Parliamentary privilege and judiciary

By Neville Ladduwahetty-May15, 2017,

A Fundamental Rights Petition was filed in the Supreme Court (SC.
FR. Application No. 116/2016) challenging the legitimacy of the
present Government to have a Cabinet of Ministers in excess of
30 and for the number of Ministers who are not members of the
Cabinet of Ministers and Deputy Ministers not to exceed 40 as per
Article 46 (1) of the 19th Amendment of the Constitution.

The grounds for filing the Petition were that the present formation
of the Government did not meet the criteria of a National
Government as set out in Articles 46 (4) and 46 (5) of the 19th
Amendment. These Articles state:

Article 46(4): "Notwithstanding anything contained in paragraph

(1) of this Article, where the recognized political party or
independent group which obtains the highest number of seats in
Parliament forms a National Government, the number of Ministers
in the Cabinet of Ministers, the number of Ministers who are not
Cabinet of Ministers and the number of Deputy Ministers shall be
determined by Parliament".

Article 46(5): For the purpose of paragraph (4), National

Government means, a Government formed by the recognized
political party or the independent group which obtains the highest
number of seats in Parliament together with the other recognized
political PARTIES or the independent GROUPS" (emphasis added).

The above provisions formed the basis for a Resolution that was
tabled in Parliament by Hon. Ranil Wickramasinghe on 3rd
September 2015. The resolution stated:

Sir, I move,

Whereas the United National Party which obtained the highest

number of seats in Parliament has formed a National Government,
Parliament determines in terms of Article 46 (4) of the
Constitution of the Democratic Socialist Republic of Sri Lanka that
the number of Ministers in the Cabinet of Ministers shall not
exceed 48 and the number of Ministers who are not Cabinet
Ministers and the number of Deputy Ministers shall not exceed
45" (Hansard, p. 98).
The above Resolution was debated and approved by Parliament in
the midst of a variety of interpretations being given by Members
of Parliament as to their understanding of what constituted a
National Government. One of issues that was debated hotly was
the interpretation of the phrase "other recognized political parties
or independent groups". While some opined that "other" meant all
the remaining parties together with the party with the largest
majority, other Members of Parliament insisted that if that was
the case the phrase should read "ALL" other remaining parties.

It is evident from the variety of interpretations advanced by

Members of Parliament that there is ambiguity as to what is
meant by "National Government" and as long as such ambiguities
exist there is a need for a constitutionally recognized authority to
clarify such ambiguities. Such an authority is the Supreme Court
under provisions of Article 126. This article states:

"The Supreme Court shall have sole and exclusive jurisdiction to

hear and determine any question relating to the infringement or
imminent infringement by executive or administrative action of
any fundamental rights ". Despite this constitutional
requirement the Supreme Court denied leave for the Petition to
proceed on grounds of Parliamentary privilege since the issue had
already been debated in Parliament.

DETERMINATION OF T

HE SUPREME COURT

The determination of the Court that consisted of the Chief Justice

and two others was:
"Having heard the submissions of all Counsel, we find that the
matters referred to in the amended petition dated 11th May 2016
have been taken up before the Parliament on 3rd September
2015".

"The Court further observes that the said matters have been
debated in Parliament as evidenced by the Parliamentary Hansard
dated 03rd September 2015 marked R1. In terms of Article 67 of
the Constitution read with Section 03 of the Parliament (Powers
and Privileges) Act No. 21 of 1953 as amended, the speech,
debate and proceedings in the House shall not be liable to be
impeached or questioned in any Court or place out of the House".

Continuing the Court cited two Cases to support its

determination..

"In the Case of Hewamanne Vs. DeSilva (1983) 1 SLR 1. at page

144, Ranasinghe, J (as he was then was) having referred to a
passage from Erskine Mays Parliamentary practice 17th Edition
states as follows":

"Section 03 of the Parliamentary (Powers and Privileges) Act 21 of

1953 referred to the freedom "of speech, debate and
proceedings". The term "proceedings" there would seem to cover
spheres of activity not covered by "speech" and "debate". The
term "Proceedings in Parliament" should not be confined to
utterances made on the floor of the House but should be
extended to include all that is said and done within the House by
a Member in the exercise of his essential functions as a Member
of the House".
"Thus, the affairs of the Parliament is (sic) to be regulated by the
House itself and the Court should not interfere in these matters".

Although in the first case cited Ranasinghe J. is reputed to have

referred to Erskine Mays 17th Edition dated 1964 page 62, the
actual quotation cited in the judgment is from Halsbury: Laws of
England (4edt) at paragraph 1486.

The second Case cited was the determination by the Indian

Supreme Court in the case of Sharma Vs. Shree Krishna Sinha AIR
1960 at page 1,186, speaking through Chief Justice Sinha, noted
that: "the validity of the proceedings inside the legislature of a
State cannot be called in question on the allegation that the
procedure laid down by the law had not been strictly followed. No
Court can go into those questions which are within the special
jurisdiction of the legislature itself which has the power to conduct
its own business".

The judgment fails to realize that while Parliament has the

authority to make or repeal laws and in this case determined what
constituted a "National Government", the interpretation of the law
set out in the 19th Amendment to the Constitution should ONLY
be undertaken by the Supreme Court IF Article 126 is to have any
relevance. The very fact that several interpretations were
advanced when the Resolution of 3rd September, 2015 was
debated reflects the degree of ambiguity associated with what is
meant by "National Government"; a fact that should have been
debated and resolved during the passage of the 19th
Amendment. Since this did not happen, the only authority
constitutionally empowered to interpret what is meant by a
"National Government" at this point in time is the Supreme Court.
The reference to Erskine Mays 17th Edition cited in the first case
quoted is dated 1964, and the second case cited was in 1960.
However, since then what constitutes "Parliament privilege" has
undergone significant changes judging from the opinion cited:
"the starting point of statutory interpretation today remains the
literal interpretation of the text, and it is only if there is genuine
ambiguity and uncertainty that extraneous material can be relied
upon as a toolIt also recognizes the reality that however well
Parliament legislates (and we have only ourselves to blame when
we dont) some interpretation may be needed (Attorney Generals
Office UK, The Rt Hon Dominic Grieve QC, 25 October 2012.) .

This is how separation of powers between Parliamentary privilege

and the Judiciary is supposed to work. If such separation of
functions is not recognized, Parliament would be making Laws and
interpreting them as well. The judgment sets in place a dangerous
precedent that could have serious implications because it
recognizes a practice where Parliament could by Resolution
debate and interpret any provisions in the Constitution and arrive
at a legitimate determination by consensus without reference to
any constitutionally recognized authority to ensure conformance
with the Constitution. Such a state of affairs is unacceptable to
the People because it violates their sovereignty.

RECENT DEVELOPMENTS relating to PARLIAMENTARY PRIVILEGE

The material cited below is from the UK Parliaments website

www.parliament uk: Parliamentary Privilege First Report.

36. "A primary function of Parliament is to debate and pass

resolutions freely on subjects of its own choosing. This is a
cornerstone of parliamentary democracy. The performance of this
function is secured by members of each House having the right to
say what they will (freedom of speech) and discuss what they will
(freedom o0f debate). These freedoms, the single most important
parliamentary privilege, are in article 9 of the Bill of Rights
1689".

37. "Over the years this article has been the subject of many legal
decisions. Even so, uncertainty remains on two basic points: what
is covered proceedings in Parliament and what is meant by
impeached or questioned in any place out of Parliament.

42. "From at least 1818 the practice in the House of Commons

was that its debates and proceedings could not be referred to in
court proceedings without the leave of the HouseOne effect of
the 1981 change has been that the use of Hansard in court
proceedings has increased. The oft quoted statement of
Blackstone in his celebrated eighteenth century Commentaries
that whatever matters arise concerning either House of
Parliament, ought to be examined, discussed and adjudged in that
House to which it relates, and not elsewhere is now accepted as
being too wide and sweeping.

Pepper v. Hart 1993

43. "One of the uses the courts now make of parliamentary

proceedings is as an aid when interpreting Acts of Parliament.
This follows from the decision in Pepper v Hart. The case
concerned proper meaning of a taxation provisionTax was
payable by Mr. Hart on the cash equivalent of the benefit, but
the statutory definition of that expression was ambiguous".

44. "The house of Lords in its judicial capacity decided that clear
statements made in Parliament concerning the purpose of
legislation in course of enactment may be used by the court as a
guide to the interpretation of ambiguous statutory provisions. The
Lords held such use of statements did not infringe article 9
because it did not amount to questioning a proceeding in
Parliament. Far from question the independence of Parliament and
its debates, the courts would be giving effect to what was said
and done there".

CONCLUSION

The Fundamental Rights petition (SC. FR. No. 116/2016)

challenging the legitimacy of the current Government to have a
Cabinet of ministers in excess of 30 and Ministers who are not
members of the Cabinet of Ministers and Deputy Ministers in
excess of 40 as per Article 46 (1) (a) and (b) was denied the right
to proceed by the Supreme Court.

The judgment by the Supreme Court on 18 September, 2016, was

based on the grounds that "proceedings in the House shall not be
liable to be impeached or questioned in any Court or place out of
the House". This determination was founded on opinions that
prevailed in Erskine Mays Parliamentary Practice 17th Edition of
1964, referred to in the first case cited above and by the opinion
of the Indian Supreme Court during the second case cited above
in 1960. Since then the notion as to what constitutes
Parliamentary privilege was changed in 1981, and as stated in
paragraph 43 cited above, Parliamentary proceedings could be
used "as an aid when interpreting Acts of Parliament".

Erskine Mays 24th Edition, 2011 referring to Pepper v. Hart (p.

297) states:
"In Pepper v Hart in 1993 the House of Lords set aside the long-
standing rule of the courts which prevented them from admitting
parliamentary debates as an aid to their constructions of statutes.
Their Lordships unanimously agreed that their decision would not
give rise to that impeaching or questioning of parliamentary
proceedings forbidden by the Bill of Rights".

It is crystal clear that the leave to proceed in the Human Rights

petition filed in 2016 was denied because the Court relied on
notions of Parliamentary privilege that were outdated. It is also
crystal clear from the material presented above, that HAD the
Supreme Court been aware of the more recent developments in
relation to Parliamentary Privilege, the leave to proceed with the
petition would have been granted. As stated by the House of
Lords in Pepper v. Hart, the issue is not to question Parliaments
right of free speech in Article 9 of the Bill of Rights. Instead, what
it very correctly questions is for the Supreme Court to recognize
the RIGHT of PARLIAMENT to INTERPRET the very provisions in the
Constitution Parliament itself instituted when it passed into law
the 19th Amendment. That right has to be some other
constitutionally recognized authority, such as the Supreme Court.
If the practice adopted by Parliament wherein it interprets by
itself and for itself what is meant by a "National Government" is
permitted, it would set in place a precedent that would violate the
sovereignty of the People as it relates to separation of "powers of
government", because Parliament would not only be making and
repealing laws but also interpreting them as well.

Therefore, these developments present an opportunity to initiate

a fresh case where "Purposive Approach to Statutory
Interpretation" is adopted by a full bench of the Supreme Court in
order to redress the Fundamental Rights violations that continue
to be perpetrated under the current formations of the Executive
Branch of this Government.
Posted by Thavam