Kishali Pinto Jayawardena
Scarcely having sufficient time to properly settle into his Chair as Sri Lanka’s Parliament opened for business this week, the Speaker faced down two attempts to trespass on the ‘legislative power of the People,’ throwing up intriguing questions in regard to the country’s parliamentary process, or what is left of this.
Freedoms of Speech in the House
The first, disconcertingly enough, came from the infant parliamentary opposition Samagi Jana Balawegaya (SJB). Its members were enraged over the maiden speech by new entrant to the House, CV Wigneswaran, former judge and now turned politician in a metamorphosis which continues to be somewhat disconcerting to lawyers who remember him on the Bench.
In a bid to rival nationalistic screeching of Government MPs, SJB parliamentarians demanded that references made by parliamentarian Wigneswaran to a historical Tamil homeland in the North and East be expunged from the Hansard.
In refusing to concede to that cry, Speaker Mahinda Yapa Abeywardene remarked that it was his duty to protect the freedom of speech on the floor of the House. He informed the rumbustious MPs bellowing in his ear that every MP has the right to express views and that fellow MPs also have the right to express contrary views.
In this Parliament, represented by extreme nationalists from the North to the South and in some instances, feeding off the rhetoric of each other, we will repeatedly witness these raucous outcries.
Secondly and far more significant is the Speaker’s warning that former Chair of the Committee on Public Enterprises (COPE), ex-MP Sunil Handunetti cannot be summoned by a Commission of Inquiry (COI) to testify about evidence/material gathered by COPE, without first obtaining permission from Parliament.
One would have thought that this principle was self-evident. But the fracas emphasizes concerns being raised by many, inclusive of the Attorney General, regarding interventions by the Gotabhaya Rajapaksa appointed COIS into the legal, prosecutorial and (now it appears), the parliamentary process.
Unseemly controversies are the norm
This problem is not limited to a single complainant. Indeed, complaints have become so pervasive that one becomes quite nostalgic about past COIs that we griped about as having no teeth, did not bark or bite and were generally ineffectual. Now its entirely different and not quite happily so. Unseemly controversies plague sittings of Commissions of Inquiry, from verbal onslaughts between retired senior state law officers opposing each other to pleadings by parties that they have been denied due process of law. At the outset however, a necessary correction is called for.
Frequent references in the media to ‘Presidential Commissions of Inquiry’ are factually incorrect. Amidst a plethora of commissions and commissions, (let alone omissions by these commissions), it must be clarified that there are essentially four types of commissions with differing legal rules and binding procedures. These must not be confused or put into one category as some commentators do, by saying that their decisions are not subject to legal challenge. In fact, it defies comprehension as to why such arguments are made in the first place, unless it has to do with the purpose of political propaganda. First, there are the constitutional commissions on inter alia, the police, the elections, the public service and so on. The members of these bodies are recommended for presidential appointment by the Constitutional Council (CC) and their decisions can be appealed from to the superior courts on a writ remedy or a fundamental rights violation.
From 2001, in which year these commissions came into being under the 17th Amendment to the present day, Sri Lanka’s case law reports are literally stacked with instances where the Courts have either upheld or dismissed those challenges. This remained the case under the 18th Amendment, when the commissions still functioned but as adjuncts of the Rajapaksa (the First) Presidency. Thus, the loudly trumpeted grievance of the ‘Pohottuwa’ (Sri Lanka Podujana Party), that these commissions under the 19th Amendment are a law unto themselves, is pure balderdash.
Fact finding COIs and limits of their powers
Secondly, there are statutory independent commissions with safeguards to ensure independence, some with additional checks requiring presidential appointment of its members on recommendation by the CC and having security of tenure. Decisions of these commissions are also challengeable either by way of statutory appeal or by a general writ remedy. Both these categories are distinguished from the third and fourth categories, known as ‘ad hoc’ Commissions of Inquiry, set up variously under the Special Presidential Commissions of Inquiry Law, No 7 of 1978 and the Commissions of Inquiry Act, No 17 of 1948. In fact, these two types of commissions are entirely different from one another.
The Special Presidential Commission of Inquiry with enormous powers including recommending the deprivation of civic rights, claim the nomenclature of “Presidential Commissions.” Its far gentler cousin, the Commission of Inquiry (established under the 1948 Act) are the bodies that currently sit in various avatars such as to probe political victimisation or other allegedly fraudulent activities. Referring to these as Presidential Commissions confuses these with the Special Presidential Commissions. These Commissions are, as the Attorney General has repeatedly pointed out in objections lodged to prevent his officers being summoned to testify on ongoing prosecutions, fact finding bodies.
They cannot interfere into legal, prosecutorial or judicial processes. In any event and in all cases, Commissions cannot call for parliamentarians to testify on material gathered during inquiry processes without leave first being obtained from the House, as the Speaker has seen fit to rule. There is a further aspect to be considered. Decisions of ad hoc commissions of inquiry, in accordance with the cursus curiae of the superior Courts, are not automatically challengeable in judicial review. Reputations may be harmed, names may be tossed around but it is only if further steps are taken on recommendations of a COI, which, in the language of administrative law principles, ‘affect rights’ that a legal challenge becomes possible.
Need to protect due process
There is, of course, a well known conflict of judicial opinion on this matter. A Divisional Bench of the Court of Appeal (Mendis Fowzie & Others v Goonawardene, 1978-79) held that reputational harm caused by a Commission of Inquiry was reviewable. Yet the Supreme Court disagreed, (Silva & Others v Sidique & Others, 1978-79-80) concluding that a writ of certiorari will lie only where ‘some other authority or body acts on a report of a COI.’This ‘further step’ would obviously include instances where disciplinary action is taken against a person.
But in the meantime, persons who are the subject of ad hoc Commission inquiries have limited means of remedying harm caused to their reputations, even once the Commission report is issued. This is precisely why Commissions must meticulously protect rights of those summoned to appear. As has often been said by the Court, natural justice is fairness in action.
In the wake of public controversies and carefully manufactured publicity attendant on sittings of COIs, the constitutional right of due process demand that minimum standards of a fair hearing must be met.
If not, the damage done thereby goes far beyond a transient Head of State, a Government or particular political agendas. We have seen that happening far too often.
This must stop.