GOMES V. M. H. MOHAMED, SPEAKER OF PARLIAMENT

031-SLLR-SLLR-1991-V2-GOMES-V.-M.-H.-MOHAMED-SPEAKER-OF-PARLIAMENT.pdf


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Sri Lanka Law Reports
[1991) 2 Sri L.R.
GOMES
V.
M. H. MOHAMED, SPEAKER OF PARLIAMENT
COURT OF APPEAL.
WIJEYARATNF., J.. AND FDUSSIIRTYA, .1C. A. APPLICATION NO. I000/«l.NOVEMBER 27. 1991.
Mandamus and Certiorari – i'onstitutional duty under Article .18 (2)(c) ofthe Constitution – Parliament (Powers and Privileges) Act. So. 21 of 195.1.
The entertainment of the resolution under Article 38(2X») of the Consti-tution by the respondent as Speaker and the fact that the respondent subse-quently "ceased to entertain" the resolution and any orders made thereonare part of the proceedings of Parliament and cannot be questioned in anyCourt of Law whether by way of writ or otherwise.
In its narrow sense the expression “proceedings in Parliament” is used todenote the lormal transaction ot business in the House or in committees. Inits wider sense the expression includes matters connected with or ancillary tothe formal transaction of business.
Cases referred to:
A. G. v. Samarakkody 57 NI.R 419. 421
Brad laugh v. Gossett 1884 – I2QBL> 273
British Railways Board v. Pick in (1974) 2 W.L.R. 208
APPLICATION for writs of Mandamus and Certiorari in respect oforders made by the speaker.
P. Dharmadasa Gomes in person.
Cur. adv. writ.
CA Gomes v. M, H. Afohamed, Speaker of Parliament (Wtjeyaratne, J.)409
Dccemtffcr 04, 1991.
WIJEYARATNE, J.
The petitioner has filed this application on 1.1.II. 199!against the respondent (the Speaker of the Parliament) statingthat a member of Parliament has given notice to the respond-ent on 28.08.1991* of a resolution under Article .18(2)(a) of theConstitution setting out certain allegations against His Excel-lency the President and that the respondent has entertained thesame and informed His Excellency accordingly.
The petitioner avers that His Excellency has obtained .the
advice of the Attorney-General. This advice was sent to thePresidential Secretariat on 12.09,1991 and thereafter conveyedto the respondent. A copy of the advice of the Attorney-General is annexed to this application, marked as P2.
Thereafter it is averred that the respondent had sent a let-ter to His Excellency stating that the resolution had been dulyaccepted.
• •
The petitioner alleges that the respondent did not carry outthe statutory functions that he was bound to perform, namely,to place the resolution before the Parliament but, instead ofperforming his constitutional and statutory functions underArticle 38(2)(c), on 08.10.91 had informed His Excellency thathe “ceased to entertain” the resolution, which he had acceptedon 28.08.91.
The petitioner has filed this application to compel therespondent to perform his constitutional duty and to lay thisresolution before the Parliament under Article 38(2)(c).
Therefore the petitioner prays for a mandate in the natureof a Writ of Mandamus “commanding” the respondent toplace the said resolution before the Parliament and to quashby a.Writ of Certiorari the decision of the respondent made on08.10.91 that he “ceased to have entertained” the said resolu-tion.
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The petitioner also moves to have this case referred to theSupreme Court 'under Article 125 of the Constitution if thiscourt is of the view that a question of interpreting the Consti-tution is involved.
When appearing in support the petitioner submitted thathis rights as a citizen and voter have been violated by therespondent.
Section 67 of the Constitution of 1978 lavs down asfollows:—
!
•“The privileges, immunities and powers of Parliament andof its Members may be determined and regulated by Par-liament by law, and until so determined and regulated,the provisions of the Parliament (Powers and Privileges!Act, shall, mutatis mutandis, apply”.
The Parliament (Powers and Privileges) Act, No. 21 of1953, as amended by Law No. 5 of 1978 and Acts Nos. 17 of1980, 25 of 1984 and 37 of 1987 is applicable in this matter.
• •
In passing it should be mentioned that this enactment,along with certain other enactments which were in force on31.12.80, has not been reproduced in the 1980 Revised Edition(Unofficial) of the Legislative Enactments for the reason (asstated in the Preface thereto) “that such enactments were to berepealed or likely to lapse in the near future”. So far this Acthas not been repealed or replaced.
However this Act (without the above amendments) appearsas Chapter 383 in the Revised Edition of the LegislativeEnactments of 1956.
Provision has been made by section 7 of our Act for ourParliament to hold, enjoy and exercise the same privileges,immunities and powers for the time being held, enjoyed andexercised by the Commons House of Parliament of the UnitedKingdom and by the members thereof.
CA
Gomes v. M. H. Mohamed, Speaker, of Parliament (Wtfeyaratne, J.)
411
Thc*word “member" has been defined in section 2 of ourAct to include the “Speaker”.
These privileges arc necessary for Parliament to maintainits independence of action and the dignity of its position. Thebasis of the claim is that it is an essential part of the constitu-tion and wording of Parliament that the members who com-prise it should be able to attend to their duties without inter-ruption or molestation.
Section 9 of the said Act reads as follows:—
“All privileges, immunities and powers of the House shallbe part of the general and public law of Ceylon, and itshall not be necessary to plead the same, but the sameshall in all courts in Ceylon be judicially noticed”
Hence it is the duty of this court to take judicial notice ofthe privileges, immunities and powers of Parliament.
Section 3 of the said Act reads as follows:—
“There shall be freedom of speech, debate and proceedingsin the House and such freedom of speech, debate or proceed-ings shall not be liable to be impeached or questioned in anycourt or place out of the House”.
This section follows the English law and is an adaptationof Article 9 of the Bill of Rights.
(See the observations of H N. G. Fernando, J., in TheAttorney – GeneraI v. B. P. Samarakkody and another)
Erskine May’s Treatise on The Law, Privileges, Proceedingsand Usage of Parliament (20th Edn. 1983) at page 88 state$ asfollows:—
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“Right to exclusive cognizance of proceedings in Parliament
Article 9 of the Bill of Rights, confirming the long-standingclaims of each House of Parliament to exclude all outsideinterference within its own walls – claims which had only beenseriously challenged’in the case of the House of Commons -lays down that ‘freedom of speech and debate or proceedingsin Parliament ought not to be impeached or questioned in anycourt or place outside Parliament.'1'
In the case of Bradlaugh v. Gossettt (2) it wds recognisedby the courts in England of their incompetence to inquire intointernal proceedings of a House of Parliament. Mr Justice Ste-phen in the said judgment at page 278 states as follows:—
“I think that the House of Commons is not subject to thecontrol of Her Majesty's Court in its administration of thatpart of the Statute law which is related to its own internalproceedings”
Parliament is the guardian of its own privileges and is thesole judge of the lawfulness of its own proceedings.
In the case of British Railways Board v. Pickin (3) arespondent before the House of Lords in 1973 advanced theallegation that in obtaining the enactment of section 18 of theBritish Railways Act 1968 in their favour, the British RailwaysBoard had fraudulently concealed certain matters from Parli-ament and its officers, and had thereby misled Parliament intogranting certain rights to them. The House of Lords foundunanimously that the respondent was not entitled to 'gobehind’ the Act of 1968 to show that section 18 should not beenforced, nor was he entitled to examine proceedings in Parli-ament in order to show that the appellants, by fraudulentlymisleading Parliament, caused him loss.
CA Gomes v. M. H. Mohamed, Speaker of Parliament (Wijeyaratnc, J.)413
Lorfl Morris of Borth-y-Gcst in said case stated asfollows: —
“It must surely be for Parliament to lay down the proce-dures which are to be followed before a Bill can becomean Act. It must be for Parliament to decide whether itsdecreed procedures have in fact been followed. It must befor Parliament to lay down and to construe its standingorders and further to decide whether they have beenobeyed; it must be for Parliament to decide whether inany particular case to dispense with compliance with suchorders, It must be for Parliament to decide whether it issatisfied that an Act should be passed in the form andwith the wording set out in the Act. It must he for Parli-ament to decide what documentary material or testimonyit requires and the extent to which Parliamentary privilegeshould attach. It should be impracticable and undesirablefor the High Court of Justice to embark upon an enquiryconcerning the effect or the effectiveness of the internalprocedures in the High Court of Parliament or an enquirywhether*in any particular case those procedures wereeffectively followed”
These principles are embodied in section 3 of our Actquoted earlier and proceedings in the House shall not be liableto be impeached or questioned in any court.
Then the question arises as to what is meant by “proceed-ings in Parliament”. Halsburv’s Laws of England – Hailsham -(4th Edn. 1980) Vol. 34 at page 598 states as follows in refer-ence to the United Kingdom:—
“An exact and complete definition of ‘proceedings in Par-liament’ has never been given by the courts of law or byeither House. In its narrow sense the expression is used inboth Houses to denote the formal transaction of businessin the House or in committeesIn its wider sense ‘pro-
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ceedings in Parliament’ hss been used to include*mattersconnected with, or ancillary to, the formal transaction ofbusiness”.
Thcrefore-the "entertainment” of this resolution underArticle 38(2)(a) of the Constitution by the respondent asSpeaker and the fact that the respondent subsequently“ceased to entertain" the resolution and any orders madethereon are part of the proceedings of Parliament andcannot be questioned in any court of law whether by wayof writ or otherwise.
Finallv the petitioner made a submission that theConstitution is supreme and that the respondent has toact in terms of the Constitution and carry out his statu-tory duties laid down therein. Undoubtedly these arestatutory duties laid down in the Constitution but never-theless they arc part of the proceedings of Parliament,therefore this court is precluded from examining thesematters.
There is no question involving the interpretation ofthe Constitution that arises in this case. The matter isgoverned by the Parliament (Powers and Privileges) Act,No. 21 of 1953.
For these reasons this court has no jurisdiction to gointo this matter. Therefore I refuse notice on the respond-ent and dismiss the application.
Ednssuriya, J. — I agree.
Application dismissed.