Legal Services and Laws of Sri Lanka


SLR-1991 Vol.2-P408

SLR - 1991 Vol.2, Page No - 408

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

COURT OF APPEAL.
WIJEYARATNE, J., AND EDUSSURIYA, J.
C. A. APPLICATION NO. 1000/91.
NOVEMBER 27, 1991.

Mandamus and Certiorari - Constitutional duty under Article 38 (2)(c) of the Constitution - Parliament (Powers and
Privileges) Act, No. 21 of 1953.
The entertainment of the resolution under Article 38(2)(a) of the Constitution by the respondent as Speakerandthefact
that the respondent subsequently "ceased toentertain"theresolutionandanyordersmadethereonarepartofthe
proceedings of Parliament and cannot be questioned in any Court of Law whether by way of writ or otherwise.

In its narrow sense the expression "proceedings in Parliament" is used to denote the formal transaction of business in the
House or to committees. In its wider sense the expression includes matters connected with or ancillary to the formal
transaction of business.

Cases referred to:
1. A. G. v. Samarakkod 57 NLR 419. 421
2. Bradlaugh v. Gossett 1884 - 12QBD 273

3. British Railways Board v. Pickin (1974) 2 W.L.R. 208

APPLICATION for writs of Mandamus and Certiorari in respect of orders made by the speaker.
P. Dharmadasa Gomes in person.
December 04, 1991.

WIJEYARATNE, J.

The petitioner has filed this application on 13.11.1991 against the respondent (the Speaker of the Parliament)statingthat
a member of Parliament has given notice to the respondent on 28.08.1991ofaresolutionunderArticle38(2)(a)ofthe
Constitution setting out certain allegations against His Excellency the President and thattherespondenthasentertained
the same and informed His Excellency accordingly.

The petitioner avers that His Excellency has obtained the advice oftheAttorney-General.Thisadvicewassenttothe
PresidentialSecretariaton12.09.1991andthereafterconveyedtotherespondent.Acopyoftheadviceofthe
AttorneyGeneral is annexed to this application, marked as P2.

Thereafter it is averred that the respondent had sent a letter to His Excellency stating that the resolutionhadbeenduly
accepted.

The petitioner alleges that the respondent did not carry out the statutory functions that he was boundtoperform,namely,
to place the resolution before the Parliament but, instead of performing his constitutionalandstatutoryfunctionsunder
Article 38(2)(c), on 08.10.91 had informed His Excellency that he"ceasedtoentertain"theresolution,whichliehad
accepted on 28.08.91.

The petitioner has filed this application to compel the respondent toperformhisconstitutionaldutyandtolaythis
resolution before the Parliament Linder Article 38(2)(c).

Therefore the petitioner prays for a mandate in the nature of a Writ of Mandamus "commanding" therespondenttoplacethe
said resolution before the Parliament and to quash by a Writ of Certiorari the decision of the respondentmadeon08.10.91
that he "ceased to have entertained" the said resolution.
The petitioner also moves to have this case referred to the Supreme Court under Article 125 oftheConstitutionifthis
court is of the view that a question of interpreting the Constitution is involved.

When appearing in support the petitioner submitted that his rightsasacitizenandvoterhavebeenviolatedbythe
respondent.

Section 67 of the Constitution of 1978 lays down as follows:-

"The privileges, immunities and powers of Parliament and of its Members may be determined and regulatedbyParliament
by law, and until so determined and regulated, the provisions of the Parliament (PowersandPrivileges)Act,shall,
mutatis mutandis, apply".

The Parliament (Powers and Privileges) Act, No. 21 of 1953, as amended by Law No. 5 of 1978 and Acts Nos. 17 of 1980,25of
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 forceon31.12.80,
has not been reproduced in the 1980 Revised Edition (Unofficial) of the Legislative Enactments for the reason (asstatedin
the Preface thereto) "that such enactments were to be repealed or likely to lapse in the near future". So farthisActhas
not been repealed or replaced.

However this Act (without the above amendments) appears as Chapter 383 in the Revised Edition of theLegislativeEnactments
of 1956.

Provision has been made by section 7 of our Act forourParliamenttohold,enjoyandexercisethesameprivileges,
immunities and powers for the time being held, enjoyed and exercised bytheCommonsHouseofParliamentoftheUnited
Kingdom and by the members thereof.

The word "member" has been defined in section 2 of our Act to include the "Speaker".

These privileges are necessary for Parliament to maintain its independence of action and the dignityofitsposition.The
basis of the claim is that it is an essential part of the constitutionandworkingofParliamentthatthememberswho
comprise it should be able to attend to their duties without interruption or molestation.

Section 9 of the said Act reads as follows:__

"All privileges, immunities and powers of the House shall be part of the general and public law of Ceylon, and it shall
not be necessary to plead the same, but the same shall in all courts in Ceylon be judicially noticed"

Hence it is the duty of this court to take judicial notice of the privileges, immunities and powers of Parliament.

Section 3 of the said Act reads as follows: __

"There shall be freedom of speech, debate and proceedings in the House and such freedomofspeech,debateorproceedings
shall not be liable to be impeached or questioned in any court or place out of the House".

This section follows the English law and is an adaptation of Article 9 of the Bill of Rights.

(See the observations of H. N. G. Fernando, J., in The Attorney - General v. E. P. Samarakkody and another)

Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament (20th Edn. 1983) at page88states
as follows: __
"Right to exclusive cognizance of proceedings in Parliament
Article 9 of the Bill of Rights. confirming the long-standing claims of each HouseofParliamenttoexcludealloutside
interference within its own walls - claims which had only been seriously challenged in the case of theHouseofCommons-
lays down that ?freedom of speech and debate or proceedings in Parliament ought not to heimpeachedorquestionedinany
court or place outside Parliament.'

In the case of Bradlaugh v. Gossettt (2) it was recognised by the courts in England of theirincompetencetoinquireinto
internal proceedings of a House of Parliament. Mr Justice Stephen in the said judgment at page 278 states as follows:__

"I think that the House of Commons is not subject to the control of Her Majesty's Court in its administrationofthatpart
of the Statute law which is related to its own internal proceedings"
Parliament is the guardian of its own privileges and is the sole judge of the lawfulness of its own proceedings.

In the case of British Railways Board v. Pickin (3) a respondent before the House of Lords in 1973advancedtheallegation
that in obtaining the enactment of section 18 of the British Railways Act 1968 in their favour, theBritishRailwaysBoard
had fraudulently concealed certain matters from Parliament and its officers, and had thereby misled Parliament intogranting
certain rights to them. The House of Lords found unanimously that the respondent was not entitled to ?go behind' theActof
1968 to show that section 18 should not be enforced, nor was he entitled to examine proceedings inParliamentinorderto
show that the appellants, by fraudulently misleading Parliament, caused him loss.

Lord Morris of Borth-y-Gest in the said case stated as follows:__

"It must surely be for Parliament to lay down the procedures which are to be followed before a Bill can become anAct.
It must be for Parliament to decide whether its decreedprocedureshaveinfactbeenfollowed.Itmustbefor
Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed: it must
be for Parliament to decide whether in any particular case to dispense with compliance with such orders. It must he for
Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording setoutin
the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which
Parliamentary privilege should attach. It should be impracticable and undesirable for the HighCourtof.Justiceto
embark upon an enquiry concerning the effect or the effectiveness of the internalproceduresintheHighCourtof
Parliament or an enquiry whether in any particular case those procedures were effectively followed"

These principles are embodied in section 3 of our Act quoted earlier and proceedings in the House shall not be liabletobe
impeached or questioned in any court.

Then the question arises as to what is meant by "proceedings in Parliament". Halsbury's LawsofEngland-Hailsham-(4th
Edn. 1980) Vol. 34 at page 598 states as follows in reference to the United Kingdom:__

"An exact and complete definition of ?proceedings in Parliament' has never been given by the courts of law or by either
House. In its narrow sense the expression is used in both Houses to denote the formal transaction of business in the House
or in committees.... In its wider sense ?proceedings in Parliament' has been used to include matters connected with, or
ancillary to, the formal transaction of business".

Therefore the "entertainment" of this resolution under Article 38(2)(a)oftheConstitutionbytherespondentas
Speaker and the fact that the respondent subsequently "ceased to entertain" the resolution and any orders madethereon
are part of the proceedings of Parliament and cannot be questioned in any court of law whether bywhetherbywayof
writ or otherwise.

Finally the petitioner made a submission that the Constitution is supreme and that the respondent has to actinterms
of the Constitution and carry out his statutory duties laid down therein. Undoubtedly these are statutorydutieslaid
down in the Constitution but nevertheless they are part of the proceedingsofParliament,thereforethiscourtis
precluded from examining these matters.

There is no question involving the interpretation of the 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 go into this matter. Therefore I refuse noticeontherespondent
and dismiss the application.

Edussuriya, J. __ I agree..

Application dismissed.


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