Ruling by the Hon. Speaker in relation to the determination of the Supreme Court on the 'Divineguma' Bill

Hon. Members, an occasion has arisen where I am compelled to make a statement that is of importance in discharging my duties, responsibilities, and obligations as Speaker and in safeguarding the rights and privileges conferred on Parliament and its members by the Constitution and in the several statutes and Standing Orders relating to Parliamentary affairs. The trust and confidence you have reposed in me requires me to act as the guardian of the dignity and honour of Parliament against any possible intrusions and threats from any quarter outside this House. These rights and duties are sacred for the due performance of the functions and duties of this august Assembly and more particularly of the varied procedures that have to be observed by the Speaker in giving effect to the Constitution that my predecessors have sheltered and protected.

Those rights and privileges that have been defended and sustained to safeguard the Supremacy of Parliament by my honourable predecessors cannot be relinquished or abandoned by Your Speaker who has to maintain the respect and esteem of this House and to enable me to hand the mantle to my successor – of a title and office which is not to be devalued or debased.

The determination of the Supreme Court of a Bill titled ‘Divineguma’ contains a disturbing feature where functions attributed to the Speaker by the Constitution have been assigned to the Secretary General of Parliament. This, in my understanding, is inconsistent with the provisions of Article 121 (1) of the Constitution relating to the office of the Speaker and also amounts to an amendment of the relevant provisions of the Constitution.

At the time the determination was read in Parliament, I became conscious of a predicament that Parliament may be faced with, by the determination of the Supreme Court. Your Speaker felt it was prudent before making a decision, to refer the matter to the attention of the Party Leaders and seek their guidance because of their rich experience in parliamentary affairs. I am grateful to the Party Leaders for maintaining the high traditions and customs of our Parliament and in offering me their fullest assistance.

The Minutes recorded at the Party Leaders Meeting on 19th September 2012 reads as follows:

(I quote)
“The Hon Speaker informed the Committee that, in terms of the provisions of the Article 121(1) of the Constitution, when a petition is filed against a Bill in the Supreme Court, a copy thereof shall at the same time be delivered to the Speaker.

However, such petition filed against the Bill entitled ‘Divineguma’, was not delivered to the Speaker in the manner prescribed in the said Constitutional provisions. The Hon Speaker invited the members of the Committee to share their views in this regard.

After long deliberations, the Committee was of the view that Parliamentary supremacy and the authority of the Speaker as envisaged in the Constitution should be recognized and given effect to by all other arms of authority.

The Committee requested the Hon Speaker to make a statement to this effect on the floor of the House with a view to safeguarding the supremacy, authority and dignity of Parliament and its Members.”
(unquote)

This strengthened the hand of your Speaker to resolve the issue in a mature, responsible and dignified manner so as not to strain the cordiality that existed over the years among the Executive, Legislature and the Judiciary, on which solid foundation the sovereignty of the People is preserved. The right of the people to enjoy sovereignty is, in effect, granting power to the people, which is an inalienable right under Article 3 of the Constitution and reigns supreme in our Constitution.

The Constitution cannot function effectively if there is any encroachment or abridgement of the rights and privileges of Parliament. The makers of our Constitution have rightfully secured and shielded without any reservation, in their wisdom, the concept of Supremacy of Parliament, which this House must maintain undisturbed and untrammelled. If there are conflicts and confusion within or between the tripod of power, it is the People - the repository of sovereign power as whose representatives we have assembled- that will suffer the consequences. We are obliged to protect the people from such a situation and at the same time, maintain the spirit of goodwill between the Legislature and the Judiciary in the interests of the People and the Constitution.

In the circumstances, fortified by the authority granted to me by the Constitution and the Party Leaders who are Hon Members, Your Speaker thought it fit to seek advice of learned counsel on the elucidation of questions of law and I embarked on my own explorations and consulted eminent persons knowledgeable in parliamentary practices. It is necessary to mention the invaluable service rendered by your Deputy Speaker doing the spadework in researching the necessary material and assisting in making the ruling, which service this House must acknowledge with gratitude.

As a parliamentarian of long years, I relied on my own experience and the previous rulings made by my predecessors, and I was especially inspired by the brilliant exposition of parliamentary practices made by Hon Speaker the late Hon. Anura Bandaranaike - a ruling striking down a judgment where three judges of the Supreme Court attempted to issue a stay order restraining the Speaker from appointing a Select Committee to inquire into the conduct of a former Chief Justice consequent to a motion of impeachment against him forwarded to the Speaker in terms of the Constitution and the Standing Orders, and courageously upheld the supremacy of Parliament against encroachment by the Supreme Court.

On this occasion, there were three petitions filed in the Supreme Court challenging a Bill titled ‘Divineguma’. One of the petitioners addressed a petition to the Supreme Court and delivered a copy to the Secretary General of Parliament on 17.08. 2012, whereas the Constitution has declared that it has to be delivered to the Speaker. The Supreme Court in the present determination decided that such a delivery to the Secretary General of Parliament is in order, which is the matter in issue. [There were two other petitions with regard to the same Bill that were correctly delivered to the Speaker, though one was outside the prescribed time period.] In respect of the above matter the determination of the Supreme Court was as follows:

(I quote)
“Whilst, that process of sending the petition filed in the Supreme Court within the specified period to the Hon Speaker is mandatory, it cannot be said that the documents being sent to the Secretary-General of Parliament within the stipulated time frame is not in compliance with Articles 121 (1) of the Constitution” (unquote)

The Supreme Court, therefore, entertained the said petition though delivered to the Secretary General of Parliament.

To understand the impact of this determination, it is necessary to engage in an examination of Articles 121 (1) (2) and (3) of the Constitution which reads -

(I quote)
Article 121 (1) - The jurisdiction of the Supreme Court to ordinarily determine any such question as aforesaid may be invoked by the President by a written reference addressed to the Chief Justice or by any citizen by a petition in writing addressed to the Supreme Court. Such reference shall be made or such petition shall be filed, within one week of the Bill being placed on the Order Paper of the Parliament and a copy thereof shall at the same time be delivered to the Speaker. In this paragraph “citizen” includes a body, whether incorporated or unincorporated, if not less than three-fourths of the members of such body are citizens.

Article 121 (2) - Where the jurisdiction of the Supreme Court has been so invoked no proceedings shall be had in Parliament in relation to such Bill until the determination of the Supreme Court has been made or the expiration of a period of three weeks from the date of such reference or petition, whichever occurs first.

Article 121 (3) - The Supreme Court shall make and communicate its determination to the President and to the Speaker within three weeks of making of the reference or the filing of the petition as the case may be. (unquote)

In the determination of the Supreme Court, the aforesaid Article has been construed to mean, instead of delivering a copy to the Speaker as envisaged in the Constitution, it would be sufficient to send it to the Secretary General of Parliament thereby substituting the “Secretary General of Parliament” for the “Speaker”. If that is permitted to stand either the President on making a reference or a citizen submitting a petition to the Supreme Court on a Bill placed in the order paper of Parliament under Article 121(1) of the Constitution can do so without giving notice to the Speaker by sending a copy of the petition to the Speaker - a mandatory requirement under the Constitution. The Supreme Court has determined that delivering the petition to the Speaker is mandatory, but the delivery is satisfied if the document is instead sent to the Secretary General of Parliament that carries no guarantee of reaching the Speaker at the same time as the petition addressed to the Supreme Court. It takes away the element of certainty guaranteed in the Constitution by delivering it to the designated authority.

An attempt to keep alive a suspect petition leads to a finding that creates a dichotomy which has dire consequences on parliamentary procedure, as Article 121 (2) requires
(I quote) “Where the jurisdiction of the Supreme Court has been invoked no proceedings shall be had in Parliament in relation to such Bill until the determination of the Supreme Court has been made or the expiration of a period of three weeks from the date of such reference or petition, whichever occurs first.” (Unquote)

The staying of parliamentary proceedings which is contemplated by the provision of the said Article is a matter within the province of the Speaker and a matter on which the Secretary General of Parliament has no authority to act, being devoid of power required to implement Article 121. Furthermore, Article 121 (3) of the Constitution requires the Supreme Court to communicate the determination to the Speaker. It is thereafter, that proceedings recommence on the temporarily suspended Bill or other necessary steps are attended to, as determined by the Supreme Court. It has been the practice for the Speaker to read the determination to the Hon Members while the House is in session to keep the members apprised as to the steps that need be taken thereupon on the said Bill. These are not matters within the purview of the Secretary General of Parliament. Therefore, the Speaker has a pivotal role in giving effect to Article 121 and the makers of the Constitution with their inherent insights into parliamentary procedures and practices deemed imperative the delivery of a copy of the reference or petition to the Supreme Court. The effect of this is to put the Speaker on notice to take the steps envisaged in Article 121 (2) and (3).

In the year 1991 in a determination made by the Supreme Court in the matter of the Sri Lanka Telecommunications Bill (Justices G.R.T.D. Bandaranayaike, K.M.M.B. Kulatunga and S.W. B. Wadugodapitiya SCD 5/91, 6/91 and 7/91- conveyed to Parliament on 23.04.1991) foresaw that Article 121 of the Constitution had elements which “… could in our opinion lead to mischief and even a possible confrontation between the Parliament and Court which needless to say must be avoided. That could be the possible result of a non-compliance with the scheme of the provision.” This determination was indeed considered by the Supreme Court in the present determination but the Supreme Court sadly failed to forestall events that “could be the possible result of a non-compliance with the scheme of the provisions” that were foreseen by the Supreme Court 21 years previously.

Your Speaker desires to avoid any possible disruption and to adhere to the law laid down by the Supreme Court in following the Constitution in its strict letter to avoid any possible mischance. It enables parliamentary proceedings to be effective and meaningful which is the Speaker’s responsibility and the route intended to be followed in making this ruling. Ultimately, as the Peoples’ Representatives, the Legislature is bound to act in the interest of the People and safeguard especially the interest of the citizen who challenges a Bill in the Supreme Court and to permit him to enjoy the rights provided by the Constitution in making certain that parliamentary proceedings are halted while the judiciary deliberates.

The Supreme Court discussed extensively Article 121 of the Constitution in the matter of the Sri Lanka Telecommunications Bill:

(I quote)
“It is our view that all the provisions in this Article as to the manner in which the jurisdiction of the court could be invoked are mandatory.” (Unquote)

A sequence of events of a somewhat similar - but not exact nature - has arisen again that need be sorted out amicably eliminating any possible injustice to citizens. In so doing, I am following the decision of the Sri Lanka Telecommunications Bill, which decided that Article 121 of the Constitution is of a mandatory nature, which has also been followed in the present determination, to arrive at common ground. To quote again from the decision of the Supreme Court in 1991:

(I quote)
“Once the opinion of the Supreme Court is known, Parliament is more advantageously placed in proceeding with the process of legislation. This purpose of the Article cannot be achieved unless the provisions designed to secure such result are regarded as mandatory. The Article also provides for the suspension of the ordinary legislative powers of Parliament for a period of three weeks when a Bill is referred to the Supreme Court for its adjudication-Article 121 (2). The aims of the Article will be defeated unless its scope is wide enough to prevent Parliament from debating or proceeding with the Bill whilst the Supreme Court is engaged deliberating its constitutionality.” (Unquote)

When the Supreme Court has in both decisions determined that Article 121 is mandatory –it does not mean it is partly mandatory and partly directory – this means the Secretary General of Parliament can be substituted for the Speaker of the Parliament. More so, the Constitution does not provide that the copy of the reference of petition should be sent to “Parliament” but specifically to the “Speaker” to enable the legislative process to fall in line with the provisions of Article 121 (2). If the word Parliament was used in Article 121 (1) there is some justification in submitting it to the Secretary General of Parliament. But where it is not, as in the present instance, Parliament has to treat it as an unacceptable modification of the Constitution, which the Parliament cannot accept to its own detriment.

Proceeding from both determinations that hold Article 121 of the Constitution to be mandatory, it is obvious that the delivery at the same time of the reference or petition to the Speaker is a prerequisite to enable the provisions of Article 121 (2) and (3) to be given effect and the proceedings in Parliament on the Bill is suspended and/or reopened. If the Speaker is eliminated from the role assigned to his office in the Constitution and kept unawares, parliamentary procedures will be in peril and jeopardy. The duties of the Secretary General are laid down in the Standing Orders of Parliament in Section 9, but there is no such power by any stretch of interpretation that confers any such authority or power on the Secretary General of Parliament equivalent to that of the Speaker. It is bewildering that powers conferred by the Constitution for good, valid and obvious reasons on

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Ruling by the Hon. Speaker in relation to the determination of the Supreme Court on the 'Divineguma' Bill

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