Photo from MSN News
Groundviews interviewed Luwie Ganeshathasan, a Researcher in the Legal and Constitutional Unit of the Centre for Policy Alternatives (the institutional home of this website), on several key issues arising from the impeachment proceedings against the current Chief Justice of Sri Lanka, Shirani Bandaranayake.
Is there provision in the constitution to impeach the CJ?
Yes. The Constitution in Article 107 provides for the impeachment of not only the Chief Justice, but any judge of the Supreme Court or the Court of Appeal.
Has it happened in the past, how and why?
Yes, on several occasions, attempts have been made to impeach judges of the superior courts.
In 1983, Justices Wimalaratne and Colin-Thome of the Supreme Court were brought before a Parliamentary Select Committee based on an allegation made by a person involved in a case heard by the Judges. The Select Committee, while not upholding the personal allegations against the judges, expressed reservations about the verdict and faulted the judges for not allowing the Attorney General to address them on behalf of the State.
In 1984, impeachment proceedings were instituted against Neville Samarakoon, the then Chief Justice, on the allegation that he had made a public speech which was critical of the then President J.R. Jayewardene. A Parliamentary Select Committee (PSC) chaired by Ranasinghe Premadasa first examined the allegation. The majority decision of this committee was unfavourable to the Chief Justice. Subsequently a resolution requesting the removal of the Chief Justice was tabled in Parliament. It is only subsequent to this that Parliament promulgated Standing Order 78A (which features prominently in the current controversy). As a result, a second Parliamentary Select Committee was appointed.
S. Nadesan Q.C., who appeared on behalf of Chief Justice Samarakoon, argued that inquiring into allegations against the Chief Justice was nothing less than the exercise of judicial power. As per the Constitution, judicial power can be exercised directly by Parliament only in relation to parliamentary privileges (which was not relevant to that case). According to the Constitution, in all other instances, Parliament can exercise judicial power only through courts and tribunals established by law.
This PSC’s decision was also split along party lines, the majority opinion (of the Members of the UNP) was that the Chief Justice’s speech, while not amounting to “proved misbehaviour”, constituted “a serious breach of convention and had thereby imperilled the independence of the judiciary and undermined the confidence of the public in the judiciary”. The minority opinion stated that, “The signatories to this statement [Anura Bandaranaike, Sarath Muttetuwegama and Dinesh Gunawardena (the Chief Government Whip at present)] while conceding that Mr. Nadesan’s argument have considerable cogency ─ are not in a position to come to a definite conclusion on this matter. We would urge that H.E. the President could refer this matter to the Supreme Court for an authoritative opinion thereon – under Article 129(1) of the Constitution.”
In June 2001, an impeachment motion against Chief Justice Sarath N. Silva was tabled in Parliament with the signatures of 77 members of Parliament. The then Speaker, Anura Bandaranaike, made a special ruling in relation to the restraining order against any further parliamentary proceedings on this matter, issued by the Supreme Court in two fundamental rights applications filed in the court (SC FR 297/2001 and SC FR 298/2001). Subsequent to this ruling, the motion calling for a resolution of impeachment was placed on the order paper of Parliament. However, because of the political instability that ensued in the following months no further steps in the impeachment process was taken.
Why has the impeachment of the present CJ run into controversy?
Firstly because the process set out in Standing Order 78A, which lays down the current internal parliamentary procedure for impeachment of judges, is flawed. This procedure has been criticised from its inception in 1984 every time an impeachment was attempted. As stated above, in 1984 Mr S. Nadesan Q.C. took up the position that the exercise of judicial power by the PSC was unconstitutional and in 2001 the petitioners in SC FR 297/2001 and SC FR 298/2001 took up a similar position. Additionally, some of the other short comings of Standing Order 78A are:
- There is a clear conflict of interest when the members submitting the impeachment motion containing the allegations of misbehaviour and the members of the PSC investigating said charges are from the same political party. This is because, unlike in countries like the United States of America where Senators can vote on their individual convictions, in Sri Lanka Members of Parliament cannot or do not vote contrary to their party line.
- The Standing Order does not specify the procedure that should be adopted during the investigation of the alleged misconduct.
- The Standing Order does not describe the burden of proof necessary to establish “proved misbehaviour”; on the contrary, Standing Order 78A(5) seems to suggest that the burden is on the judge to disprove the allegations.
Secondly, the PSC which was appointed by the Speaker on 14th November 2012 was problematic because of the way in which its deliberations were conducted. Allegations against the this PSC included personal bias of some PSC members against the Chief Justice, not informing the Chief Justice or her lawyers of the procedure to be adopted, not providing the Chief Justice adequate time to respond to the charges, and treating the Chief Justice in a derogatory manner. From the outset it was clear that some allegations against the Chief Justice were deeply flawed, which created apprehensions about the entire process. These apprehensions were further fuelled by the hurried manner in which the proceedings of the PSC were terminated and the report released overnight.
Thirdly, the context in which the impeachment was instituted was also problematic because it was on the back of several Supreme Court decisions delivered by the Chief Justice, which were unfavourable to the government. Furthermore, prior to the impeachment of the Chief Justice, the Judicial Services Commission (JSC), of which the Chief Justice is the chairperson by virtue of her office, made a public statement alleging that there were attempts to interfere with its functions. Shortly thereafter, the Secretary of the JSC was attacked by a group of unidentified persons. The above context leads to the strong suspicion that the impeachment process was part of a larger plan aimed at subduing and intimidating the Judiciary.
What are the key judgments by the Courts that have been delivered on and against the impeachment process (incl. on the PSC)?
Several petitioners filed writ applications in the Court of Appeal seeking to prohibit the PSC from continuing with its proceedings. All the applications were heard by a bench of three Judges of the Court of Appeal on 20th November 2012, and the Court decided that in order to proceed with the applications it needed a constitutional interpretation. As according to Article 125, the Supreme Court has the “sole and exclusive” jurisdiction to interpret the constitution, the matter was referred to the Supreme Court.
The Supreme Court heard Counsel (SC Ref. 3 of 2012 to SC Ref. 9 of 2012) for the petitioners and also Counsel for all parties who sought to intervene in the reference. Furthermore, Court also heard submissions made by the Attorney General. The decision of the Supreme Court was sent to the Court of Appeal on 1st January 2013, and the Court of Appeal’s decision was delivered on 3rd January. In its decision the Supreme Court held that under Article 107(3) of the Constitution, investigation and proof of charges brought against a Judge in an impeachment motion must be exercised by a body established by an Act of Parliament, and not by one established by Standing Orders of Parliament. The Court held that such Act of Parliament must also provide for matters concerning the mode of proof, burden of proof and standard of proof relating to the charges in an impeachment motion, and for the right of the Judge to appear and be heard in person or by representative.
On 19th December 2012, the Chief Justice also filed a writ application [C.A. (Writ) Application 411/2012] in the Court of Appeal asking the court to issue a Writ of Certiorari quashing the conclusions and recommendations in the PSC report, and a Writ of Prohibition , prohibiting the Speaker from acting on or taking any further steps based on the PSC report. In its decision the Court of Appeal held that in light of the interpretation of the Supreme Court (SC Ref. 3 of 2012 to SC Ref. 9 of 2012), that as a PSC appointed under Standing Order 78A has no legal power to make a finding adversely affecting the legal rights of a Judge, it has no alternative but to issue a writ of certiorari quashing the PSC report.
What is the basis for Parliament asserting supremacy over and disregarding judgments by the courts?
One argument advanced by the Attorney General during the hearing of the writ application filed by the Chief Justice was that Article 4 (c) and Article 107 do not allow for the Court of Appeal to issue a writ in terms of Article 140 of the Constitution in matters relating to the impeachment of judges.
But as the Court of Appeal itself pointed out in its judgment, if the Constitution wanted to prohibit the Courts right to exercise jurisdiction it would have done so expressly. In fact this has been done in relation to Article 80 (3), Article 81 and Article 124.
The other argument made by most government MPs is that in terms of the ruling given by Anura Bandaranaike, the decisions of the Supreme Court and Court of Appeal are not binding on Parliament.
A cursory examination of this ruling would reveal that it is misconceived in law. The ruling is based on the assumption that the powers of Parliament are unrestricted, as in the case of the Parliament of the United Kingdom where there is no written constitution. This is not an accurate reflection of the present Sri Lankan constitutional order. No organ of the government is considered supreme (as in the case of the UK Parliament) or even the supreme instrument of state power (as was the case in the 1972 Constitution). According to Article 4 of the 1978 Constitution, executive power, legislative power and judicial power are only some ways in which the sovereignty of the people is exercised. There is no specific provision in the constitution which states that Parliament has unrestricted powers, and indeed the entire tenor of the constitution is based on the implicit supremacy of the constitution, and not of any particular organ or institution created and established by it.
The assertion by Speaker Bandaranaike seems to be that Section 3 of the Powers and Privileges of Parliament Act No. 21 of 1953 (as amended), would preclude the Supreme Court (and any other court) from inquiring into the validity of any proceedings within Parliament. He uses Article 168 (1) and Article 67 to buttress his argument.
The Court of Appeal in its determination in [C.A (writ) Application 411/2012] expressly deals with the question as to why the jurisdiction of the Court is not ousted by any ouster clause in any law (See page 6-8 of judgment) even in the face of Article 168 (1).
The same argument cannot be made in the case of Article 67, as it does not have the rider that the law shall apply only so far as the matter provided for by the law is not expressly provided for in the Constitution. However this does not mean that when Parliament acts illegally the jurisdiction of the court is still ousted. If this were so, the phrase “any act done under the authority of Parliament and within its legal powers” in section 6 of the Powers and privileges of Parliament Act would be useless. This necessarily means that a person would be liable for the acts done outside the legal powers of Parliament and would only make sense if one could first inquire into as to whether Parliament had the legal power to authorise the act done or not. It is in this respect that the interpretation given by the Supreme Court becomes important, in that it decides whether Parliament was exercising a power given to it by the Constitution in the way prescribed by the Constitution.
The argument that Parliament is supreme because it consists of the elected representatives of the people (as opposed to unelected judges) is also dubious. When an individual is elected to the office of a “Member of Parliament” s/he is elected to perform the functions and exercise the powers of that office for a limited time. The mandate by the people is not to do as that individual pleases, but to act in accordance with the powers the “people” have given to that office. The extent to which the “people” have given over their power is carefully defined by the Constitution, this is why no member can sit or vote in Parliament until s/he has taken an oath to “uphold and defend the Constitution”. The extent of the power given to Parliament can only be determined by interpreting the provisions of the Constitution, and according to the Constitution, only the Supreme Court has the right and power to do this.
Is there any legal basis and use for the so-called independent panel constituted by the President to look into the impeachment of the CJ? Do we know who is on this panel? If not, why not?
There is no constitutional provision which authorises the President to appoint such a committee/panel. It is interesting to note that none of the government MPs who have been exalting the principle of the “sSupremacy of Parliament” have come out in opposition to the President’s statement. The appointment of such a committee (amongst other things) will be a direct rebuke (by the executive) to the idea of the “Supremacy of Parliament”.
There have been contradictory news reports on whether the “independent panel” has been appointed. Some reports suggest the panel has been appointed, but the names of the members are to be kept a secret, whilst other reports state that no such panel has been set up.
What is the Bar Association’s position on the impeachment, and why?
The Bar Association of Sri Lanka (BASL) at a Special General Meeting held on 10th November 2012 passed a resolution;
“To express its grave concern about the impeachment and the independence of the Judiciary, to urge his Excellency the President of the Republic and the Hon. Speaker of the Parliament to reconsider the said ‘impeachment’.
To urge the Hon. Speaker to have a meeting with him for the Members of the Executive Committee and the former Presidents of the Bar Association of Sri Lanka on the above subject, In the event the Legislature decides to proceed with the said impeachment;
To urge the Hon. Speaker and the Hon. Chairman of the Parliamentary Select Committee appointed for the inquiry to look into the charges in the impeachment to adopt a transparent and accountable procedure with regard to the proceedings before it and announce it before the proceedings are commenced,
To urge the Hon. Speaker and the Hon. Chairman of the Parliamentary Select Committee to recognize our legitimate right to be present on behalf of the Bar Association of Sri Lanka in the proposed proceedings before the Select Committee.
To urge the Hon. Speaker and the Hon. Chairman of the Parliamentary Select Committee to ensure that the judicial pronouncements made by the Hon. Chief Justice should not influence adversely in the proceedings before the Select Committee and its findings.
To urge the Hon. Speaker and the Hon. Chairman of the Parliamentary Select Committee to permit a few observers on the proceedings before the Parliament Select Committee preferably retired Chief Justices and Justices of the Supreme Court who are not holding any public office.
To urge the legislature to formulate an alternate acceptable constitutional mechanism for the removal of a Judge of the Superior Courts that will not undermine the authority, the dignity and the independence of the Judiciary.”
Subsequently as there was no favourable response by the President or the Speaker of Parliament to the said resolution, the President and the Secretary of the BASL filed a fundamental rights application challenging the PSC process.
The BASL on 15th December 2012 passed three more resolutions asking the President of Sri Lanka to reconsider the impeachment process or to formulate and enact procedural laws (which guarantee a fair trial and adhere to principles of natural justice) with regard to the removal of judges of the superior courts before proceeding with the said impeachment and stating that the BASL would not welcome a new Chief Justice appointed as a result of a faulty impeachment process.
Are there legitimate concerns over the conduct, impartiality and professionalism of the CJ that need to be investigated? If so, how?
The allegations made against the Chief Justice in the impeachment motion have become part of the public discourse, and therefore it is immaterial whether the charges have any credibility. What is important is that the integrity of the judicial system should be protected. In order for that to happen the Chief Justice has to answer all 14 charges.
BUT an independent mechanism is an essential prerequisite in order for this to take place. As the Supreme Court stated in its determination, such a mechanism can only be provided for by law, i.e., by an Act of Parliament, and not Standing Orders of Parliament, the Supreme Court having decided that Standing Orders are not ‘law’ within the meaning of the Constitution. There are several initiatives such as the private member’s bill for the removal of judges of the Supreme Court tabled in Parliament, and the procedures in Article 151(4) (b) of the 2000 draft constitution which can form the basis of any such law. Such mechanism should also protect the right to a fair hearing of the judge and adhere to the basic principles of natural justice.
If the impeachment goes through, what if anything can the Government do to ensure an independent judiciary?
Nothing short of a complete constitutional overhaul which guarantees an independent appointment mechanism of judges – as was established by the Seventeenth Amendment to the Constitution – and the establishment of an independent mechanism to inquire into the conduct of judges (as explained above) will suffice to ensure the independence of the judiciary. But there will be other legal repercussions of the present process (explained below), which will be near impossible to reverse.
But far more damaging is the mass publicity campaign carried out by government MPs and government media outlets which both degraded the judiciary and undermined the respect the citizens of the country had towards it. The entire process of the administration of justice dependent on the respect citizens have towards the judiciary. The damage already caused by this full-scale assault on the integrity of judges and the judicial system might be irreparable.
If the impeachment goes through, what happens to cases and matters presented to the courts on issues of governance and human rights, for example, that seek to hold government accountable?
The Supreme Court exercising the powers vested with it in terms of Article 125 has determined that the PSC is unconstitutional. The Court of Appeal based on the Supreme Court’s interpretation and according to the power vested with it in terms of Article 140 of the Constitution has issued a writ quashing the PSC report. To disregard these judgments would:
Firstly, violate the oath taken by the President (in terms of the Fourth Schedule of the Constitution) and all parliamentarians including the Speaker (in terms of Article 63) to “uphold and defend” the Constitution. Therefore if Parliament and the President move ahead with the impeachment process, they will be setting a dangerous precedent for the future where governments will use this as an example/excuse for disregarding other basic constitutional provisions.
Secondly, in the event the Chief Justice is removed from office, such removal will be invalid in law as the entire process is based on the findings of the PSC report, which the Court of Appeal has held to be invalid. Thus in law the Chief Justice will still continue to hold office until she is either removed through a proper procedure (as per the Supreme Court ruling) in terms of Article 107(2) and 107 (3), or until she attains the age of 65 which is the age of retirement for a Judge of the Supreme Court. If this leads to a situation where the government has to use force to remove the Chief Justice – a very unpleasant and unsavoury situation – the legal ramifications are far more serious. They are:
Because there is no valid removal in law, no vacancy will be created to which a new Judge can be appointed. According to Article 119 of the Constitution, the Supreme Court shall consist of no more than eleven Judges. As of now, there are eleven judges of the Supreme Court: Chief Justice Dr Shirani A. Bandaranayake, Justice Shiranee Tilakawardane, Justice R. A. N. Gamini Amaratunga, Justice Saleem Marsoof P.C., Justice K. Sripavan, Justice P. A. Ratnayake P.C., Justice Chandra Ekanayake, Justice S.I. Imam, Justice Sathya Hettige P.C., Justice Priyasath Dep P.C., and Justice Eva Wanasundera. Therefore in law the new appointment will be invalid on the basis that it exceeds the limits provided for in the Constitution. If the appointment of the Judge is invalid, then all decisions delivered by a bench which includes that Judge would also be invalid.
The Constitution only recognises one Chief Justice of the Supreme Court, and if another Judge is appointed, as the Chief Justice (even a sitting judge) then this will also be an appointment invalid in law. Therefore all acts done by such other appointee would be invalid, and this would necessarily include appointing benches to hear cases before the Supreme Court. If this situation arises, then all orders given by those benches which are invalidly appointed would be void.
It is evident that this would plunge the entire legal system of the country in to disarray and completely destroy the faith the citizens of the country have in the legal system.
Thirdly, if the argument is accepted that a Judge of the Supreme Court can be removed by Parliament even by a process which is blatantly wrong, then it would create a situation where the Judges of the Supreme Court and Court of Appeal will be fearful of giving decisions against the government as it could result in them being removed from office. One of the most important facets of the independence of the judiciary is the security of tenure of sitting judges. If this process is continued, it would be evidence that even though security of tenure of judges is guaranteed by the Constitution, in reality the protection amounts to naught.
The present process is even more troubling as it is being pursued with no regard at all to the objections raised by opposition political parties, professional bodies such as the BASL and the Judicial Service Association, and other civil society organisations and religious leaders. In the face of this, the only available option for judges in the future would be to accede to the wishes of the executive and the legislature, or risk being removed from office.
The next step could be the politicisation of the lower courts, as there is danger of possible political pressure on the JSC to transfer judges according to political needs. Judges of the lower courts could be transferred according to the whims and fancies of politicians. This increased politicisation of the judiciary would undermine public confidence in the legal system. The dangers of individual citizens – who do not have confidence or respect towards the judiciary – taking the law in to their own hands require no emphasis.
Internationally Sri Lanka faces increasing criticism over the lack of a process for accountability for alleged violations of human rights and humanitarian Law during the last stages of the war. Increasingly this criticism is transforming into a call for an international mechanism for accountability to be established. The government of Sri Lanka has insisted that any accountability mechanism has to be of a local initiative. But the government’s callous disregard for the rule of law and the independence of the judiciary militates against the argument that any local initiative can be independent and transparent.
Furthermore, the government of Sri Lanka, on behalf of the Sri Lankan state, in a report in terms of Article 40 of the International Covenant on Civil and Political Rights has clearly stated that the decision of the PSC is subject to review by the Court of Appeal and the Supreme Court if it “misdirects itself in law or breaches the rules of natural justice” (at paragraph 302). Going against this undertaking will further undermine Sri Lanka’s credibility within the community of nations.