by M.A. Sumanthiran M.P.
Full text of Speech made in Parliament on 10th January 2013 by MA SUMANTHIRAN M.P. during the debate on Impeachment of the Chief Justice
Mr. Deputy Speaker, are you able to control the proceedings?
Thank you sir. Before I commence my speech I need to deal with two preliminaries, both relating to certain customs. The first one is that I must make a disclosure to this House of my involvement in my professional capacity in many matters relating to the matter under discussion and that is the proper thing to do.
Even in this purported Report the first witness has referred to my name as seen in the proceedings of myself having appeared in the Ceylinco Shriram case.
I have appeared for Hon. Vasudeva Nanayakkara, the Hon. Minister, as his counsel in the case in which Sri Lanka Insurance Corporation was privatized and the privatization was reversed consequent to which the Hon. Chief Justice’s husband was appointed as Chairman of that institution. That’s the first disclosure. Secondly, also a matter of custom, I have come to know that in yesteryears when lawyers came to this House as Members of this House they changed their attire. They did not come with a black tie and a black coat. Hon. Dr. Colvin R. De Silva was the prime example of that. He always came into the chamber in a grey or beige or white suit. I have so far striven to uphold that tradition and today I am breaking with that tradition deliberately and I address you in a black coat and black tie because this is a black day.
[Interruption]…if the House continues like this that only demonstrates…now somebody whose office has been raided and arms discovered is trying to interrupt me.
Mr. Deputy Speaker, I was quietly listening to Hon. Minister of External Affairs
[interruption]…not the Deputy Minister for External Affairs, I won’t refer to you…
I’m referring to the Hon. Minister for External Affairs who referred to the Supreme Court ruling. He sought to expound it and surmised it for a long time and he was permitted to do so by the Chair. Yourself was present in the House. Therefore all that he has said and got put on record cannot be allowed to stand. Even though I am much junior to him in the field of law yet I have practised as an Attorney-at-law for twenty one years which he has not been able to do even for a single day. Today I seek to draw from that professional experience in order to lay before this House the true position.
[interruption]…Now the Member who is shouting is giving a demonstration of what he did at the Select Committee – how he abused the Chief Justice. This is what he did there. That also. Your Honourable External Affairs Minister is the one who claimed credit for that appointment. I am not saying it, the Honourable Minister of Fisheries said so in the Parliamentary Select Committee proceedings that it was Prof. Pieris who got her appointed and therefore you objected to him as well. It is there in these proceedings. [interruption]…Mr. Deputy Speaker, I’m asking you most humbly, and I’ll ask you just for one time now to please maintain the decorum of this House. I will not ask you again.
In this Constitution…
[Hon. Deputy Speaker intercepts] Is the Hon. Deputy Speaker saying I am not presenting my speech? I am presenting my speech, but there is disturbance and you as the Chair have the responsibility to maintain discipline in this House. You as the Chair have the responsibility to maintain discipline…that is why I said I will say it once and I will say it no more.
The Hon. Prof. G.L. Pieris looked at the judgment, the interpretation given by the Supreme Court. The Hon. Leader of the House also as he opened the debate referred to that. He attacked the interpretation of the Supreme Court based on one word in Article 107(3). The word ‘or’. Both of them spoke at length about Court having entered the arena of legislation making, because according to both of them, Court has somehow misread; Court has not looked at the word ‘or’. The Court has not done any such thing. If one cares to look at the determination of the Supreme Court…
[interruption]…this is what I’m saying, sit and listen. You also haven’t practiced in any Court…the Supreme Court has very carefully dealt with that issue. [interruption]…No, the Supreme Court did not take one and a half hours, it took much more time. If you don’t know, don’t show your ignorance. It took several days.
Now, the Supreme Court says, the reason why the word ‘or’ is there and not ‘and’ is that with regard to procedural matters in the Select Committee, Parliament has a choice. Parliament can either do it by Standing Orders or it can incorporate it in the Act of Parliament that it can enact. I see Hon. Susil Premajayantha, a man who knows the law, agreeing with me. Thank you. Now, you have to use the word ‘or’. You can’t say ‘and’. You can’t say ‘provide it in the Act and provide it in the Standing Order’. No, you can’t do that. But there are certain matters with regard to standard of proof, burden of proof, mode of proof, that cannot be provided for by Standing Order. There is reason for that. Article 4(c) says that.
[interruption]…Hon. Minister, you did well when you retained me as your Counsel. Now you’re faltering. In many matters you retained me as your Counsel. I must remind you of an incident you will remember. On one occasion when I stood up for you in the Supreme Court, then Chief Justice Sarath Silva asked me, and you know that…’You’re appearing for this Petitioner too many times’. I said ‘So long as he has confidence in me as Counsel, he will continue to retain me.’ And I appeared and I obtained judgment for you.
Article 4(c) says ‘the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law.’ Created and established by law. Only by law. Not written law. Article 170 gives a definition of what a law is and what a written law is. A Standing Order is not law. Any person who can read and understand has to concede to that. Now, that is the reason why in the interpretation of the Supreme Court they have very carefully dealt with that word ‘or’ and I don’t know whether it’s ignorance or convenience, Hon. Ministers, including learned Professor of law are seeking to mislead the country by saying Supreme Court has not read the word ‘or’.
Now, as I said the Chair permitted the Hon. Professor to make his surmise on this judgment. Before I get to that, the Constitution, which is the Supreme law, and all of us agree with that, there is no dissent on that. It says so, that it shall be the Supreme Law. It gives to the three different organs of government, three separate areas of competence. If anyone is violating the Constitution, it is those who transgress into the area that has been given to the other institution. Accusations are being made that the judiciary has gone into the province of legislation making. I have just explained that the judiciary has done no such thing. They have only interpreted the law. The Hon. Professor will know, he cited English authorities, there are several judgments, not only from here but even in India, in England, in every civilized jurisdiction, where the Courts, in interpreting, sometimes supply a word, supply a comma, or a dot or a full stop, and that is common. But in this case, our Supreme Court hasn’t done even that. They have very clearly explained why that word ‘or’ is there and they have gone on to say that it’s a presumption that Parliament will not use words without a reason. And the reason why Parliament used the word ‘law; the reason why Parliament used the word ‘or’; the reason why Parliament used the phrase ‘Standing Orders’ is very clearly laid down in the interpretation of the Supreme Court.
Even if the Supreme Court is wrong, even if the interpretation of the Supreme Court is wrong, that is the interpretation that must stand and so our Speaker said that on the 9th of October. Your Speaker in a ruling given on the 9th of October 2012 very clearly said it is the interpretation of the Supreme Court that must stand. On that occasion also he did not agree, and he asked the Supreme Court to revisit that interpretation and that is the correct course of action.
[interruption]…even if you don’t agree, there is no warrant for the Parliament not to agree. Article 125 of the Constitution…one of the three organs of government, you say is a democratic institution, you go and say that this a democratic country, you go and say that there is an independent judiciary, and today, Hon. Minister Vasudeva Nanayakkara in this House is saying that ‘ we have told the judiciary to go to hell’. We won’t allow you to do that. We won’t allow you to do that. That is a sure way of sending this country down the slope and that is what you are doing. We will not allow you to do that. This country is a country that has democratic institutions. There must be Rule of Law. If there is to be Rule of Law there must be an independent judiciary. We can’t allow you to send the judiciary to hell. Who are you? I am a citizen of this country. I am entitled to say that this country must have every democratic institution. Who are you to say ‘Send the judiciary to hell?’ You are the conspirator against the country’s interests. If you say ‘Send the judiciary to hell’ you are the one conspiring against this country; against this government. That must be what you must be trying to do. Because you announce to the country that you will vote against this. Two days ago you got scared that your Ministry will be taken away from you and therefore you have changed your stance. This is exactly what you did for the Eighteenth amendment also. You said you don’t agree with it in principle, but you will nevertheless vote. Some principled man this is. I feel ashamed that I have ever appeared for you. I’ll tell you one more thing. You were one of my boyhood heroes. You were one of my boyhood heroes of this country. You can ask my family. Each time you came to my chambers, I was proud. I told my children, ‘This is a man I respect. I count it an honour to appear for this man.’ I told my children that. Today I have to take those words back. Because of your shameful conduct. Because of your shameful conduct. All for just a ministry post. For just a ministry post you have turned the tables on all the hallowed principles which you were saying you abided by for all these years. Why did you do this in the last few years of your life? Why did you do this in the last few years of your life?
Article 125 is very clear. Parliament itself when enacting this Constitution was conscious that there might be people like this here. It could have said it’s the sole jurisdiction of the Supreme Court or it could have said it’s the exclusive jurisdiction of the Supreme Court. No, they said it’s the sole AND exclusive jurisdiction, just in case like some people here, they miss that word, they said it twice over. But, there are people here who miss both words. They miss both words. What more can it mean when the Constitution says ‘it is the sole and exclusive jurisdiction’? Does this Parliament have jurisdiction?
There you are. The one man who answered. I will deal with you in a moment. You sit down. This is not like taking a tooth out of somebody’s mouth. This is law. There are legal principles involved in this. This involves law.
Now, if the Constitution says that it is the sole and exclusive jurisdiction of the Supreme Court to interpret the Constitution, what more can there be? And if after Supreme Court has done just that…I’m thankful to Hon. Professor, he tabled it in this House. Thank you so much. There are instructions given at the gate not to let those judgments come in, but you have tabled it. I must thank you most profusely for your act today. That judgment has been tabled and it is on record. You also must be a conspirator then. Against the government; against what the Speaker has ordered; against what the Deputy Speaker has been saying to the media. Nevertheless, that has now been tabled. Parliament must take notice of it. Is this Parliament to say, ‘We can read the Constitution. Article 125 says it is the sole and exclusive jurisdiction of the Supreme Court to interpret the Constitution, but we don’t agree with that. Because we don’t agree with that, we don’t accept that.’
[interruption]…not what we want, but the way the Supreme Court interpreted it…the Speaker said in his ruling, ‘It is the interpretation of the Supreme Court that must stand’…
This is the reason why we are participating in this debate without prejudice to our stand that there is no report before this House. There is no report.
[interruption]…I charged fees and I was paid by Janaka Ratnayake for appearing in that case. For every case that I appear I am entitled to charge as a professional and receive it. If you don’t know that, I don’t blame you if you don’t know that. But there are other lawyers there ask them and learn from them. I am entitled to my fees for the work that I do. Only for Hon. Minister there I did not charge any fees because that was in the public interest.
Since I have a short time to conclude, I want to read from this purported report. The Rule of Natural Justice that all institutions must apply when they have a hearing….
[interruption]…ah the new President’s Counsel. What do you want to know? He’s a true President’s Counsel….that’s not a point of Order. Sit down…
I want to read, sir, before I conclude from this Report. From the Report that was submitted, volume II, page 1482: Mr. Romesh De Silva is addressing the Chairman:
– ‘Mr. Chairman, there must be some decorum in this. I do not like to be shouted at by members of the Select Committee. We have come here to do a job of work. We are making submissions and we must be treated with some kind of decorum. Otherwise, this does not become any kind of process that we can possibly accept. We cannot accept this process. If we have to be shouted at; if we are not being allowed to make submissions. When I’m making submissions to you Mr. Chairman, I’m being interrupted’
Then Mr. Sampanthan, who was a member of the Select Committee has this to say and I want to read it to this House:
– ‘Mr. Chairman if I might intervene. I think that you, as the Chairman of this Select Committee has to safeguard the dignity and decorum of Parliament. Because we are functioning as a Select Committee on behalf of Parliament. The Hon. Chief Justice of the country is before us and we are conducting an investigation in regard to certain matters. These are Counsel appearing on her behalf. I think we should conduct ourselves with a sense of decorum and dignity so as to ensure that the prestige of Parliament is preserved. It will be unfortunate if we cannot do that. Let us not forget that the whole world is watching what is going on here, not only the people in this country. The whole world is watching what is going on here and if this is the way that we are going to conduct our proceedings it will be a very very bad reflection on the institution of Parliament and on these proceedings itself.
Now, when Mr. Romesh De Silva and Mr. Sampanthan said this, none of the other members said ‘What are you talking about? Who pointed fingers? Who is shouting? We didn’t do that. Why are you saying this?’ Nothing of that sort. Nothing of that sort. They’ve agreed that there was shouting. They’ve agreed that there was abuse of the Chief Justice in that chamber there. It is not audi alterem partem to invite a person and to abuse that person. There was abuse in that Select Committee proceedings and your own proceedings bear that out. How can you say, having abused the Chief Justice of this country and chased her out, how can you say that you adhered to principles of natural justice, of audi alterem partem. Your own proceedings betray you. Aren’t you ashamed? The Chairman is here. Aren’t you ashamed? You were addressed and you were asked that question. Several times you are telling them ‘You address me. You address me.’ What does that mean? ‘Don’t listen to the comments of these others, you address me’. You have conceded in print here that there was abuse going on in that place and you come here and you present this report with these proceedings. You did not utter one word. You did not challenge. When they complained you did not say ‘No such thing is happening here’. It is not recorded. That is clear proof as to what you did to a lady; to a Chief Justice of this country; what more will you not do? If that is the kind of justice that you mete out to even the Chief Justice of this country, what chance do others have? What chance do we have? You have been complaining that we are not coming to another Parliamentary Select Committee. If the Chief Justice cannot get justice in this Parliamentary Select Committee with what faith do you invite us to come to the other Parliamentary Select Committee? If this is the justice that you can do to your own appointee; to the Chief Justice of this country, what will you not do to us? Why do you invite us to the Parliamentary Select Committee? If you abuse and chase even the Chief Justice, how do you treat us? The Hon. Minister wanted to talk about the Tamils. After illegally taking 109 young Tamil women, saying they are being recruited to the army without any process, abusing them in those camps and keeping them, this is no surprise.
[interruption]…if anything is to be deleted from the Hansard on the basis that it is untrue, first you must delete this entire report because this entire report is a false report. This report is a ‘no report’ because the Court of Appeal has quashed it.
I want to add that. In proceedings no. CA 411/2013 the Court of Appeal has quashed this already. It was the undertaking of the Sri Lankan Government to the UN Human Rights Council in 2003…in the UN Human Rights Council sessions in 2003 at the UPR Sri Lanka gave an undertaking. After having given an undertaking to the UN Human Rights Council that judicial review is available after the impeachment process of a judge under Article 107(3), this House, I say with utmost necessity, adhered to that because otherwise, again, like you have already put the country at peril, you are putting this country at peril once more because all the undertakings you are giving to the UN Human Rights Council you are willing to willy-nilly move away from. That will put this country at peril, and it is our responsible reminder to you, don’t put our country at peril; don’t violate the Constitution; don’t put the country at peril. If you do that, it will be regarded as a failed state. You are the ones who are doing that, not anybody else. If you give undertakings and you violate them; if you do not listen to the Supreme Court Order; if you violate the Constitution; you are making this country a failed state.
Thank you very much.