Outrage Upon the Judicial function
-Samaranayake act.
The Constitution of our country is being amended nowadays with a frequency and speed which outruns the speed and frequency of amendment of our common-or-garden laws. What is more, these amendments appear to be "urgent in the national interest" and therefore not actually subjected to public discussion before their passage through Parliament in a matter of hours, with standing orders suspended.
Once upon a time, the amendment of the Constitution was a solemn process, conducted at a measured pace. A proposed amendment was long and carefully deliberated. It was exposed early to the public eye to enable public discussion of the pros and cons; and indeed its very desirability. Parliament was given the time to study the proposals and to deliberate upon and debate the proposals thoroughly before coming to a decision. There was no rush and scurry; no suspension of standing orders; no getting to second reading debate upon the very day of presentation of an amendment which not even the members of Parliament had previously seen, still less studied; no riding rough shod over requests for time to study the bill; no presentation of previously unannounced amendments, sometimes even formulated only orally and therefore left to the Speaker to perfect before he certified over his signature the due passage of the bill-in short, no saddling the country with an ill-considered, undigested and half-thought-out clause in the Constitution to suit the urgent need of a Government engaged in an immoral manoeuvre.
When Mr. Jayewardene shaped the new Constitution, what interested and worked him was the question of keeping his record majority in Parliament intact. He knew there could be defections from the government because he knew that he could never keep the rash and unrestricted promises he had made to the people in order to come to power. He knew in fact that he would be doing the very opposite of what he had promised and that even his docile crew might mutiny as the resentment of the people began to express itself. So he safeguarded himself in his Constitution by providing that he who sought to cross the floor in Parliament crossed himself out of Parliament itself.
The device Mr. Jayewardene used was to provide that, if an M.P. resigned from or was expelled from his party, he lost his seat and had no chance to come back through a by-election. I (t was provided that, instead of a by-election being held, the party to which the M.P. belonged at resignation or expulsion would nominate a successor. Incidentally, the provision was not only a means of preventing crossing. It was a means of holding this Government Party together and toeing the line under threat of expulsion from the party and loss of one’s seat in Parliament.
Politics has its ironies and, as Robert Burns said, "the best of schemes of mice and men gang aft agley." Mr. Jayewardene now finds himself in the position of having to protect himself from the provisions of his own Constitution. So, hey presto, he rushes through an amendment to amend himself.
Under the Constitution of the (non-existent) Democratic Socialist Republic of Sri Lanka, the seat of a Member of Parliament falls vacant upon such member ceasing "by resignation, expulsion or otherwise" to be a member of the recognised political party through which he came to Parliament. In the case of the present Parliament, upon the Secretary of such party informing the Secretary-General of Parliament of such cessation within three days, the S.G. forthwith informs the commissioner of Elections of such vacancy. The C.E. thereupon requires the Secretary of the ‘political party to which the member belonged to nominate a member of that party to fill the vacancy. When such nomination is received, the C.E. declares the person so nominated to be the Member for the electoral district in respect of which the vacancy occurred.
All this is subject to appeal within one month to the Supreme Court on the validity of the expulsion.
Now, as it happens, the question whether Mr. Samaranayake, 2nd M.P. for Beruwela, has lost his seat under the above provisions (Article 161 (d) (ii) read with Article 99 (13) (a) has come up and been taken to court by the S.L.F.P. Mr. Samaranayake came to Parliament through the S.L.F.P., crossed to the U.N.P. just about the time the Jayewardene – Premadasa Constitution was put through, was thereupon naturally and inevitably expelled from the S.L.F.P. informed the S.G. of parliament, he continues to occupy his seat. The S.L.F.P. has thereupon gone to court and the case is pending. If the case is lost by Mr. Samaranayake, the U.N.P. loses the seat it newly acquired after the election and the S.L.F.P. regains the seat it lost by Mr. Samaranayake crossing.
Apparently, the Government fears the outcome of the case.
Characteristically, therefore, it has decided the case by retrospective legislation which, moreover, it rushed through Parliament in a few hours as being "urgent in the national interest."
The new legislation, it is to be stressed, is not just some everyday run-of the-mill law. It is an amendment of the Constitution and what is more, that ultimate outrage on constitution-making, an amendment that is retrospective in its operation. Let us quote:-
"3. the provision of section 2 of this Act shall be deemed for all purposes, to have come in to force upon the commencement of the Constitution and accordingly:-
(a) the seat of a Member of Parliament shall be deemed never to have become vacant by reason of the operation of the provisions of the Constitutions which are repealed by the provisions of section 2 of this Act."
Section 1 repeals Article 161 (d) (ii) of the Jayewardene – Premadasa Constitution and substitutes new provisions in its place which we shall summarise later. Anyone can see that (a) covers Samaranayake’s case.
We continue to quote section 3 of the Second Amendment to the Constitution:-
"(b) where at the hearing in any court or tribunal of any application, suit or other proceeding, whether instituted before or after the commencement of this Act, any question arises as to whether as the seat of a Member of Parliament has become vacant by reason of such Member having ceased, by resignation, expulsion or otherwise, to be a member of the recognised political party to which he belonged upon the commencement of the Constitution, such question and any other question relating to the application of Article 161 (d) (ii) shall be determined in accordance with Article 161 (d) (ii) of the Constitution as amended by section 2 of this Act."
Anyone can see that (b) too covers Samanaranyake’s case.
"(c) where a Member of Parliament has ceased, prior to the date of commencement of this Act, to be a member of the recognised political party to which he belonged upon the commencement of the constitution, a communication relating there to made within two weeks of the date of commencement of this Act, to the Secretary-General of Parliament by the Secretary of such party shall be deemed to be a communication made in compliance with Article 161 (d) (ii) of the Constitution as amended by section 1 of this Act;"
Anyone can see that (c) too covers Samaranayake’s case.
"(d) where a Member of Parliament has been expelled, prior to the date of commencement of this Act, from the recognised political party to which he belonged upon the commencement of this Constitution, an application made by such Member, within one month of the date of commencement of this Act to the Supreme court for a determination that such expulsion was invalid, shall be deemed to be an application made in compliance with article 161 (c) (ii) of the Constitution as amended by section 2 of this Act."
Any one can see that (d) too covers Samaranayake’s case
In short, the whole of section 3 of this Constitution-amending Act is aimed directly at undermining, frustrating, and defeating the S.L.F.P.’s claim in the pending Samaranayake case. It is a legislative invasion and outrage upon the judicial function which the Constitution purports expressly to reserve to the courts. (Article 4 (c) And the device used is the infamous "deeming" provision which was used when Parliament, by Law, declared null and void and of no force or effect whatsoever the Court of Appeal decision in Mrs. Bandaranaike’s writ application against the Special Presidential Commission and legislatively substituted for the judgement in that case parliament’s own judgement. Government and Parliament have obviously got on the Gadarene slope of Biblical celebrity.
Finally, what does section 2 of this Amendment of the Constitution do?
As noted already, it repeals the present provision (Article 161 (d) (ii) regarding vacation of seat in consequence of "resignation, expulsion or otherwise" and substitutes fresh provisions, which are made retrospective to the commencement of the Constitution and in their effect may be summarised as follows:-
When an M.P. ceases to be a member of the political party through which he came to Parliament, the Secretary of the party informs the Speaker through the S.G. of Parliament within two weeks. If it is a case of expulsion, the M.P. is entitled, but not bound, to appeal to the Supreme Court within one month for a determination that such resignation, expulsion etc. was invalid. The Speaker, on receiving the information of the expulsion, appoints a Select Committee of at least five M.P.’s to inquire into and report on the circumstances in which such Member is alleged to have resigned from or to have been expelled from or to have otherwise ceased to be a member of such party, and the reasons therefore."
If an application has been made by the M.P. to the Supreme Court, the Select Committee will be appointed and proceed only if and after the Supreme Court has decided that the expulsion is valid. On the Select Committee’s report, "Parliament may be resolution passed by not less than 85 members voting in favour, resolve that the Member……. Shall cease to be a Member of Parliament."
Thus automatic vacation of one’s seat "by resignation, expulsion or otherwise" is gone with the Second Amendment – and gone as if it never existed in the constitution. Under the new Article 15 (d) (ii), a new and supple principle and procedure replaces the earlier principle and procedure. The Supreme Court is substantially cut out and parliament takes its place. That is to say, the judiciary is substantially displaced and the legislature - a political body, takes its place.
It will have been observed earlier that the function of the Supreme court was simply and only to decide on the validity of the expulsion of an M.P. from his arty. Now, the Parliamentary Select Committee, which replaces the Supreme court, looks not into validity or invalidity but into "the circumstances" in which such Member is alleged to have "resigned from. Or to have been expelled from, or to have otherwise ceased to be a member of such party, and the reasons therefore."
The Machiavellism of this provision is frankly disgraceful, no less disgraceful that the "deeming" provisions. Even if the Supreme Court declares an expulsion to be valid, in the event of an expelled M.P. using his entitlement to go to the Supreme Court on the question, Parliament proceeds with its Select Committee inquiry on "the circumstances" of and "the reasons" for the resignation, expulsion etc. The Select Committee could then find, for instance, that the M.P. had crossed from the Opposition S.L.F.P. group or T.U.L.F. group to the U.N.P. government group-naturally for the most estimable reasons. The Select Committee could, nay would then find the expulsion was for having done this, no doubt, most estimable and desirable (in the national interest!) crossing, or, in the case of resignation, for this most estimable purpose. Thereupon, despite expulsion from such party, there will be no reason for expulsion from Parliament! Only a resolution of Parliament backed by 85 (out of 168) Members voting for the resolution can achieve this expulsion.
As parliament is now composed, 85 votes can be provided only by the Government Party: the Opposition cannot reach even half the number! Those crossing to the Government side can do so safely; those crossing to the Opposition from the government side- a step which can never be estimable in the view of a U.N.P. or government M.P.-will simply lost their seats. Astute, isn’t it?
This from any point of view, is a prostitution of Parliament by the Government; a prostitution, moreover, that proceeds by tinkering with the Constitution, which they themselves brought urgently into force barely a year ago.
Any why has this tinkering been done; this reversal of principles; this substitution of political procedure?
Obviously because (1) the government is determined to keep the defecting second M.P. for Beruwela in Parliament; and (2) the Government anticipates that other M.P.’s will do the Samaranayake act of crossing over from the Opposition to the government side. They have tinkered with the constitution and interfered with the judicial process for petty political advantage and to facilitate the chaffering of Government in the political marker-place.
It is a disgraceful spectacle and a shameless act. It is also a gross abuse of legislative power in order to intrude partisanly, politically and completely indefensibly into the field reserved by the Constitution itself to the judiciary and the judicial process. Those who say: "Wait till 1983 to set things right" had better get it into their heads that it will not be a "1983" of their contemplation. President Jayewardene himself has given a clear hint on this score at Kollonnawa. None are so blind as those who will not see. The task of exposing and rousing the people to resistance to these undemocratic developments falls on us of the United Left Front!
February 1979
