SC reserves order on preliminary objections

Wednesday, 5 October 2016 00:01 -     - {{hitsCtrl.values.hits}}

  • Petitioner claims impugned Parliament proceedings are out of Standing Order


By S. S. Selvanayagam 

The Supreme Court (SC) yesterday reserved its order on the Preliminary Objections raised by the Attorney General on the maintainability of the rights petitions challenging the purported request made by the Prime Minister for Speaker’ Ruling on certain Supreme Court pronouncements in the Singarasa Case.

The Bench comprised Justices Buwenaka Aluvihara, Upaly Abeyrathne and K. T. Chitrasiri. 

Deputy Solicitor General Viraj Dayaratne, appearing for the Attorney General proceedings in the Parliament is covered by the Parliament (Powers and Previleges) Act already in force.

Dayaratne submitted that the sovereignty of the people shall be exercised and enjoyed in the following manner: (a) the legislative power of the people shall be exercised by Parliament, consisting of the elected representatives of the people and the people by referendum; (b) the executive power of the people shall be exercised by the President elected by the people; and (c) the judicial power of the people shall be exercised by the Parliament through courts, or recognized by the President elected by the People.

The Constitution stipulates the privileges, immunities and powers of Parliament said Dayaratne. Parliament members may be determined and regulated by law and until so determined and regulated, the provisions of the Parliament Powers and Privileges Act shall apply, he added.

 Citing the provisions of the Parliamentary Privileges Act, Dayaratne maintained that there shall be freedom of speech, debate and proceedings in Parliament and that these shall not be liable to questioning in anywhere out of Parliament.

Dayaratne also maintained that no Member of Parliament shall be liable to any civil or criminal proceedings, arrest, imprisonment or damages due to anything he may have said in or brought before Parliament. He emphasised that all privileges, immunities and powers of Parliament shall be part of the general and public law of Sri Lanka.  Dayaratne contended that Parliament is the sole legislature and that the Speaker cannot be barred from going into this matter. Court cannot interfere into the privileges of Parliament not can it superviseParliament.

Instructed by G. G. Arulpragasam, Counsel Suren Fernando appearing on behalf of K. Kanag Iswaran for the Prime Minister also raised a preliminary objection on the maintainability of the petition.

 Impugned proceedings in Parliament are out of Standing Order

Petitioner N. Dharshana Weraduwage submitted that the impugned proceedings in Parliament are out of Standing Order of Parliament.

Citing the Standing Order of Parliament, Weraduwage said that the conduct of the President, acting President, Members of Parliament, Judges or other persons engaged in the administration of justice shall not be raised except upon a substantive motion. 

He also submitted on the right to ask question in Parliament that a question must not refer to any matter which is under adjudication by a court of law or to any matter on which a judicial decision is pending and that a question may not ask for an expression of opinion, or for the solution of an abstract legal question or of a hypothetical proposition.

Petitioner N. Dharshana Weraduwage cited Prime Minister Ranil Wickremesinghe and the Attorney General, naming him on the capacity as Attorney General as well as for the President Maithripala Sirisena. 

The SC, in the Singarasa Case, made a pronouncement that, “The Constitution of Sri Lanka and the prevailing legal regime do not provide for release or retrial of a convicted person after his conviction is confirmed by the Highest Appellate Court.”

The SC had ruled that the State does not have the legal authority to execute the decision of the Human Rights Committee to release the convict or grant a retrial. It also noted that the government cannot be expected to act in any manner which is contrary to the Constitution.

The Court also made pronouncements denying the constitutional competence of the President to accede the Optional Protocol of the ICCPR. 

The Petitioner states the Prime Minister had said in Parliament that the Government reconfirms the continued validity and applicability of the Optional Protocol to the ICCPR and is firmly committed to implement its provisions. The Petitioner also states that the Prime Minister had remarked that these SC pronouncements denying constitutional competence of the President to accede the Optional Protocol of the ICCPR are obiter dicta (an incidental or passing remark, opinion, etc) and unnecessary for the determination of Singarasa’s application and do not serve as binding authority on the relevant question. 

The Petitioner complains that in the event of such a ruling, it may trigger a Constitutional crisis. He maintains that such a ruling may be a clear violation of many Articles of the Constitution including Article 120 on Constitutional Jurisdiction of the Supreme Court, Article 125 on Constitutional Jurisdiction in the interpretation of the Constitution and Article 129 on Consultative Jurisdiction as well as Article 3 on the Sovereignty of the People, and Article 4 on the Separation of Powers.  The petitioner contends that if the person responsible for the appointment of the Prime Minister is unable to take prompt and suitable action to prevent a crisis, he shall be in breach of the fundamental rights of the Petitioner. 

K. Kanag Iswaran PC with Suren Fernando and Niranjan Arulpragasam instructed by G.G.Arulpragasam appeared for the Prime Minister. Deputy Solicitor General Nerin Pulle appeared for the Attorney General.