| by Nihal Jayawickrama
( December 30, 2012, Colombo, Sri Lanka Guardian) The current debate on
the parliamentary resolution to impeach the Chief Justice appears to be
clouded, and sometimes distorted, by several misconceptions.
Is Parliament above the law?
It is believed in some quarters that Members of Parliament are above the
law and are not subject to the jurisdiction of the Courts. This belief is
entirely misconceived. It is probably due to a provision that was included in
the 1972 Constitution which read as follows:
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The desire to humiliate a lawyer with no previous judicial experience who had been elevated to the highest judicial office, and had then become critical of his benefactor, obviously led Parliament to adopt the swiftest procedure in the shortest possible time in order to achieve that purpose.
"30. No court or other institution administering justice shall have
power or jurisdiction in respect of the proceedings of the National State
Assembly or of anything done, purported to be done, or omitted to be done by or
in the National State Assembly."
That provision was included in the context of the National State
Assembly being "the supreme instrument of state power" under the 1972
Constitution. There is no provision similar to Article 30 in the present
Constitution. Under the present Constitution, Parliament does not enjoy that
status.
Is the Anura Bandaranaike ruling relevant today?
The ruling given by the late Speaker Anura Bandaranaike on 20 June 2001
is now being recited, almost like a mantra that would shield Members of
Parliament from any intrusion by the Judiciary. On that occasion, the Speaker
had received notice of a resolution signed by the requisite number of Members
of Parliament from the ranks of the Opposition. They sought the appointment of
a Select Committee of Parliament to inquire into a complaint of misbehaviour
against the then Chief Justice Sarath Silva. The Supreme Court made an interim
order that sought to prevent the Speaker from dealing with that resolution
until the Court had heard and determined a fundamental rights application filed
before it. Speaker Bandaranaike ruled that the Supreme Court had no
jurisdiction to issue the interim order, and therefore he had no legal
obligation to comply with it. He relied on section 3 of the Parliament (Powers
and Privileges) Act of 1953 which stated that:
"There shall be freedom of speech, debate and proceeding in
Parliament and such freedom of speech, debate or proceedings shall not be
liable to be impeached or questioned in any court or place out of
Parliament".
It was Anura Bandaranaike’s view that the Speaker was obliged to appoint
a Select Committee upon receiving a duly signed resolution, and that that was a
"proceeding" of Parliament which could not be questioned in any
court. In fact, section 3 protects only the "freedom" of speech,
debate and proceeding. He was probably correct in reaching that conclusion,
since the regulation of parliamentary business is a matter within the Speaker’s
legitimate province. A tribunal with power to give a binding and authoritative
decision had not yet been established. The interim order of the Supreme Court
was, therefore, perhaps premature.
The issue today is one that is completely different to that dealt with
by Speaker Anura Bandaranaike. There is now before the Court of Appeal an
application by the Chief Justice for a writ of certiorari to quash the
"decision" of the Select Committee. These findings affect her legal
rights. The Constitution has vested the Court of Appeal with "full power
and authority" to inspect and examine the records of any institution or
person, and to grant and issue an order in the nature of a writ of certiorari
quashing any decision that is contrary to law. A decision may be contrary to
law for a variety of reasons: the decision-making body may have suffered from
bias; the principles of natural justice may not have been observed, the
decision-making body may have misdirected itself on the law or on the facts.
Every individual living in Sri Lanka has the right to seek judicial review of
any decision that adversely affects, or is detrimental to, him or her.
Is the Select Committee report subject to judicial
review?
In 2002, the Government of Sri Lanka, acknowledged the existence of the
constitutional right to seek judicial review of the findings of a Select
Committee. It conveyed the following assurance in writing to the Human Rights
Committee established under the International Covenant on Civil and Political
Rights. That body had expressed concern about Standing Order 78A which enabled
a Select Committee to inquire into the conduct of a Judge:
"Non-adherence to the rules of natural justice by the inquiring
committee would attract judicial review. Indeed, nowhere in the relevant
constitutional provisions or the standing orders seeks to exclude judicial
review of the decision of the inquiring committee. Thus, it is envisaged that
if the inquiring committee were to misdirect itself in law or breaches the
rules of natural justice, its decisions could be subject to judicial
review." (sic)
That was a solemn, official, and authoritative declaration by the
Government of Sri Lanka that the report of a Select Committee appointed under
Standing Order 78A is subject to judicial review by the Court of Appeal. It was
an assurance of Sri Lanka’s compliance with Article 14 of the Covenant which
guarantees that "everyone shall be entitled to a fair and public hearing
by a competent, independent and impartial tribunal established by law".
Why did Parliament provide for trial by select
committee?
On 14 March 1984, Chief Justice Samarakone, who was due to retire in
October of that year after five years in office, made a wholly inappropriate
speech at a private tutory. He was critical of the Government and the
President. The Government’s response was immediate. It decided to bring him
before Parliament, but then discovered that the procedure for doing so had not
been prescribed, as required by the Constitution. Accordingly, two steps were
taken simultaneously. On 3 April 1984, Parliament resolved to appoint a Select
Committee under Standing Order 78, to inquire into and report whether the Chief
Justice had made the statements attributed to him in the press, and if so, to
recommend what action should be taken. That was a legitimate exercise, since
Parliament has the power to establish a select committee to inquire into and
report on any matter. It was a fact-finding exercise.
On 4 April 1984, Parliament added a new Standing Order 78A, which
empowered the Speaker to appoint a Select Committee for the purpose of
investigating and reporting on an allegation of misbehaviour or incapacity
against a Judge of a superior court. To give itself the power, through a
standing order, to conduct what is virtually the trial of an offence, was
clearly outside the powers of Parliament. Even under the Parliament (Powers and
Privileges) Act, Parliament may directly deal with only very trivial matters,
such as disrespectful conduct within the precincts of Parliament, or creating a
disturbance when Parliament is sitting. The maximum punishment that Parliament
may impose, in the exercise of its "judicial power", is admonition or
removal from its precincts. Many breaches of parliamentary privilege may only
be tried in the Supreme Court.
The first Select Committee, chaired by Prime Minister Premadasa, held
six meetings between 17 April and 20 July 1984. The Chief Justice declined to
attend in protest against the new Standing Order 78A, but did not deny the
statements attributed to him. The Committee reported on 9 August 1984 that the
impugned speech was "not befitting the holder of the office of Chief
Justice", and recommended that appropriate action be considered.
On 5 September 1984, a resolution signed by 57 Members of Parliament,
requesting the presentation of an address for the removal of Chief Justice
Samarakone, was placed on the Order Paper. On the following day, the Speaker,
acting under Standing Order 78A, appointed a Select Committee chaired by
Minister Lalith Athulathmudali. At its first meeting, the three Opposition
Members, Sarath Muttetuwegama, Anura Bandaranaike and Dinesh Gunawardena raised
a preliminary objection. They submitted that the Select Committee could not
determine "proved incapacity or misbehaviour" unless it had been
judicially proved. The Select Committee held 14 meetings between 11 September
and 27 November 1984, during all of which Mr. S. Nadesan QC and his team of
lawyers appearing for the Chief Justice argued that the Select Committee was an
unconstitutional body. Before the Committee concluded its sittings, the Chief
Justice reached the mandatory retirement age. In its report to Parliament, the
Committee concluded that the Chief Justice was not guilty of misbehaviour.
The desire to humiliate a lawyer with no previous judicial experience
who had been elevated to the highest judicial office, and had then become
critical of his benefactor, obviously led Parliament to adopt the swiftest
procedure in the shortest possible time in order to achieve that purpose.
Resorting to legislation, and establishing a special tribunal, as is the
practice elsewhere in the democratic world, could not have been accomplished
before Chief Justice Samarakone reached his mandatory retiring age.
Can the Select Committee ignore the court notice?
The Deputy Speaker of Parliament was reported to have stated that the
members of the Select Committee, who have been informed by Court of the filing
of an application for judicial review, will not respond to it. Indeed, they may
choose not to respond, either in person or through counsel. Every citizen has
the right not to seek to justify his or her actions in a court of law. However,
if the Court were to quash the findings of the Select Committee, that would be
a binding and authoritative judgment on the matter. If Parliament were to
ignore that judgment and proceed regardless to debate the resolution for the removal
of the Chief Justice, a very serious constitutional crisis will arise. It is a
conflict that will affect the legitimacy of our entire judicial system.
The stability of our country rests upon the strength of the three great
pillars of the state – the Legislature, the Executive and the Judiciary. These
pillars are interdependent. Together, they deliver the checks and the balances,
and the accountability factor that is so vital to the health of the state. If
one pillar weakens, especially because of a concerted attack by another, the
entire structure will surely collapse. Prorogation, or taking one step back, as
has been suggested by some, will only serve to prolong this utterly
self-destructive conflict. In fact, prorogation, under our present Constitution
does not result in the lapse of pending matters; such matters may be proceeded
with at the next session. It is time for this conflict to end.
It will be wise for those who now exercise state power to reflect on how
judicial decisions that caused embarrassment to governments were dealt with in
the past. The response to the judgment in the 1962 Coup Trial, and to the
verdicts in the 1966 Coup Trial, are examples that come to mind. The political
maturity with which such adverse judgments were received was testimony to the
desire of those governments to respect and to keep alive the Rule of Law. Under
our Constitution, and in our system of governance, the Judiciary is the final
arbiter. That must surely be accepted and respected.
What is the international impact of this exercise?
The state regulated media has attempted during the past month to prevent
the Sri Lankan public from learning of the extremely adverse international
reaction to the impeachment exercise. Astonishment has been expressed, not only
at a process in which the accusers and the judges were all members of a
government parliamentary group, but also that the ``judges" have thereafter
made public statements from political platforms defending their
"judgment".
Critical statements made in international forums, national legislatures
and by governments, and by professional organizations globally, have not been
shared with the Sri Lankan public. Of particular significance is the reaction
of Commonwealth institutions. Sri Lanka is expected to host the next Conference
of Commonwealth Heads of Government in 2013. When it assumes the chairmanship
of that body, Sri Lanka will become the custodian for the next two years of
Commonwealth values and principles. Among these principles is the following:
"In cases where a judge is at risk of removal, the judge must have
the right to be fully informed of the charges, to be represented at a hearing,
to make a full defence and to be judged by an independent and impartial
tribunal."
It is now been asked, in voices that are becoming louder and more
strident, whether the Government of Sri Lanka can be entrusted with that
responsibility?
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