No valid reason for prorogation, rules Speaker
Speaker Joseph Michael Perera delivering his ruling on the prorogation of Parliament, by the President on November 03, 2003, claimed it irrational and against the wishes of the Parliament. He described it as an act to deliberately prevent the due functioning of Parliament.
The following is the full text of the Speaker’s ruling:
"Hon. members, on 11.11.2003 I received a letter signed by the Hon. Prime Minister and a majority of Members of Parliament urging a ruling on the serious situation that has confronted our Parliament by its sudden prorogation on 03. 11. 2003. On 12. 11. 2003 I also received a letter signed by the leader of the Opposition Mahinda Rajapakse, Dinesh Gunawardena, Wimal Weerawansa, Mrs. Ferial Ashraff and Hon. Raja Collure based on the incorrect assumption that I have been requested to summon the Parliament in breach of the order of Her Excellency the President dated 03. 11. 2003 proroguing it. This letter also informs me that should I attempt to summon the Parliament it would be a totally unconstitutional and illegal act and requests me to refrain from doing so. At the outset I wish to categorically state that neither the Hon. Prime Minister nor any member of this House had made any such request to me and I release both the relevant letters to be included in the Hansard.
Under the Constitution of the Democratic Socialist Republic of Sri Lanka sovereignty is vested with the people. This sovereignty is divided and exercised by the executive President, the Parliament and the Judiciary (Art 4). The Parliament is the Supreme Organ of legislative power. In addition under Article 4(c) the Parliament also exercised the judicial power of the people through the courts tribunals established by the Constitution or created and established by law. In regard to matters relating to the privileges, immunities and powers of Parliament and of its members the judicial power of the people may be exercised directly by Parliament. The privileges and immunities of Parliament are contained in the Parliamentary Powers and Privileges act. Under this act the Powers rights and privileges available to each member attach essentially to the House acting collectively.
The Executive power of the people is vested in the President and Article 70 of our Constitution confers on the President the power to summon prorogue and dissolve Parliament. An examination of the scheme of the Constitution shows that Article 70 appears in Chapter XI titled "The Legislative Procedure and Power". This makes it clear that this aspect of the President’s power is not an attribute of his executive power set out in Article VII but rather an administrative function vis-a-vis Parliament.
The exercise of the power to summon, dissolve and prorogue must therefore always be exercised in consultation with Parliament and this function must be accepted at all times as being subordinate to the legislative power of the people conferred on Parliament by Article 4(a).
Were it not so it would lead to a situation where one arm of Government is able to completely suppress another equal but separate arm.
It will also be seen that the Standing of Parliament provide for
a) The Prime Minister to summon Parliament
b) Government business taking precedence
c) Determination of the business of the House by the Leader of the House.
It is this that makes it clear that the scheme of the constitution envisages that the President who is the head of the Cabinet of Ministers to exercise the power of prorogation with the support of the Members of the Cabinet, for this affects Government business. Then a session of Parliament is brought to an end and a new session commences with the support of a majority of the elected representatives of the body which exercises the legislative power of the people.
Therefore Article 70 should be utilised in such a way as not to contravene Articles 3 and 4 of the Constitution. Therefore the power of the President to prorogue is not absolute. When such power is exercised in violation of the sovereignty of the people the primary powers contained in Articles 3 and 4 must prevail.
By convention the Parliament has always been invested with the right to conduct its own proceedings and on one occasion when the Supreme Court attempted to obstruct its proceedings my predecessor, Hon. Anura Bandaranaike in his ruling of 20.06.2001 stated thus;
"I have done my own researches into the problem on the matter which only confirm my long held convictions of the plenary freedom and autonomy of Parliament in the conduct of its own affairs and intuitive resistance against all attempts from an external source to intervene in this exclusive sphere." Further on in his ruling he points out that "The expression ‘proceedings in Parliament’ in section 3 is not statutorily defined, but has been broadly construed in British Parliamentary practice`85 and embraces all forms of business in which the House takes action and includes the whole Parliamentary process".
Hon. Members, I am called upon to make this ruling due to the sudden prorogation of Parliament on 03.11.2003. By this time all leaders of parties, at the committee on Parliamentary Business had decided on the business of the House for the 6th and 7th of November as well as the programme for the annual budget from the 12th of November to the 18th of December. This sudden decision to prorogue was not supported by any valid reason. It has the effect of preventing business being transacted and was purely aimed at paralysing one arm of the Government an equal arm exercising the legislative and judicial sovereignty of the people.
The act of prorogation is accepted to be a prerogative act of the head of state. However by convention it is well established that in no country is the Parliament prorogued against its will. In the United Kingdom, by convention the Queen, even though she has the right to prorogue Parliament always seeks the advice of the Cabinet of Ministers and the Prime Minister in exercising her powers. (Erskine May - 22nd Ed. - Page 10). In Australia the decision to prorogue follows the advice of the government of the day. (A. R. Browning - page 264). In India in proroguing the Parliament the President always acts on the advice of the Prime Minister (Kaul and Shakdher - 5th Ed-page 183). Similarly in New Zealand the Governor General in exercising this power always acts on the advice of the Cabinet (David McGee). In the French Republic which has the Executive Presidential system the dates of the annual Parliamentary session are laid down in the constitution and cannot be varied by the President at will. There is also provision for the Prime Minister or a majority of members to convene an extraordinary session (Articles 28 & 29 of the Constitution of the Republic of France). In the United States neither the President nor the Congress holds the power of prorogation. There the Legislative Reorganisation Act lays down the exact dates on which the Congress shall go into recess. However the President may on extraordinary occasions convene the Congress.
In Sri Lanka too the Parliament has previously never been prorogued without its concurrence. On this occasion the sudden prorogation done when its business was arranged with the concurrence of the Business Committee, without the support of any valid reason and against the wishes of the Parliament can only be described as an act to deliberately prevent the due functioning of Parliament. It is a breach of its collective rights. Our law nowhere states that Parliament is prohibited from meeting during a prorogation and in exceptional circumstances Parliament or a Committee may be required to meet during a prorogation. Suspension of meetings during a prorogation is a convention which is observed in all Parliamentary democracies and is complemented by the fact that in no country is the Parliament prorogued against its will. It is thus to the credit of this Parliament that it did not seek to react by violating conventions.
Hon. Members, this parliament has been elected by the people in whom the sovereign power is vested under article 3 of the Constitution. The Executive President is also elected by the people and the people expect both institutions to function during their respective periods of office. Our experience shows that where the Executive President and the Parliamentary majority are from the same political party there would be no conflict in the exercise of the power of prorogation. However when different parties hold power in these two branches it is essential, if the expectations of the people are to be fulfilled, for both these branches of Government to act in co-operation. If there is no consensus the result will be the crippling of the whole system of Government.
The judicial power of the parliament includes jurisdiction in respect of Privileges and Impeachments. Impeachments in particular do not lapse on a prorogation. In the event of an impeachment, if the President were to continuously exercise her power of prorogation it might well defeat the spirit of the Constitution. Similarly on a matter such as the settlement of the ethnic problem for which this Government received a clear mandate would as a final step need to be brought before the Parliament. In such an event by abusing the power of proroguing it can be used to prevent the due process of Parliament.
Therefore the sudden prorogation of 03.11.2003 is a matter which should be of grave concern to each and every member of this house if he purports to represent his constituents. Preventing the functioning of Parliament can thus be construed as a breach of its collective rights and it is my hope that the prorogation of 03.11.2003 does not set an unhealthy precedent for the future.
If confronted with such abuses of power I rule that the majority of Members should have the right to ask for Parliament to reconvene and for this purpose in order to put the matter beyond controversy, Parliament should as a very urgent measure amend the procedure to enable it to duly exercise this power and ensure that it is effectively enshrined.
In this connection my attention has been drawn to the principles that should be adhered to in activating Article 70(1) of the constitution as contained in the letter of Her Excellency the President dated 16.08.2002 which is included in the Hansard of 20.08.2002. She has recalled that she is fully aware of her legislative duties and obligations to ensure that due care and responsibility is used in that respect without relying on the mere literal meaning in taking a decision. It is with gratitude that on this occasion I recall those principles addressed to the Members of Parliament and the people of Sri Lanka. As mentioned in that letter whatever the steps to be taken should be so taken to ensure the fulfilment of expectations in relation to the peace process and to prevent a harmful and unsatisfactory outcome taking into consideration the fact that the majority enjoys the confidence of the Parliament.
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