On the Constitutionality of a Parliamentary Select
to inquire into the conduct of the Chief Justice
Written Submissions by S. Nadesan Q.C. - 17 October 1984
Sri Lanka Parliamentary Series, Sessional Paper 71 of 1984, 13 December 1984
"There is a distinct separation of powers in the Sri Lankan
Constitution and Parliament in probing the conduct of judges in respect of
judicial proceedings is interfering in the administration of justice and
trespassing on a field which the Constitution has reserved for the
Summary of Written Submission by S.Nadesan Q.C.
(a) The Constitution provides that sovereignty is in the
people and is inalienable (Article 3). To amend this
provision a two-thirds majority of Parliament is not enough
- it also requires a referendum (Article 83 (a) ).
(b) What is meant by the "sovereignty " referred to in
Article 3 is explained in the Article immediately following.
The two Articles have therefore to be read together.
Sovereignty is described as including the powers of
(c) The powers of government are further described as
being the legislative, executive and judicial powers, The
Constitution goes on to provide bow these powers are to be
exercised. As for judicial power, it is provided that this
an be exercised by Par1iament direct only in one exceptional
instance-that is, in relation to parliamentary privilege,
(which is not relevant to the present case), in all other
instance, says the Constitution, Parliament shall exercise
judicial power not direct but through courts and tribunals.
(d) The wording of Articles 3 and 4 of the Constitution
therefore makes it dear that the way in which judicial power
is exercised is part of the provision made in respect of
powers of government, which in turn is an element comprised
in the sovereignty of the people. To alter the way in which
judicial power is to be exercised, for instance to say that
not only in respect of Parliamentary privilege, but also in
respect of certain other matters, it can be exercised
directly by Parliament instead of through courts, would be
to affect the sovereignty of the people and therefore
require a referendum,
(e) What is sought to be done by the present Select
Committee of Parliament. inquiring into allegations against
the Chief Justice is clearly nothing less than the exercise
of judicial power.
(f) However the exercise of judicial power by Parliament
in any matter other than one relating to parliamentary
privilege is, as explained above, unconstitutional if a Bill
were to be presented in Parliament seeking to confer this
power on a Select Committee of Parliament, it would have to
be passed not only by a two-thirds majority but also by a
(g) What Parliament cannot do by merely passing a law
without a referendum it cannot do by adopting a Standing
Order, in fact the Constitution specifically provides that
Standing Orders are subject to the provisions of the
Constitution, (Article 74). Therefore, even it a Bill
amending the Constitution is of such a nature as to require
only a two-thirds majority and not a referendum, the
previsions of such a Bill cannot be made by Standing Order.
(h) The. Standing Order under which this Select
Committee has been set up (Standing Order .78A) is,
therefore, of no effect in law, and any action taken under
it would be a violation of the Constitution.
Full text of Written Submission by S.Nadesan Q.C.
These submissions relate to my objection to the
constitutionality of the proceedings and findings of the
Select Committee appointed under Standing Order 94 to
inquire into and report to parliament in respect of the
speech made by the Chief Justice which i,s recited in the
resolution on f lie address for the removal of the Chief
(1) A Constitution is primarily an instrument to
distribute political power and it is hard to escape the
necessity of some tribunal with authority to declare when
the prescribed distribution has been disturbed, In our case,
it is to the Supreme Court that this task is entrusted by
(2) The ultimate Court of Appeal under our Constitution
is the Supreme Court of our country. If the question is
asked "what if the judges make mistakes ?' the answer is
that somewhere there must be finality as to the adjudication
of constitutional or other disputes and our Constitution
ascribes that finality to the determinations of the Supreme
Court When the Supreme Court interprets the law what it says
is the law. When it applies the law to the facts and
determines the matter in dispute such determination is
final. Someone else may consider the reasoning of the Court
unsound and criticise the judgment, but what that someone
else says ~s the correct law is not the law as the
Constitution has not made him the final authority in the
determination of disputes or in the interpretation of the
laws of this land,
3. I consider that some of the judgments of the Supreme
Court are wrong but what I say is not the law. What the
Supreme Court declares to be the law is the law. What the
President or the Cabinet of Ministers or their legal
advisers, however eminent they may be, think is the law is
not the law if their view is in conflict with the view of
the Supreme Court, If they do not like the law as pro.
pounded b~' the Supreme Court they can initiate the
necessary legislation to amend, modify or rescind the law as
declared by the Supreme Court, Until thor1 they nave to
respect the law as propounded by the Supreme Court, If they
substitute their view of the law for that of the Supreme
Court they will be acting unconstitutionally.
4. The Attorney-General himself may express an opinion
different from that of the Supreme Court but what the
Attorney-General says is not the law He is a member of the
executive. He is not entrusted by the Constitution with the
power to adjudicate on matters of law or fact in respect of
any dispute between subject and subject or the subject and
the State. If after a decision of the Supreme Court he is
asked in another case what the law is on a matter covered by
the decision he
has to say that the law is what the
Supreme Court has decided, He may say that he does not agree
with the view of the Supreme Court, In that event all he can
do is to test his opinion by making due application for a
fuller Court of the Supreme Court to consider the matter and
if the matter comes before the fuller Court and that Court
reverse the earlier judgment from that day onwards the law
on the matter will be that pronounced by the fuller Court.
But this decision will not affect the rights of parties to
the earlier decision of the Supreme Court.
5. Once the law is set out by the Supreme Court it is
incumbent on all organs of government to respect the law as
thus laid down however much they may disagree with it, or do
not like it, until that law is changed by legislation or
reversed by a fuller Court. Neither the executive nor the
legislature can exercise any sort of supervisory control
over the Supreme Court, call the judges before it, question
them as to how they came to some conclusions etc. If they do
so they are interfering with the functions of the Supreme
Court, undermining the independence of the judiciary and
bringing into disrepute and contempt the administration of
justice. They are usurping functions which are not theirs
under the constitution.
6. Under our Constitution the conduct of judges whether
of the minor judiciary or of the superior court-s cannot be
raised whether by substantive motion or otherwise in
Parliament as such discussion in Parliament undermines the
independence of the judiciary which is, as stated in
paragraph 37 of the written statement of defence marked "Al
", part of the basic structure of the Constitution, The
reasons for considering the independence of the judiciary as
part of the basic structure is clearly set out in "Al".
7, This independence of the judiciary is also ensured by
the separation of powers under our Constitution with regard
to which there can be no doubt.
8. Justice Wanasundera having examined the provisions of
our Constitution stated in the Ceylon Daily News Contempt
Case: "I think that no counsel before us disputed that these
provisions indicate an unmistakable vesting of the judicial
powers of the people in the judiciary established by or
under the Constitution and the Parliament acts as a conduit
through which the judicial power of the people passes to the
9. To ensure the independence of the judiciary our
Constitution has established a JSC which is responsible for
the appointment and disciplinary control of the judiciary,
created a special class of public officers called scheduled
public officers under the control of the JSC made any
interference with the JSC an offence and also provided that
judges of the superior Courts shall hold office during good
behaviour and shall be removed from office only in
accordance with the stringent provisions prescribed in
Article 107 of the Constitution.
10. With regard to similar provisions in the Ceylon
Independence Order-in-Council the Privy Council observed in
Liyanage's case "These provisions manifest an intention to
secure in the judiciary a freedom from political legislative
and executive control. They would be inappropriate in a
Constitution by which it was intended that judicial power
should be shared by the executive or the legis1ature"
ii, Accordingly under the provisions of our Constitution
the judiciary cannot be subject to any political,
legislative or executive control or interference.
in the case of a District Judge, representations are made to
a Member of Parliament by an influential party supporter in
his electorate that the District Judge held against him in a
case because he has taken bribes from hl~ opponent or
because the District Judge secretly was a supporter of the
opposite political party or because of personal animosity
against him and that he also hears from reliable sources
that the Judge has taken bribes in several other cases too,
the M.P. may well believe the story.. The M.P. then reads
Standing Order 78 and concludes that he is entitled to bring
the matter before Parliament by substantive motion,
Accordingly he presents a motion in Parliament in the
"Whereas Mr, District Judge of the District Court of in
Case No. dismissed the plaintiff's action and it is alleged
that he did so as he has taken a bribe etc. I move that a
Select Committee of Parliament he appointed to investigate
the matter and report to Parliament as to whether there is
any truth in the allegations or not and if any of the
allegations are true as to what further action should he
taken in the matter ".
This motion is accepted by the Speaker who is of the view
that under Standing Orders such a motion can be brought in
Parliament and it finds a place in the Order Paper and
thereafter in the news media, A Select Committee of
Parliament is appointed which proceeds to summon witnesses
and also the District Judge, investigate the matter, hear
the waitresses on both sides and makes its report to
Parliament. The proceedings may be kept secret until the
report is made, but everyone is aware that the inquiry is
proceeding before the Select Committee, which is a fact
13. While all this is happening the District Judge
continues to sit in Court and is hearing eases day after
day, Will not such proceedings in Parliament: undermine the
independence of the judiciary? Will it not shake the
confidence of the people in the due administration of
justice? Will it not give an impression to the people that
under our Constitution the legislature has some sort of
disciplinary or supervisory control over the judiciary? Will
not other members of the judiciary think that they should
have due regard to the fact that a litigant is an
influential member of the ruling party in making their
decisions? If these questions are answered in the
affirmative will it not mean that though the Constitution
was framed to secure in the judiciary a freedom from
legislative pressure or interference yet Parliament is
violating the provisions of the Constitution?
14, In this connection it may be noted that under
Article 116 of the Constitution interference with the
judiciary is made an offence. Article 116(1) provides that
every judge shall exercise and perform his judicial powers
and functions without being subject to any direction or
interference from any other person except a superior court
or other person entitled under law to direct or supervise
such judge. The only other person entitled by law to direct
or supervise a judge in certain matters is the JSC. The
legislature is not given by law any power to supervise any
Judge, Indeed, the separation of powers means that the
legislature has no such power and that the judiciary is
completely independent of the legislature.
15. Article 116(2) provides that every person who,
without legal authority, interferes or attempts to interfere
with the exercise or performance of the judicial powers of
any judge shall be guilty of an offence punishable by Use
High Court on conviction after trial without a jury with
imprisonment up to one year and/or with a fine and may in
addition be disqualified for a period not exceeding seven
years from being an elector at any election or from holding
any public office or from being employed as a public
16. In the case of the District Judge referred to in
paragraph 12 above, the M,P. to whom the original complaint
was made should have forwarded the complaint to the JSC for
necessary action or the litigant himself should have
directly addressed his complaint to for JSC who would
investigate the matter discreetly without any publicity and
take necessary action.
17. No power has been given by the Constitution to
Parliament through the device of a Select Committee or
otherwise to interfere in any way with the administration of
justice. When a competent court has decided on what should
he done for the protection, vindication and enforcement of
the rights of any person, Parliament has not been given the
power to question the Judges or any other officer of the
Court or to probe into the circumstances in which the
judgment came to be written, investigate the facts anew,
arrive at a conclusion as to whether the judgment or any
order is justified or not or as to the circumstances under
which judgment was delivered on one day and not on another
18. The independence of the judiciary is as mentioned
earlier a part of the basic structure of the Constitution',
I~ the conduct of any judge in his judicial capacity is
assailed in Parliament, it will undermine the independence
of the judiciary. It violates Article 116 of the
Constitution which prohibits any such interference with the
judiciary, The only occasion when the conduct of the
judiciary can be discussed in Parliament is when a
substantive motion for the removal of a judge of the Supreme
Court or Court of Appeal has been presented in terms of
Article 107, The standing orders of Parliament state that
the conduct inter alia of judges cannot be raised except
upon a substantive motion. This implies that under the
Constitution, the conduct of judges can be raised. The only
provision under which the conduct of judges can be so raised
is under Article 107 of the Constitution. Aceording1y it is
submitted that a substantive motion for the discussion of
the conduct of a judge except in respect of his removal is
ultra vires the Constitution.
19. In India the independence of the judiciary is not
emphasised in the Constitution. Neither is the separation of
powers which is necessary for the independence of the
judiciary set out as we have done in our Constitution. But
as in England it is implicit in the Indian Constitution.
20. Under the provisions of the Indian Constitution
however Parliament or State Legislatures cannot discuss the
conduct of judges except when a resolution for the removal
of a judge is debated.
21. Article 121 of the Indian Constitution provides -
"No discussion shall take place in Parliament with
respect to the conduct of any judge of the Supreme Court
or of a High Court in the discharge of his duties except
upon a motion for presenting an address to the President
for the remova1 of the judge"
22. Article 211 of the Indian Constitution provides that
"no discussion shall take place in the 1egislature of a
State with respect to the conduct of any judge of the
Supreme Court or of a High Court judge in the
discharge of their duties.
23. So far as the minor
courts in India arc concerned they are und~ the supervisory
jurisdiction of the High Courts (Articles 235, 277). If
there is any alleged misconduct by the Lower Courts the High
Courts will look into the matter and take appropriate
action. If such alleged misconduct is made a subject of
discussion in the legislature It will undermine the
independence of the minor judiciary. Same the case with
regard to the judges of the Supreme Court and High Courts.
but in the east of their removal the legislature has a part
to play in India even as our Parliament. has a part to play
in Sri Lanka.
24. In the Indian Constitution Articles 121 and 211 have
been put in as a matter of caution. In our case no such
Articles are necessary as the preamble and the body of the
Constitution provide for the separation of powers and the
independence o( the judiciary, and Article 116 prohibits all
interference or attempted interference with the judiciary.
25. In England the conduct of judges of the Supreme
Courts is by convention never the subject of criticism
in Parliament (see C. K. Allen "Law & Orders" page 4.)
26. As for the judges of the inferior Courts if there is
any misconduct by them the matter is brought to the notice
of the Lord Chancellor by the complainant. The complainant
may if he chooses bring the matter to the notice of his M.P.
who will in turn take it up with the Lord Chancellor.
27. The resolution embodying the Address to H.E. the
President recites first the passages in the speech made by
Mr. N. D. M. Samarakoon, Q.C., Chief Justice, on 14th March
1984 at the Annual Awards Ceremony of the Sinnathurai
28. Then there is a recital which reads as follows -"And
whereas a Select Committee of Parliament was appointed to
inquire and report to Parliament on-
(1) whether any or all of the statements attributed
to the Hon. N. D. M. Samarakoon as reported in the Press
were made by him at the Annual Awards Ceremony of the
Sinnathurai Commercial Tutory held at the Sea View
Hotel, Kollupitiva on Wednesday, the 14th March, 1984.
(2) if such statements were made, whether such
(i) constitute improper conduct or conduct
unbecoming of the holder of the office of Chief Justice
(ii) refer to matters of a political nature or refer
to matters involving political issues or controversies
and matters which could form the subject of proceedings
before him or other judicial personnel
the dispensation of impartial justice;
(iv) afford grounds for allegations of bias by
parties to proceedings; and
(v) tend to bring the entire Supreme Court and
particularly the office of the Chief Justice into
(3) whether the Committee is of opinion that these
circumstances warrant any further action and, if so, to
recommend what action be taken."
29. Then there is a recital of the findings of the Select
Committee. This recital in substance states that the Select
(a) that all of the statements attributed to the Hon. N.
D. M. Samarakoon, Chief Justice, were made by him at the
(b) that some of the statements specified by the
Committee could be considered as constituting improper
conduct or conduct unbecoming of the holder of the office of
(c) that some of the statements were matters involving
political issues or controversies and matters which could
form the subject of proceedings before the Chief Justice or
other judicial personnel
(d) that the Committee finds it difficult to accept that
some of those statements made by the holder of the highest
judicial office in the country could make it possible to
expect dispensation of impartial justice; and
(e) that although some of the statements indicated by
the Committee may not bring the entire Supreme Court into
disrepute, they are not befitting the holder .of the office
of Chief Justice.
30. Then the recital says that the Committee is of
opinion and wish to recommend to the House that appropriate
action be taken in view of the findings of the Committee,
the Committee being of opinion that circumstances warrant
31. There were nine members of the said Select
Committee, seven Government Party members and two Opposition
members. The recital in the resolution contains the majority
view of all the seven members of the Government Party. It
does not contain the dissent of the two members of the
Opposition parties who completely exonerated the Chief
Justice arid recommended that no further action to taken.
32. It is submitted that the entire proceedings both in
Parliament and before the Select Committee are for the
reasons given earlier unlawful and unconstitutional.
Par1iamen~ or a Select Committee of Parliament cannot
discuss the conduct of any judge whether on or oft the Bench
if such discussion will interfere with the due
admini~4ration of justice or bring the administration of
justice into contempt or disrepute and/or affect the
independence of the judiciary.
33. The only situation in which tinder our Constitution
the conduct of a judge can be discussed is when a motion for
an Address for the removal of a judge of the superior Courts
is presented to Parliament. Even in such a case the
procedure devised must be such as to keep such a resolution
secret until after the appropriate judicial tribunal has
found the judge guilty of misbehaviour or incapacity.
34. There is however a precedent for what the Select
Committee has done as earlier a similar Select Committee was
appointed to investigate into the allegations made by Mr K.
C. E. de Alwis one of the members of the Special
Presidential Commission against two of the three judges of
the Supreme Court who. heard a writ application against him.
35. The three judges who heard the application were the
Chief Justice Wimalaratne, J. and Cohn Thome J. They
delivered three separate judgments on the 18th of October,
1982, two days before the date fixed for the Presidential
Elections. The Chief ,Justice issued a Writ of Prohibition
forbidding Mr. K. C. E. de Silva from taking any further
part in the investigation of the conduct of Mr. Fowzie which
was a matter that was pending before the Special
Presidential Commission at that time.
36. Justice Wima]aratne and Justice Cohn Theme disagreed
with the views of the Chief Justice. They granted the prayer
of the petitioner to issue a writ of quo warranto declaring
that Mr. K. C. E. de Alwis, the 1st respondent, had become
unable to act and was disentitled to hold the office of and
to function as a member of the Special Presidential
Commission of Inquiry.
37. After the above judgments were delivered Mr. K. C.
E. de Alwis addressed a petition to H.E. the President in
which he alleged, inter alia,
(a) that there was bias on the part of Justice
Wimalaratne and Justice Percy Colin Thome which prevented
them from making a proper assessment of the facts before
them and pre-set their minds to arrive at an adverse finding
(b) that although the State had an interest in the
matter of the application rind the Attorney-General sought
audience before Court to guide the judges en the issue
whether writs of quo warranto and prohibition lie and how
the grant of writs affects the Commission issued by the
President the judges summarily rejected the application to
assist the Court.
Mr. K. C. E. do Alwis later gave a third ground of
complaint, namely that some of the pleadings filed by or on.
behalf of the petitioner were prepared in the Chambers of
one of the Judges, Percy Cohn Thome J.
38. As a result of the petition addressed to His
Excellency the President by Mr. K. C. F. de Alwis, the
Cabinet decided to move Parliament to appoint a Select
Committee to inquire into and report on the matter raised by
Mr. de Alwis. The motion to set up the Select Committee was
moved by Hon. Gamini Dissanayake, Minister of Lands and Land
Development and Minister of Mahaweli Development and passed
by Parliament on the 8~h of March. 1984 and a Select
Committee of seven members all of whom except one were
members of the Government Party were nominated by Mr.
39.The terms of reference of the Select Committee stated
that the Select Committee was appointed to inquire into and
report to Parliament, inter ala, in respect of the following
(i) Whether there were any circumstances which rendered
it improper for Justice D. Wimalaratne and/or Justice Percy
Colin Thome to have agreed to hear and determine the
application (S.C. Ref. No. 1 of 1982) filed by Mr. Felix R.
D. Bandaranaike anti whether the decision of either of them
was influenced by any improper consideration;
(ii) whether any pleadings filed by or on behalf of the
petitioner the said Felix P. D. Bandaranaike in the said
proceedings were prepared in the Chambers of Justice Percy
Colin Thome, one of the Judges who heard the said
application and, if so, the circumstances in which it came
to be so prepared;
(iii) whether the failure of the Judges to afford an
opportunity to the Attorney- General to address on behalf of
the State was justified, particularly having regard to-
(i) the fact that the Attorney-General made an
application to be heard in the said proceedings
(ii) the Order made by the Court on 20th September, 1982
on the said application by the Attorney-General refusing to
hear him and stating that the Attorney-General would be
heard if it became necessary in the course of the
(iii) the fact that the decision of the majority of the
Judges of the-Court materially affected the operation of the
Warrant issued by Hi; Excellency the President.
(iv) Circumstances in which-
(i) the judgment was
delivered on 18th October, 1982. two days before the date of
the Presidential Elections; and
(ii) the judgment was delivered by a bench consisting of
one of the respondents to the application.
(v) whether there was any other impropriety in the
conduct of or in relation to the said proceedings."
40. The Committee commenced its deliberations on 25th
March, 1933 and held 21 meetings on several dates spread
over about 15 months the last sitting being on the 5th of
41. The Select Committee recorded the evidence of the
Chief Justice as well as that of Justices Sharvananda.
Wimalaratne, Percy Colin Theme and J. F. A. Soza, all of
whom were at the time functioning as judges of the Supreme
Court and of Mr. J. G.T. Wceraratne who was a retired judge
of the Supreme Court. The Committee also recorded the
evidence of Mr. P. Navaratnarajah, Q C., who appeared as
Senior Counsel for Mr. K. C. E. de Silva and also that of
the Attorney-General and of the acting Registrar of the
Supreme Court. It also recorded the evidence of several
other witnesses including Mr. K. C. E. de Alwis.
42. Justice Wimalaratne was represented by lawyers. Both
Justice Wimalaratne and Justice Percy Cohn Thome in addition
to giving evidence made written submissions also to the
43. The above facts appear in Parliamentary Series No.
62 of the First Parliament of the Democratic Socialist
Republic of Sri Lanka (Fourth Session).
44. It is submitted that the entirety of these
proceedings in Parliament under Select Committee in respect
of Mr. K. C. E. de Alwis complaint is unconstitutional.
45. Mr. K. C. E. de Alwis was dissatisfied with the orders
of the Supreme Court on the ground (a) that two of the three
judges who heard this case were biased against him; (b) that
some of the pleadings filed by the petitioner were prepared
In the Chambers of one of the two judges and (c) that the
Attorney General was refused a hearing.
46. Under the Constitution, the only way in which Mr. K.
C. E. de Alwis could have obtained relief was to invoke the
jurisdiction of the Supreme Court itself to revise the
earlier order on the grounds urged by him or to take
whatever remedy was available to him in the Court.
47 When judgments and orders are made by the Courts any
one can criticise the orders or judgments provided no
improper motives are attributed to the judges.
But the Constitution has not set up any authority
outside the judiciary to summon any judge of any Court from
the minor Court to the Supreme Court and to investigate the
circumstances under which the judge gave his order or
judgment whether he was influenced by bias and the propriety
or otherwise of these proceedings, etc., and to make a
report of their findings.
48 Parliament has not been vested by the Constitution to
interfere with the administration of justice which is a
matter entirely for the Courts.
49. There is a distinct separation of powers in the Sri
Lankan Constitution and Parliament in probing the conduct of
judges in respect of judicial proceedings is interfering in
the administration of justice and trespassing on a field
which the Constitution has reserved for the judiciary.
50. Besides such proceedings undermine the independence of
the judiciary and shake the confidence of the people in the
due administration of justice. In Mr. K. C. E. de Alwis case
while Parliament was investigating into the correctness or
otherwise of the order made by these two judges for nearly
fifteen months these two judges were sitting in the Supreme
Court and presiding not only disputes between subject and
subject but also between the subject and the State in
respect of several important matters including complaints in
respect of the violation of fundamental rights.
51. Under these circumstances, what confidence would
people have reposed in the orders and judgments of these two
judges when their own judicial integrity was in doubt and
the matter was being probed by a Select Committee of
52. The proceedings of Parliament and the Select
Committee in Mr. K. C. E. de Alwis' case is ultra vires the
Constitution, as Parliament cannot discuss the conduct of
judges except on a motion for an address for the removal of
a judge of the superior Court under Article 107 of the
53. It is hardly necessary to state that the findings of
this Select Committee which is ultra vires the Constitution
is invalid and not worth anything.
54. Accordingly it is submitted that this unfortunate
precedent should not have been followed in respect of the
speech made by the Chief Justice.
55. The proceedings of the Select Committee appointed to
report on the speech made by the Chief Justice and its
findings are ultra vires the Constitution and are of no
value and should not be considered by this Select Committee
appointed under Standing Order 78A notwithstanding the fact
that the recital to the resolution sets out those findings.