Leader of the Communist Party Parliamentarian has observed that the impasse over the reinstatement of CJ Shirani Bandaranayaka and the removal of CJ Mohan Peiris was nothing but another crisis generated by the J.R. Constitution of 1978, MP D.E.W. Gunasekera told Parliament on Monday.
Taking part in the debate at the time of adjournment of the House on the removal of Mohan Peiris from the office of Chief Justice, MP Gunasekera said:
“I do not want to recount all such instances. However, touching upon the Judiciary, this House had to face three Impeachments and that was against Chief Justice Neville Samarakoon, Sarath N. Silva and Dr. Shirani Bandaranayake and now the so-called removal of Mohan Peiris by the President.
Despite all such experiences of crises, this House had failed to take corrective measures so as to obviate the need to face such crises. When the question of Shirani Bandaranayake came up in Parliament on January 11th, 2013, I refused to support the Impeachment on the ground that this Parliament was required in terms of Article 107 (3) to provide a process for such an Impeachment with such a procedure in respect of investigation and proof of the alleged misbehaviour or incapacity and also the right of such accused judge to defend.
I repeat that in terms of Article 107 (3) Parliament is called upon to enact a law or Standing Order. We failed to satisfy this requirement till 1984, until the need arose in the case of the Impeachment against Neville Samarakoon. And yet again, despite the experiences in respect of CJ Sarath N. Silva, CJ Shirani Bandaranayake and now CJ Mohan Peiris, we have miserably failed to enact a law or Standing Order with regard to process or procedure to meet with such situations.
Regrettably, even the Judiciary or the Bar Council or the Attorney General or even the legal fraternity (who for the slightest thing come to the street) have not realised the need for a process or procedure in order to avoid such confrontations between the Judiciary and the legislature or the Judiciary and the Executive. This failure on our part had led to this impasse; crisis and confrontation.
I must remind this House that even the inadequate Standing Order 78 A, which is the subject matter under debate, was introduced to this House in a mighty hurry within a matter of 24 hours. Mr. Speaker, the whole question of unconstitutionality arose from this glaring inadequacy. It is in this background, that we should discuss the current issue of the reinstatement of CJ 43 (Shirani Bandaranayke) as well as the removal of C.J. 44 Mohan Peiris. I do not propose to repeat all events that led to this debate.
I wish to raise the fundamental of the constitutional requirements that we must satisfy and that is the supremacy of Parliament. As representatives of the people, we can claim to be supreme. But the fact remains that under the 1978 Constitution, our supremacy has eroded. Our power has been substantially reduced. As Legislators we do not enjoy the powers that are enjoyed under the 1972 Constitution. That was why we were demanding right throughout that remedy and that is to get rid of this destructive and defective Constitution. In the past, there have been attempts at invasion by Judiciary on the Legislature by CJ Sarath N. Silva. Speaker Anura Bandaranaike had to react and resist that invasion.
Similarly, there had been attempts of invasion by the Executive on the Legislature, as in the case of CJ Neville Samarakoon and C.J. Dr. Shirani Bandaranayake. In the case of CJ Neville Samarakoon, Laltih Athulathmudali saved the situation by arranging a quiet retirement for Neville Samarakoon. In the case of Dr. Shirani Bandranayake, the Legislature has succumbed to the invasion by the Executive on the Legislature. It is in this context, that I look at the two issues relating to the reinstatement and the removal of CJ 43 and CJ 44.
Even if I am prepared to accept what the Prime Minister stated on the floor of this House, giving as reasons for the Executive’s behaviour on these two issues, you cannot get behind the need to honour the supremacy of Parliament.
Granting that Parliament may have erred by its failure to observe the provisions of the Constitution, that matter should have been referred to Parliament for remedy. The Executive or for that matter the President is not above the Constitution. I repeat that neither the Executive nor the Judiciary is above the Constitution.As much as Speaker Anura Bandaranaike resisted the invasion by the Judiciary, the Hon Speaker should, in this case have resisted the invasion by the Executive.To adjudicate on the issues relating to both reinstatement of C.J. 43 and the removal of C.J. 44 is a matter for the Legislature. Parliament never attempts to use the powers of the Executive or the Judiciary. Equally, we as Legislature cannot allow the Executive or Judiciary to cause invasion of our territory. The reinstatement or the removal of the Supreme Court Judges falls within the Constitutional rights of the Legislature. The Executive cannot by pass the Legislature, under any circumstances. In these two issues, the Executive has blatantly bypassed the Legislature. Even if the Legislature has failed to observe the procedure or the process, as required by the Constitution that could have been corrected by the Legislature itself. The Executive cannot act arbitrarily simply because the Legislature has erred.
The whole episode of Shirani Bandaranayake and Mohan Peiris was a perpetration by the Executive. I request the Speaker to study these two issues and pronounce the Legislature’s Constitutional position as a ruling of the Legislature for future guidance in order to avoid repetition of such invasions by the Executive or the Judiciary. I do not claim that Parliament is above the Constitution. But we claim to be supreme as representatives of the people who are sovereign. Time and again, issues of this nature arise from the destructive and defective nature of the J.R. Constitution. We shall not abdicate our right to defend Parliament.”