K.N. CHOKSY’S CONSTITUTIONAL CONUNDRUM :

A comment Dr. B.S. Wijeweera



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Do not believe merely on the authority of your teachers and elders; After observation and analysis, When it agrees with reason and is conducive to the good of all, then accept it and live up to it.(Kalama Sutta)


Mr. K.N. Choksy, PC, is a legal luminary who, in recent years, has tended to hide his lights under the bushel of quiet retirement. However, in the past few weeks he has come into the limelight once again to throw light on the controversial Impeachment Motion against the CJ. Even his son has joined him on the Rupavahini ‘’Hit Parade".


As reported in the Sunday Island of 16 December, KNC has taken issue with the statement attributed to the President that he is answerable to his conscience and that he intends to obtain "independent" advice before acting, in the event he is faced with a parliamentary Address for the removal of the CJ. KNC has raised several constitutional issues that need serious consideration, but before discussing them an important caveat has to be entered.


KNC’s focus is primarily on Article 107 of the Constitution. It would be better to examine the provisions of this Article not in isolation but against the overall constitutional scheme spelt-out in the Constitution.


Conflict Between Legislature and Executive


KNC poses the hypothetical issue of Parliament presenting an Address for the removal of the CJ but the President, on advice received by him or otherwise, deciding against such removal. He poses the question whose view should prevail: that of Parliament or the President ? He states his opinion is that Parliament’s view should take precedence.


In support of this opinion he explains that though both Parliament and President are representative of the sovereignty of the people, the view of Parliament should be given effect to "because Parliament represents the collective will of the people". From this standpoint he takes a quantum leap to state that the MPs who vote for such an Address actually "voice the view of the people."


This interpretation has to be re-examined carefully not the least because it originates from a well - known authority on constitutional law.


Concept of Popular Representation


The view that MPs are the vox populi is somewhat fallacious. The empirical political science standpoint is that they are primarily the agents of the political parties and the party leaders that nominated their candidature. No one in his proper senses would subscribe to the notion that the self -proclaimed Lord of Kelaniya (to take one such example) is the voice of the majority of voters in Kelaniya, though he may yet win another election. The electoral process may confer a necessary constitutional legitimacy, but to read more into that can lead to fallacious conclusions.


KNC’s other submission that though both Parliament and the President are representative of the sovereignty of the people, only Parliament represents "the collective will of the people" is equally problematic. Parliament and the President derive their legitimacy though independent and separate electoral processes and, thus, enjoy co-ordinate authority with neither being subordinate to the other. When all the people get together to vote for a President can we say that "the collective will" is not represented?


If at all it is the President who has the edge over Parliament in the 1978 Constitution, because he can dissolve Parliament at will after a lapse of one year. Parliament cannot similarly remove a President without adhering to an elaborate impeachment procedure.


One other striking point has to be made about this "collective will of the people" attributed to Parliament. When financially well-off MPs (of both sides of the House) serve themselves sumptuous meals at subsidized rates in Parliament’s restaurant at a time when more than half the population is struggling to feed themselves two square meals are we to accept that such behaviour reflects the "collective will of the people?’’ Furthermore, when they serve themselves encashable duty-free vehicle permits are we to believe that this is the "collective will of the people?"


The Provisions of Article 107(2)


We have noted that the Constitution in Article 4 legitimizes the exercise of executive power by the President and that of legislative power by Parliament. Article 107(2) recognizes the exercise of both types of power. There is an Address which is an exercise of legislative power (enabling law), and then an Order for the removal of the judge, which is an exercise of executive power. It should be noted that removal is the reverse process of the original executive act of appointment which the President conferred on the very same judge. Both appointment and removal are executive acts subject to the proviso that for removal such act should be preceded by an Address of Parliament. The Address is a necessary condition. It must not be elevated to the status of a mandatory provision invoking nebulous concepts like "will of the people".


Conclusion


This response has agued that the President is well within his rights to seek "independent" advice before he exercises the executive power conferred on him by the Constitution to remove a judge. He can only act on an Address by Parliament: to this extent his power is circumscribed. To argue that such an Address is mandatory is to invest Parliament with executive power in violation of the scheme envisaged in Article 4 of the Constitution. If the original intention was to make an Address mandatory, then, Article 107(2) should have been appropriately worded.


 
 
 
 
 
 
 
 
 
 
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