were illegal, came up before the Colombo District Court on Monday. Rubbing salt to the SLMC wound, he was represented in court by well-known PA lawyer Wijedasa Rajapakse. The District Court refused to issue the interim order sought by Mr. Mohideen but issued notice on the respondents.

Mr. Mohideen in his petition said that in August 2000 the SLMC, under the leadership of former Minister M.H.M. Ashraff, made certain changes to the party constitution, giving effect to the formation of the National Unity Alliance (NUA) by combining the SLMC and the Sri Lanka Progressive Front. Mr. Mohideen alleged the present leadership of the party had relied upon certain other amendments of which he was not aware.

Under these amendments, he said the number of members in the high command had been increased from 10 to 20 while the politburo membership had been increased from 23 to 50. He also alleged that the decision-making power had been passed on to the high command from the politburo in violation of the constitution of the party.

The petitioner had made it a point to refer to a decision of the high command not to support the appointment of the Parliamentary Select Committee to discuss local government electoral reforms which in his opinion was an issue of national importance. 

The mention of this decision — which prompted the President to castigate Minister Hakeem recently — in the petition has made the Hakeem faction to suspect a conspiracy with PA collusion. 

Earlier, in the aftermath of the Mawanella disturbances, the President reprimanded Mr. Hakeem for making irresponsible statements in violation of the principle of collective responsibility. She put Ms. Ashraff in charge of reconstructing a Mawanella mosque destroyed during the disturbances. 

Mr. Hakeem is not unaware of the President's attitude towards him. Both the President and he appear to be engaged in some kind of a cold war. The President at a recent cabinet meeting told Mr. Hakeem that she was aware of the meetings he had with the UNP's Milinda Moragoda, who is a Ranil loyalist, at Hotel Galadari. Mr. Hakeem also did not give in. He admitted that he met UNP members but clarified matters by saying the topic of discussion was about the independent commissions. The President was not impressed. She believes that Hakeem could have a separate agenda in collusion with the UNP to embarrass her.

Political observers say Mr. Hakeem appears to be pondering whether to stick with the government and undergo humiliation or openly side with the opposition and save his dignity. In the event Mr. Hakeem decides to back the UNP, will it be a defection en masse, including the Ferial faction? Given the thaw between the President and Ms. Ashraff, it is an unlikely scenario.

However, Mr. Hakeem, too is playing his cards close to his chest, making it difficult for the President to guess his moves. For instance, he has given an assurance to the government that he would not support the UNP-sponsored motion to impeach Chief Justice Sarath N. Silva.

Thus the cat and mouse game between the two strange political partners continues, though it had been totally eclipsed this week by a constitutional crisis over a Supreme Court interim order, restraining the Speaker from entertaining the impeachment motion against the Chief Justice.

The UNP hurried through the motion signed by 77 UNP and JVP MPs when it heard about the counter move in the form of an interim order. In the rush, some UNP MPs, including party leader Ranil Wickremesinghe could not sign the motion. But some insiders say Mr. Wickremesinghe did not sign the motion because he believed it was against the natural principles of justice for the signatories to sit on a Select Committee that would probe the charges contained in the motion as it would amount to a complainant sitting in judgment. He seems to hold the same view the three lawyers held in their petitions to Supreme Court.

President's Counsel Faiz Musthapa, arguing the case for the first two petitioners — M.M. Zuhair, P.C., and D.P. Mendis — said the Constitution did not empower Parliament in such a way as to make the judiciary subordinate to any other organ and that one organ cannot exercise the power of the other institution.

He said though the executive is answerable to Parliament, Parliament could not directly exercise its powers on the judiciary and the power of the judiciary must be exercised by the judiciary only.

This was a chilling message on the judiciary and here the accuser, prosecutor and the judge were the same, Mr. Musthapa said.

In their petition the three lawyers have extensively quoted from the papers of eminent lawyer, H.L. de Silva P.C. where he has said that judges should be removed only after an inquiry by a competent tribunal.

Mr. de Silva has said: "Having regard to these far-reaching powers it appears to be incongruous for Parliament to determine a procedure under Article 107 (3) by framing Standing Orders that give the power to a select committee of the House to determine whether or not a Judge of the Supreme Court or the Court of Appeal has been guilty of misbehavior or impropriety as a ground for removal from office. The determination of guilt when a judge is charged with misconduct is clearly an exercise of judicial power by Parliament directly which is inconsistent with Article 4 (c) of the Constitution, since it does not fall within the exception therein mentioned.

Mr. de Silva states that in this paper what is contemplated by Article 107 (3) is prescribing a procedure which enables the guilt of a judge to be determined by a body competent to handle such matters.

Article 4 (c) of the Constitution states thus: 

The judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its members, wherein the judicial power of the people may be exercised directly by Parliament according to law.

Article 107 under which Parliamentary standing Orders are drafted states thus:

1. The Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand.

2. Every such judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity:

Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity.

3. Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such judge to appear and to be heard in person or by representative.

Another pertinent question is as to whether the petitioners were entitled to invoke the jurisdiction of the Supreme Court under Article 126 of the Constitution, which deals with fundamental rights since a parliamentary motion is not either an executive act or an administrative act. Some experts also express serious doubts about the Supreme Court's power to restrain the Speaker, thus giving rise to a conflict situation involving the legislature and the judiciary. They say the order should have been on the Secretary General of Parliament, preventing him from entering it in the order paper

If one assumes that Parliament cannot exercise judicial powers in terms of Article 4 (c) then the Standing Orders framed under 107 (3) are ultra vires the Constitution.

Then where does the remedy lie?.

There is another school of thought which believes there is no conflict between Article 107 (3) and Article 4C since article 107 is a special provision which has given special power to Parliament to perform a special task.

But others argue against this view saying Article 74 (1) clearly states that all Standing Orders are subjected to the Constitution. Therefore, Article 107 (3) should be read in relation to Articles 74 (1) and 4 (c), which clearly take away the judicial functions of Parliament.

However, according to the Constitution and Parliamentary Standing Orders, the Speaker is compelled to accept an impeachment motion if it is drafted in keeping with the Constitutional requirements specified in Article 107.

Standing order 78 (A) states thus:

The conduct of the President, or acting President, Members of Parliament, Judges or other persons engaged in the administration of justice shall not be raised except upon a substantive motion; and in any amendment, question to a Minister, or remarks in a debate on a motion dealing with any other subject reference to the conduct of the persons aforesaid shall be out of order.

*78A. [(1) Notwithstanding anything to the contrary in the Standing Orders, where notice of a resolution for the presentation of an address to the President for the removal of a judge from office is given to the Speaker in accordance with Article 107 of the Constitution, the Speaker shall entertain such resolution and place it on the Order Paper of Parliament but such resolution shall not be proceeded with until after the expiry of a period of one month from the date on which the Select Committee appointed under paragraph (2) of this Order has reported to Parliament.

(2) Where a resolution referred to in paragraph (1) of this Order is placed on the Order Paper of Parliament, the Speaker shall appoint a Select Committee of Parliament consisting of not less than seven members to investigate and report to Parliament on the allegations of misbehaviour or incapacity set out in such resolution.

(3) A Select Committee appointed under paragraph (2) of this Order shall transmit to the judge whose alleged misbehaviour or incapacity is the subject of its investigation, a copy of the allegations of misbehaviour or incapacity … and shall require such judge to make a written statement of defence within such period as may be specified by it.

(4) The Select Committee appointed under paragraph (2) of this Order shall have power to send for persons, papers and records and not less than half the number of member of the Select Committee shall form the quorum

(5) The judge whose alleged misbehaviour or incapacity is the subject of the investigation by the Select Committee… shall have the right to appear before it and to be heard by, such committee, in person or by representative and to adduce evidence, oral or documentary, in disproof of the allegations made against him.

(6) At the conclusion of the investigation made by it, the Select Committee… shall within one month from the commencement of the sittings of such Select Committee, report its findings together with the minutes of evidence taken before it to Parliament and may make a special report of any matters which it may think fit to bring to the notice of Parliament;

Provided however, if the Select Committee is unable to report its findings to Parliament within the time limit stipulated herein the Select Committee shall seek permission of Parliament for an extension of a further specified period of time giving reasons thereof, and Parliament may grant such extension of time as it may consider necessary.

Thus there is very little that the Speaker could do in accordance with Standing Order 78 (A).

At the UNP working committee meeting on Wednesday, all members, including party leader Ranil Wickremesinghe and constitutional expert K. N. Choksy, expressed surprise over the judicial directive on the Speaker.

John Amaratunga and Gamini Lokuge raising the issue said that supremacy of Parliament had been challenged by the Supreme Court order. Mr. Choksy read out relevant sections of the Constitution to prove that Parliament supersedes the Judiciary but said he needed time to study the application and the circumstances under which the Supreme Court made the order.

Mr. Lokuge said the order was contrary to the accepted norms and traditions of parliamentary democracies.

A. H. M. Azwer told this column that by this order the judiciary had made an attempt to intimidate Parliament and if this happened the whole statecraft would crumble.

Mr. Amaratunga proposed the launching of countrywide protests and a sit-in protest at Hulftsdorp while Mr. Wickremesinghe described it as an act of indicting a child even before it was born. 

The UNPers are up in arms over the judicial directive and are determined to fight it. They are exerting pressure on the Speaker to give a ruling on the matter. The UNP's next step would depend on Speaker Anura Bandaranaike's decision.

Some UNPers think that Speaker Bandaranaike is vascillating on the matter and has tilted towards the government in the matter. To back their allegation against the Speaker, they point to the assent of the Attorney General who represented him when the petitions were taken up by the Supreme Court on Wednesday.

When UNP MPs were drafting the no-confidence motion in the Opposition Leader's office, Rajitha Senaratne came there and said there was something brewing in the Supreme Court.

Immediately Mr. Lokubandara sprang into action and met party Leader Ranil Wickremesinghe who directed him to immediately hand over the impeachment motion to the Speaker.

Thereafter, UNP Whip Tyronne Fernando along with others went to the Speaker's Chambers to hand over the impeachment motion.

Then the Speaker told the UNP delegation that he received a notice from the Supreme Court about an action initiated and that he had requested the Attorney-General to appear on his behalf.

Mr. Fernando told Mr. Bandaranaike that the Supreme Court had no right to interfere with the affairs of Parliament.

However, the UNP was able to hand over the petition before the Supreme Court order reached the Speaker's Chambers.

At the debate to extend the emergency on Thursday in Parliament,UNP Parliamentarian Ravi Karunanayake said that the Attorney General had appeared for the Speaker without a proxy. 

Mr. Karunanayake's claim sent shock waves, while others wondered as to why the Supreme Court did this in such a hurry.

Meanwhile in the government group meeting on Wednesday plans were afoot to pass a resolution expressing confidence in the Chief Justice.

The draft resolution was read out by Minister G. L. Peiris after Prime Minister Ratnasiri Wickremanayake took the chair.

When Minister Peiris was reading a sentence which specifically stated that in view of the Supreme Court order restraining the Speaker from entertaining the impeachment motion, the Speaker should drop the idea of proceeding with the same, Minister Mahinda Rajapakse rose to his feet and said he had no question about the Chief Justice's integrity.

"The Chief Justice had discharged his duties efficiently and effectively, but we cannot agree with the Supreme Court order restraining the Speaker. Parliamentary supremacy is enshrined in the Constitution and we have to uphold the supremacy of Parliament in relation to other institutions," he said.

Ministers Mahinda Wijesekera and Dinesh Gunawardena endorsed his view.

Minister Gunawardena said that when one spoke about Parliamentary supremacy, there could not be a debate on it. A majority of the members, including Prof. Peiris debated this view. Finally, the group agreed to delete the reference made to the 'Supreme Court Judgment.'

Now there is consensus building up among Opposition and some Government Parliamentarians to take a firm stand to assert the supremacy of parliament. On Thursday evening, Mr. Wickremesinghe, Minister Peiris and Minister Hakeem and parliamentarian Bogollagama along with Speaker Anura Bandaranaike discussed the current political crisis. All of them agreed that Parliamentary supremacy should be upheld at any cost while Speaker Bandaranaike said he would have to consider all aspects of the matter before making a ruling.

Mr. Wickremesinghe then suggested they should avoid any issue challenging the supremacy of Parliament. Minister G.L. Peiris and Parliamentarian Bogollagama also agreed.

Minister Hakeem who always sympathised with the Chief Justice said that he had no problem with the dispensation of justice in the country. He could not agree with the Supreme Court order directly interfering with the affairs of Parliament.

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