Bone of contention whether present regime is National Government

SC says parliamentary proceedings cannot be impeached, declines leave to proceed with FR petition

By S. S. Selvanayagam

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 As there is no basis, the Supreme Court yesterday declined to grant leave to proceed with the fundamental rights petition seeking a declaration from the Court that the Government formed after the 17 August General Election is not a National Government within the meaning of Article 46(5) of the Constitution. 

The Bench comprising Chief Justice K. Sripavan, Justices Sisira J. De Abrew and Upali Abeyratne upheld the preliminary objections and held that the freedom of speech, debate and the proceedings in the Parliament cannot be impeached and that the Court could not interfere with the proceedings of the Parliament.  President’s Counsel Romesh de Silva for the Cabinet of Ministers on 9 September had raised the preliminary objection that the Parliament is supreme and that the Supreme Court has no jurisdiction to go into the issue of whether the present Government is a National Government or not.

He submitted that the number of Cabinet Ministers cannot exceed 30 and that all members of the Cabinet of Ministers exceeding 30 have to cease holding office. He contended that the Speaker of the Parliament has already given a ruling on this issue and therefore the Supreme Court has no right to proceed with this fundamental rights application. 

He stated that the Parliament has on 3 September 2015 decided that the present Government is a National Government and that the Cabinet of Ministers can exceed 30. 

He underlined that the Parliament is supreme and the Parliament has decided on this matter and that Prime Minister has raised a question of Privileges of Parliament in the Parliament.  He asserted that the application must be dismissed in limine (at threshold).  The fundamental rights petition seeks a declaration from the Court that the Government formed after 17 August General Election is not a National Government within the meaning of Article 46(5) of the Constitution. Former Parliamentarian Rear Admiral Sarath Weerasekara and Prof. Wimaladharma Abeywickreme in their petition cited the Cabinet of Ministers, Members of Parliament, recognised political parties and others as respondents.  Manohara de Silva PC instructed by Kanishka Vitharana appeared for the Petitioners. Instructed by G. G. Arulpragasam, President’s Counsel K. Kanag Iswaran with Suren Fernando and Niranjan Arulpragasam appeared for Prime Minister Ranil Wickremasinghe and Romesh de Silva PC with Sugath Caldera appeared for the Cabinet of Ministers. Deputy Solicitor General Indika Demuni de Silva appeared for the Attorney General.  The petitioners state the Articles 46(1), (5) and (5) of the Constitution provide that the total number of (a) Ministers of the Cabinet shall not exceed 30; and (b) Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed 40.  They also stated that the Constitution provides the meaning of a National Government - a Government formed by the recognised political party or the independent group which obtains the highest number of seats in Parliament together with the other recognised political parties or the independent groups. 

They assert the Government was formed upon a purported agreement between the UNP and the SLFP (which is not a political party represented in Parliament). 

They contend that all the parties in Parliament did not join to form the Government and the UNP which obtained the highest number of seats in Parliament did not form the Government together with the other recognised political parties or independent groups represented in Parliament.  They claim the approval made by Parliament on 3 September 2015 has no force or effect in law in determining the number of Ministers of the Cabinet, Ministers not members of the Cabinet/State Ministers and Deputy Ministers consequent to the General Election held on 17 August, in as much as the condition precedent to the existence of the National Government is absent. 

They are also seeking a declaration from the Court that the appointment of the Cabinet of Ministers is null and void and has no force or effect in law.

They maintain that continued functioning of the Cabinet of Ministers is inconsistent with the Constitution and continuously violates their fundamental right to equality.