( December 2, 2012, Colombo -Hong Kong, Sri Lanka Guardian) 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. - AHRC
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