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Courts have no power to interfere directly or indirectly with the affairs of parliament

Feb 12, 2011 4:59:41 PM- transcurrents.com

(Speech made by Ranil Wickremesinghe – Leader of the opposition at the opening ceremony of the 3rd CPA Asia Regional Conference in Colombo, on February, 12, 2001)

by Ranil Wickremesinghe

Mr Speaker,

Honourable Speakers of Pakistan, Bangladesh and Maldives
Honourable Prime Minister
The Guest of Honour – Honourable Lady Speaker of the Lok Sabha
Your Excellencies
Fellow Parliamentarians and friends

The South Asian Parliaments have a long history going back to the Order in Council which established the Legislative Council of Ceylon in 1835 in the case of Sri Lanka or Indian Council Act of 1861 in respect of the Parliaments of the sub continent. This has given us invaluable experience in shaping the rules, procedures and practices which govern the conduct of proceedings in our chambers.

We are also members of the Commonwealth of Nations and more particularly of the Commonwealth Parliamentary Association. Therefore our obligations are not confined to upholding the rules of procedure but also to implement fundamental political values of the Commonwealth of Nations. This is what makes us different from other Parliamentary Associations. Being members of the Commonwealth we are all committed to Parliamentary Democracy and the role of Parliament in upholding the fundamental political values of the Commonwealth. The Harare Declaration incorporated the Commonwealth’s commitment to

* the liberty of the individual under the law,

* equal rights for all citizens;

* democracy and democratic processes,

* just and honest government.

The Coolum Declaration reiterated the commitment to "strengthen the Commonwealth’s capacity to support its members’ pursuit of democratic values and the rule of law". The Declaration also clarified the condition under which the Commonwealth Ministerial Action Group would act to deal with serious or persistent violations of the Harare Declaration.

In the 2009 Trinidad and Tobago Resolution the Heads of Government reiterated the Commonwealth’s core values.

* Democracy: reaffirming our belief in the inalienable right of the individual to participate by means of free and democratic political processes in shaping the society in which they live; underlining that not only governments but all political parties and civil society also have responsibilities in upholding and promoting democratic culture and practices as well as accountability to the public in this regard; and recognising that Parliaments are essential elements in the exercise of democratic governance;

* Recognising that tolerance respect and understanding strengthen democracy

* Separation of powers:

* Rule of law; and

* the Freedom of expression

These declarations are supplemented by the Latimer House Principles for Good Governance of 2005. These principles provided a framework for the implementation by governments, Parliaments and the judiciary of the Commonwealth’s fundamental values. This includes

* The Parliamentarians’ rights to carry out their legislative and constitutional functions free from unlawful interference.

* The Parliaments duty to promote zero tolerance of corruption as well as a transparent and accountable Government, together with freedom of expression.

These principles require Parliaments to establish or enhance appropriate oversight bodies such as the Public Accounts Committee, Ombudsman, Human Rights Committees, Anti-Corruption Committees, Auditors General and information commissions which can play a key role in enhancing public awareness of good governance and rule of law issues.

Corruption and bad governance brings about suffering for the people and the decay of the State. Across the world, we see people agitating for the removal of corrupt leaders who have fattened themselves by bleeding their countries while the people suffer in poverty. I am happy to note the presence of Srimathi Meera Kumar, Speaker of the Lok Sabha. India has public interest litigation which can challenge the corruption of the high and mighty and also a Freedom of Information Act which promotes transparency in public matters. I am aware that sentiments have been expressed in India of the need to strengthen the Lok Sabha Committee system by making it mandatory for the Government to report back to Parliament on the follow up action. This is a very welcome suggestion.

Attempts to stifle probes and sweep corrupt activities under the carpet are not compatible with Democracy. Denial of basic rights, covering Government activities in a veil of secrecy and establishing a Constitutional dictatorship supposedly for the purpose of furthering economic development and prosperity is also unacceptable. India’s vibrant democracy and its economic development contradict the theory that a country can achieve economic development only through autocratic means. In fact, economic development becomes meaningful only when the people enjoy fundamental human rights.

We also have similar issues in Sri Lanka and there is no doubt that oversight by effective Parliamentary Committees like the Public Accounts Committee (PAC) would be the ideal forum to probe similar issues and inquire into the magnitude of corruptions. However, oversight should be effective and not merely nominal. This is why we have called for :
a. Senior members of the Opposition to chair the Public Accounts Committee and the Committee on Public Enterprises (COPE); and

b. the Enactment of the promised Freedom of Information Act.

We in the Opposition have also tabled a Resolution for the establishment of Oversight Committees in Parliament because we find that the present Consultative Committees headed by the Ministers are ineffective.

How are these fundamental values to be upheld? The main issue is how are these to be enforced. A Parliamentary democracy also means the rule of the majority in Parliament. Furthermore, the Cabinet of Ministers is a committee of senior leaders of the majority party in Parliament. Therefore, there are many instances where Ministers seek to protect their governments by restricting these Parliamentary Rights and values. Therefore an onerous task falls on the Speaker, to ensure that his rulings are based on the Fundamental Commonwealth Values.

The task of the Speaker is not an easy one, judging from the fate Madam Speaker of your predecessor in the Lok Sabha. Secondly, who is to advise the Speaker on the core values of the Commonwealth. There are also in addition, similar declarations by the Inter Parliamentary Union based on the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.

One of our former Speakers, the Late Anura Bandaranaike showed a way out. When confronted with a decision where a bench of three judges of the Supreme Court issued a Stay Order restraining the Speaker. He took advice from a panel consisting of distinguished lawyers, nominated by both sides of the House, the Secretary General of Parliament and some of his predecessors. As a result he upheld the principle in Bradlaugh v. Gossett that the Courts have no power to interfere with the affairs of Parliament directly or indirectly.

I can understand the dilemma of a Speaker when these issues are raised. I myself have placed our Speaker in this situation by taking up the case of the infringement of a member’s rights through the mechanisms of Army Courts Martial and denying him the protection of a more recent law which safeguards his fundamental rights.

Therefore, in such instances, a Speaker of Parliament should be advised by a panel which will include CPA representatives nominated by the Secretary General of the CPA. This will ensure that the fundamental political values of the Commonwealth are upheld. This course of action will ensure that the Speaker’s rulings incorporate these fundamental political values.

Secondly the Edinburgh Plan of Action of July 2008 called for the Commonwealth Secretariat to establish a Standing Committee to report on the implementation of these principles to the deliberations of the Commonwealth including the Commonwealth Ministerial Action Group. There is a need to take action to implement this proposal or in the alternative to expand the mandate of the Eminent Persons to cover this responsibility.

Our Regional Association has also an obligation to promote peer review of the compliance with the principles by Regional Parliaments. It is best that the South Asian Regional Association and the Indian region Associations jointly carry out this review.

Since the 17th Century Parliaments have led the fight for individual liberty and democracy. I need not recount the role of the British Parliament and the American Congress. But it is we in the region who have made Democracy meaningful to nearly one and a half billion people. This is why I call upon our Regional Parliaments to reaffirm our commitment by devising an effective mechanism to ensure that we all implement the fundamental political values of the Commonwealth. We must continue to do so by implementing the Harare Declaration. If we do not act, we will only be betraying our voters.