Constitutional crisis deepens as

Government and opposition reach rare consensus on supremacy of the legislature But SC takes its course and goes ahead with cases challenging impeachment motion Amid talk of Cabinet reshuffle, ministers say money not allocated for their work; economic cala

Doctors at Johns Hopkins Hospital in Baltimore, Maryland in the outskirts of the US capital of Washington had given him an "all clear" after a medical check-up. His own personal physician Prof. S.D. Jayaratne was also on hand to hear the good news.

If he was upbeat about that, President Mahinda Rajapaksa was eager to keep close track of the latest developments relating to the impeachment of Chief Justice Shirani Bandaranayake. That prompted him to advance his plans to return to Colombo. It was originally scheduled for Tuesday (November 27) for him to arrive in Colombo on Wednesday morning. But he returned on Tuesday evening. The hurried change of plans also put paid to what might have been a move towards rapprochement in relations between Sri Lanka and the United States. To say that the relations are now strained will be an understatement. Such a move was initiated by the Sri Lankan side in what seemed an effort to restore good relations.

According to sources in Washington D.C, Robert Blake, Assistant Secretary in the State Department for Central and South Asian Affairs, received a telephone call from Sri Lanka's Ambassador Jaliya Wickremesuriya, asking whether he would like to meet President Rajapaksa for a discussion. "Assistant Secretary Blake replied he was very happy to do so and was looking towards the meeting. However, it did not materialise. We do not know the reason," one source said. However, other sources said Rajapaksa had by then decided to move to New York and return to Colombo. Otherwise, what was a strictly private visit would have assumed a semi-official character.

He boarded a train from Baltimore to New York escorted by secret service agents on Sunday. At the Ports Authority Terminal near Madison Square Garden in the Big Apple, President Rajapaksa was greeted by Palitha Kohona, Sri Lanka's Permanent Representative to the United Nations, and his deputy, Major General Shavendra Silva. Ambassador Wickremesuriya also accompanied the President. A motorcade whisked them away to the Waldorf Astoria, a hotel renowned for playing hosts to heads of state from many countries, particularly during UN General Assembly sessions.

The only engagement prior to his departure from Washington D.C. was on Saturday night when he was entertained to a dinner reception by Ambassador Wickremesuriya. Invited to attend the rice-and-curry event, besides Sri Lanka Embassy staffers, were some 60 guests, all of them Sri Lankans living in the greater Washington D.C. area. There was an exception too. That was Nirupama Rao, now India's Ambassador to the United States. Rao was closely associated with Rajapaksa when she was the Indian High Commissioner in Sri Lanka and later Foreign Secretary. So much so, the President was thrust in the eye of a controversy when she was High Commissioner in Colombo. He had broken protocol to attend a private dinner she hosted. Also present was her husband, Sudhakar Rao.

On Monday morning, President Rajapaksa boarded Emirates flight EK 204 from New York's John F. Kennedy International Airport for a twelve-and-a-half-hour flight to Dubai. With a short break there, he took a connecting Emirates flight (EK 652) to Colombo arriving on Tuesday evening. Barely 24 hours later, he chaired the weekly cabinet meeting where developments relating to the resolution to impeach Chief Justice - Bandaranayake were discussed. Rajapaksa noted that an important issue related to a business transaction amounting to millions had not been included in the resolution. He mentioned the amount was quite a staggering sum.

The Government claims it is in the possession of details where Shirani Bandaranayake allegedly opened an account at the National Development Bank and then brought it to a zero account just at the time when she had to make a declaration so that she didn't have to make a declaration either to Inland Revenue or in her Assets Declaration. This has happened for several years, since 2008. In the last year (2012) the amount in the account topped Rs. 200 million, claims the Government, but all this is subject to proof and in any event not part of the impeachment motion. Why it was not part of the impeachment motion also raises questions.

It is here that ministers took note of the directive of the Supreme Court that certified copies of an order from the SC be circulated among eleven members of the Parliamentary Select Committee (PSC) probing the Chief Justice. The matter was the subject of some discussion with questions being raised on the legality of such action since their position was that Parliament, the legislature, was supreme and what happens within the four walls of Parliament was the business of Parliament, and not the Supreme Court.

The SC order on November 22 came after it had taken up different applications challenging the constitutionality of the appointment of the PSC. This is on the stated grounds that the PSC has been appointed under Section 78 (a) of the Standing Orders of Parliament which, it is claimed, was not a legal statute but a procedure to conduct business of the House. Such petitions have been made to the SC under Article 125 of the Constitution which states that the "sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution, and accordingly, whenever any such question arises in the course of any proceedings in any other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination of such question."

In terms of Constitutional provisions, the Supreme Court is required to "determine such question within two months of the date of reference and make any such consequential order as the circumstances of the case may require."

Making an order pending final determination, the Supreme Court stated among other matters, that "at this stage, this Court whilst re-iterating that there has to be mutual respect and understanding founded upon the rule of law between Parliament and the Judiciary for the smooth functioning of both the institutions, wishes to recommend for the members of the Select Committee of Parliament that it is prudent to defer the inquiry to be held against the Hon. Chief Justice until this Court makes its determination of the question of law referred to by the Court of Appeal. The desirability and paramount importance of acceding to the suggestions made by this Court would be based on mutual respect and trust and as something essential for the safeguarding of the rule of law and the interest of all persons concerned and the ensuring that justice is not only done but is manifestly and undoubtedly seen to be done." Copies of the order were delivered to the Colombo addresses of members of the PSC and also care of their Parliament addresses. Copies were made available when the PSC met too.

On Thursday, just a day after the weekly cabinet meeting where political strategies over the situation were discussed, Minister Nimal Siripala de Silva, Leader of the House and member of the PSC, raised an issue of privilege in Parliament over the Supreme Court order. He claimed that there were no legal provisions for an outside body, party, institution or court of law to issue commands, recommendations on the procedures and functions of the PSC.

It was pointed out in this political commentary last week that "the Judiciary and the Legislature, it is clear, are freewheeling towards a head on collision course."

What transpired at the Supreme Court last Friday, just after de Silva had raised the privilege issue, seemed to reflect this situation.

The three-judge bench presided by Justice Gamini Ameratunga and including Justice K. Sripavan and Justice Priyasath Dep issued notice on the PSC returnable on December 10. That means the members could intervene in court if they so wish. Further hearing of the case will be on December 13 and 14. Attorney General Palitha Fernando PC said in his submissions to the SC that though he had received notice, he had not been able to file written sub- missions since he has not received all the written documents.

Now to edited excerpts of what Minister de Silva told Parliament whilst raising an issue of privilege. He made the speech in Sinhala.

"Hon. Speaker, I wish to thank you for allowing me to raise a privilege issue. An Impeachment Motion duly signed by 117 Members of Parliament as per Article 107 (2) of the Constitution to remove Chief Justice Shirani Bandaranayake from her position was entertained in the Order Paper of November 6, 2012 on your orders. A special Parliamentary Select Committee had been appointed on November 14, 2012 to investigate the charges mentioned in the impeachment motion under the chairmanship of Minister Anura Priyadarshana Yapa with 10 other Members of Parliament. This special PSC under the powers vested in it by the Parliament Standing Orders had met and commenced its investigations and is due to meet again on December 4.

"In this context, several parties have filed writ applications in the Court of Appeal and they were referred to the Supreme Court. These writ applications have named the Speaker and the members of the PSC as respondents. I would like to inform the Speaker that I and the other members have received the notices. Some of these notices mention the Speaker as the first respondent. The petitioners have sought to suspend the functions and proceedings of the PSC. I would like to point out that there are no provisions in the Constitution or Standing Orders or any other law in the country to challenge the Parliamentary Select Committee appointed by the Speaker. Further, the Special Parliamentary Select Committee should follow the guidelines, instructions and commands from the Speaker and this Parliament. There are no legal provisions for an outside body, party, institution or court of law to issue commands, recommendations on the procedures and functions of the PSC. The Speaker and the Members of Parliament are bound by the responsibility to safeguard and protect the identity, independence and dignity of Parliament from the threats against it.

"The Speaker, Parliament or its committee members are not liable to decisions or determinations dispensed by these writ applications. In this regard I would like to draw the attention to the Hansard of Parliament which carried an order given by then Speaker Anura Bandaranaike on June 20, 2001. That order says the Supreme Court is not in a position to issue injunction orders and the Speaker is not bound by such orders. Therefore, I would call upon the Speaker to take this precedent into consideration and to give an order on the notices we received threatening the independence, sovereignty, identity and dignity of Parliamentary democracy."

Then Speaker, the late Anura Bandaranaike ruled that Parliament was supreme. He said the Supreme Court had no jurisdiction to issue interim orders restraining the Speaker in respect of the steps he is empowered to take under Standing Order 78 (a). The ruling was prompted by the issue of a restraining order on Speaker Anura Bandaranaike by then Chief Justice Sarath N. Silva because there were moves for an impeachment motion against him (Silva) in Parliament. By then, no motion was placed on the Order Paper and only signatures were being collected. The restraining order was based on two fundamental rights petitions heard by a Supreme Court bench presided by then Chief Justice Silva himself. However, the motion did not materialise since the then President Chandrika Bandaranaike Kumaratunga later dissolved Parliament.

Summarising his decision, Speaker Bandaranaike declared that: 1. The Supreme Court had no jurisdiction to issue the interim orders restraining the Speaker of Parliament in respect of the steps he is empowered to take under Standing Order 78(a). 2. The interim orders dated June 6, 2001 are not binding on the Speaker of Parliament. 3. There are no legal obligations to comply with the said orders.

Both the government and the opposition parties seemed to concur without question on the privilege issue raised by Minister de Silva. A