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The recent Supreme Court interim order to the Secretary, Ministry of Finance preventing him from withholding allocated funds in the 2023 Budget for the local government polls, has been interpreted as a ‘breach of the privileges of Parliament’ by some enthusiastic worthies in the Government.

Constitutional parameters and the public interest

The fact that the Sri Lanka Parliament has all powers vested in it over public finance has precisely nothing to do with the matter, let us be quite clear. Sections 148 to 150 of the Constitution deals with control of the House over public money, the Consolidated Fund and withdrawal of monies from the Fund. However the point here is that the Court was careful to restrict itself to the allocations already set aside for the local government polls in the Budget.

It may perchance have been a different matter if such funds had not been allocated in the first instance. But that is not the case here. We are not talking hypothetically, of an ‘activist’ Court swinging wide with the judicial hammer, to compel Parliament to devote public funds for a purpose not within the contemplation of the House.

In fact, for those apparently trained in the law but woefully unaware of the same, the Indian Supreme Court has done exactly that, in decades of highly praised jurisprudence where the Court has called the Centre to account for not reserving sufficient public funds for public interest pursuits such as improving conditions in jails or maintaining good quality of service in government hospitals.

The Indian experiment in safeguarding the Constitution

The Indian Supreme Court has gone so far as to appoint committees under its purview to examine these situations and recommend as to how public funds can most usefully be spent for the public purpose. It has then issued directives to the Government to carry out those recommendations. There have been no howls of outrage in that jurisdiction, that the Court is exceeding its authority.

In fact, the contrary is the case. The Indian experiment in public interest litigation with the Court as an astute partner in improving the lot of the poor and marginalised in that country, has been acclaimed far and wide, as exemplary. Even so, what we are talking of in the Sri Lankan context is a factual situation as far removed from such ‘activism’ so to speak.

What the Court did, was eminently conservative, so to speak. The Bench merely declared that what Parliament had sent aside for a particular purpose, must be used for that purpose. Again, the fact that the Elections Commission is accountable to Parliament and that the matter of financial difficulties in holding the polls has been placed before the House is not pertinent to that question.

What is this ‘privilege’ of parliamentarians?

The notion that privilege is invoked here, calls for a sober discussion on the relevant issues. This is reminiscent of when the late Minister Jeyaraj Fernandopulle stood up in Parliament to condemn the Supreme Court a few decades ago over a particular decision that excited his anger. Erskine May’s classic definition of parliamentary privilege reads as the “sum of the peculiar rights enjoyed by (the) House collectively and by members individually in order to enable the proper carrying out of constitutional functions.” (Erskine May’s Parliamentary Practice, 22nd Ed, London Butterworths, 1997).

There have been instances where tussles have occurred between the courts and Parliament, (two fittingly gargantuan institutions). At least on one notable occasion, parliamentarians won the day over judges (see Hewamanne v Manik de Silva & Another (1983, 1 SLR, 1).The veneration traditionally accorded to parliamentary privilege came under critical judicial scrutiny in De Silva v Jeyaraj Fernandopulle and Others (1996, 1 SLR, 22).

This was when a majority judgement of the Supreme Court ruled that remarks made by a member of parliament in the House could be utilised against him to contradict sworn statements made in an affidavit to court. Here, the Hansard was used to test the credibility of an affidavit of a government Minister submitted to court, a majority of the Court ultimately holding against him in a fundamental rights petition brought against the Minister. Ironically, strikingly similar principles apply in the determination of when contempt of court and breach of parliamentary privilege could be found.

Balancing the scales where privilege is in issue

On one hand, we have the preservation of fundamental freedoms so important to individual and collective life, (which marks us as a still functioning democracy). On the other, we have the safeguarding of “those peculiar rights enjoyed by parliamentarians”, (at least theoretically). In one case, this is to enable Parliament to properly carry out their constitutional functions. On the other, the scales balance the sanctity accorded to the institution of the judiciary and those ‘peculiar rights’ of elected representatives.

One of the most remarkable instances where a serious debate arose over the extent and reach of privilege arose immediately after an 1978 amendment was passed to the Parliamentary (Powers and Privileges) Act No 21 of 1953. This gave Parliament the concurrent power with the Supreme Court to punish in respect of the more serious breaches of privilege specified in part A of the schedule to the Act. The whole House sitting as a Court, tried the offenders and punished the accused journalists of a breach of privilege in part A.

Following this, the late Mr S. Nadesan QC, (one of Sri Lanka’s most courageous civil rights lawyers), wrote a series of articles that were serialised in a newspaper relating to the powers and privileges of Parliament. He commented on the desirability or otherwise of the punitive action taken by the legislature consequent to 1978. These criticisms were raised in Parliament as an issue of privilege and discussed by a Parliamentary Select Committee and referred to the Supreme Court.

Singular risk in ‘bizarre’ interpretations

A five judge Bench held that the articles did not constitute a breach of privilege of Parliament. However, the Court failed to set out the precise parameters of what constitutes a breach of privilege. In 1994, the Government repealed the 1978 amendment giving back the Supreme Court exclusive jurisdiction in respect of breaches of privilege in part A of the schedule.

It is conceded that this Presidency, if not this Government, is desperate beyond all reason to prevent the holding of the local government polls. But if this claim that the interim order of the Court should be read as a ‘privilege’ issue is to be maintained, a danger surely arises that each and every judgment of the Court that the executive or the legislature takes exception to, can be read as a ‘breach’ thereof.

The adverse impact of this will go over and beyond a particular factual circumstance in which lawmakers may feel justified in what they are claiming. That includes a bizarre argument advanced by policy propagandists of this Presidency, that a struggling Elections Commission has overreached its authority by undertaking to Court that the elections will be held.

Between the devil and the deep blue sea

The Elections Commission is patently attempting to manage an unenviable predicament between the devil (the political establishment straining every sinew to prevent the holding of polls) and the deep blue sea (an angry electorate). This is notwithstanding the fact that the proponents of such arguments mask their ‘concern’ under the cover of ‘safeguarding’ the independence of oversight institutions.

These attempts are, of course, easy to read as none too subtle attempts by Government propagandists to intimidate constitutional and statutory institutions. Even so, the nakedly unabashed nature of these attempts are shocking, to say the least. To cast the Elections Commission as the villain in this drama is unhelpful for the cause of governance in Sri Lanka.

That much is clear.