I want to come to something that happened in this house on the 24th of November and the 26th of November. On the 24th of November, His Excellency the President came into this house, and he read from some Determinations of the Supreme Court and he asserted that the constitutional council is part of the executive.
Then I spoke that day soon after his speech, but he thought it was best that he does not remain in the house when I spoke: he left. 2 days later in the afternoon he comes to the chamber when I am not here and then he replies me and then he leaves again.
When the opposition leader asked him to stay, he gets up and goes away. Now what did he say? He said, 17th amendment to the constitution has established the constitutional council as part of the executive. That is wrong. He said, that he, Hon. K.N. Choksy at that time, and someone else… Hon. Karu Jayasuriya drafted that law. That was also wrong.
That was at the insistence of the Janatha Vimukthi Peramuna at that time in 2001, that it was brought. He was talking about something else; he was talking about the 18th and the 19th amendment, the aborted 18th and 19th amendment which were never passed in this house. Which during his tenure as the Prime Minister he brought to clip the wings of the executive president at that time.
President’s statement is wrong
He was reading from those determinations and claiming that they were part of the 17th amendment determination. He even said that Hon. Sumanthiran appeared in the case for Centre for Policy Alternatives. I was bemused, because in the year 2001 I was not in the country, I was reading for my Master’s degree elsewhere.
Having looked at the documents, 17th amendment to the constitution, this is what it says: Chief Justice Sarath Silva’s bench, gave the determination. It says, I am reading from the decisions of the Supreme Court in Parliamentary Bills. Its a publication of the Parliament. I am saying all this because I’m reading from authoritative text unlike the President.
The debate of CC since 2017
At page 250 of the decisions between 1990 and 2003, and it says “the constitutional council is being established” and it says in that respect the provisions relating to the establishment to the constitutional council is the core of the 17th amendment. “These provisions are contained as noted above in the new chapter VIIA and that is where the leader of the house was also wrong on that very day, he rose in this house and he said the constitutional council appears under the same chapter as the executive. That is wrong. There was a new chapter created. Executive is chapter VII, a new chapter VIIA was created as a separate organisation. The constitutional council neither a part of the executive nor is it a part of the legislature.
On that day I made an intervention. I did not say it was part of the legislature. I said it was part of the “legislative structure”, and it is what the 17th amendment determination also says, I later found out. It says, “these provisions are contained as noted above in the new chapter VIIA as article 41A to 41H. The council is essentially a body that comes within the aegis of the Parliament with the speaker as its chairman.” That is why it is part of the legislative structure; the speaker is the chairman. That body always has met in Parliament, but that doesn’t make it part of the “legislature” in the strictus sensus of the word.
In the part that His Excellency quotes, which is actually 18th amendment to the constitution determination, which appears at page no 306 of the same volume, there is a statement that this is the executive power. The reason for that is the 18th amendment bill Hon. Minister of Justice, Hon. Wijedasa Rajapaksa also appeared in this case, I also appeared in the matter and I distinctly remember your submissions in the supreme court then, which was primarily about language.
I remember you saying, bad English, how can this be part of our constitution? Something that the president claims that he and Hon. Choksy drafted – hurriedly drafted perhaps. It says the constitutional council established under the 17th amendment is part of the executive and is attributed to the executive power for the reason they were considering the Rules that were to be made part of the constitution for the constitutional council. Constitutional council determinations were thought to be taken away from the jurisdiction of the court and was sought to be made immune from judicial proceedings.
It is in that context that the court said, this is the exercise of executive power by the president; restrictions are placed in his exercise of executive power, and therefore those decisions must be subject to judicial power, it is the exercise of the executive power that is sought to be restricted. So that is what we have been saying, it is a check and balance on the executive power by a body that is separate from the executive, that is separate from the legislature, but it is under the aegis of the Parliament.
Half-baked arguments
Now unfortunately these have to be placed on record. Otherwise, it goes unchallenged. Some people asked me whether these are the important things in the country today? Well, perhaps not, but when the President comes here and says what he wants: half-baked arguments, when nobody here challenges what he says and then he gets ups and walks away, it is important that we put him right. This same determination says the constitutional council, as pointed out earlier, its establishment under the 17th amendment proposes and enables the council to exercise legislative power.
Why? because they can make rules: subsidiary legislation no doubt, and they say that you must have the approval of parliament, but something of a legislative power because they can make subsidiary legislation by means of rules. Now, with regard to the relationship between the executive’s powers which has been curtailed by the constitutional council, that must have some meaning. 17th amendment was brought for good governance.
18th , 19th ,20th,21st Amendments
The determination recognises that. It was sought to be taken away, by the 18th amendment. Brought back by the 19th amendment, taken away again by the 20th amendment, brought back by again with the 21st amendment which was unfair saying that we are bringing this back. But you can’t say that we have brought back the check and balance on the president and then the president behaves as though there is no check and balance: That he is the Be All and end all of all.
That his nomination must be accepted, “I will make only one nomination and that must be accepted.” No that is wrong. That was not the intention of Parliament when it enacted these amendments three times over to curtail the untramelled power of the executive president. And that must be noted because now we have come to a situation of another crisis of governance: this has an implication for economic recovery as well, this has been highlighted by the IMF as well, and the President is the one who is violating the constitution. I am saying it the 2nd time in this house in less than a month: This is intentional violation of the constitution, an offence for which, he can be impeached.
With regard to privilege, I want to again put this on record: Standing Order 83(1) only prohibits the “personal conduct” of various persons including judges from being matters of reference in this house.
Previously the standing order said the “conduct”. That was changed. Previous standing order 78 said the “conduct” cannot be a subject matter for discussion. Now that has been restricted to personal conduct. That’s with good reason. It is this house that gives judges judicial power. In fact judicial power is exercised by Parliament through courts, and to that extent, Parliament has an obligation. It is true, for judiciary to act independently, we must restrain ourselves. We don’t discuss matters sub judice, we don’t discuss judges’ personal conduct. But we certainly can discuss the official conduct of judges and not only here even outside we can subject the decisions of court to scrutiny and criticise it.
That must be there for a vibrant democracy but it must be exercised with caution, so that the independence of the judiciary is not affected, these balances seem to be coming under attack, and to that extent I want to ask the Minister of justice, who is a member of both organs in a sense: he is a member of the inner bar, very senior President’s Counsel and now he is part of the executive occupying the position of Minister of justice, and to ensure that we continue to maintain these balance carefully and not allow one to step on the toes of the other.
( excerpts from the speech by Hon. M.A.Sumanthiran on 02nd December in the parliament).