The continuing debate on impeachment

By Neville Ladduwahetty

Not a day passes without comment relating to the impeachment proceedings of Sri Lanka’s Chief Justice, Shirani Bandaranayake. Of these comments the two most common are:

1. Provision in the Standing Order 78A (5) requiring the accused to "adduce evidence, oral or documentary, in disproof of the allegation made against him" violates the normal principle of burden of proof being with the accuser.

2. That the Parliamentary Select Committee appointed under provisions of Standing Order 78A violates the Constitution.

The attempt herein is to address issues only of procedure as it relates to provisions in the Constitution and the Standing Orders. It studiously avoids comment on intent, motives and agendas of the parties concerned and their supporters.

In regard to the first issue, the claim is that the provision in Standing Order 78A requiring an accused to disprove charges against him/her is a violation of the concept of "presumed innocent until proved guilty". Article 13 (5) however goes beyond this concept and states: "Every person shall be presumed innocent until he is proved guilty: Provided that the burden of proving particular facts may, by law, be placed on an accused person". Therefore, to base an argument only on the presumption of innocence without citing that in particular instances, provision exists for "the burden of proving particular facts may, by law, be placed on the accused" as required by 78A (5), is to be disingenuous. The argument that Standing Orders do not reach the threshold of law does not hold, since Article 107 (3) and several other Articles state "by law or by standing order"; i.e., the Constitution has given Standing Orders the same pride of place as the law. Therefore, "to adduce evidence oral or documentary, in disproof of the allegations made against him" under Standing Order 78A (5) is a valid requirement of the procedure.

Several arguments

Several arguments have been cited with regard to the issue of unconstitutionality of the Parliamentary Select Committee (PSC). One is that Article 4 (c) limits powers of Parliament to "matters relating to the privileges, immunities and powers of Parliament and of its members". This Article together with Article 13 (3) which states: "Any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court" is the foundation on which the argument of the unconstitutionality of the PSC is based.

Article 4 (c) also states that "the judicial powers of the People shall be exercised by Parliament through courts, tribunals etc. etc.". Under the circumstances, Parliament becomes responsible for the instruments through which justice is carried out, and under Article 107, Parliament is also responsible for ensuring that persons engaged in judicial processes are of a certain calibre that meets the requirement of "good behaviour". As to what constitutes "good behaviour" and who determines whether such a threshold has been met or compromised is the issue at hand.

What constitutes "good behaviour" is an abstract issue. Therefore, some have proposed that assessment as to what constitutes good behaviour should be made by a panel of former Supreme Court judges, either from Sri Lanka or from the Commonwealth. However, one must not lose sight of the context of the issue at hand. And that context is that the conduct of the CJ has warranted an investigation into alleged financial transactions involving rewards and attempts to conceal incomes and assets. Such allegations should be sufficient grounds to disqualify a person from holding the position of the highest office in the Judiciary, because his/her conduct is expected to be unassailable. In the circumstances, there is no need for a judicial inquiry because what the People expect is that the Judiciary lives up to standards of unquestioned propriety and even an appearance of impropriety would be grounds for loss of confidence in the Judiciary.

Literal interpretation

Another aspect is the literal interpretation of 78A (8) of the Standing Orders. This order states: "All proceedings connected with the investigation by the Select Committee…shall not be made public unless and until a finding of guilty on any of the charges against such judge is reported to Parliament by the Select Committee". A literal interpretation that the PSC functions as the final arbiter of the inquiry is flawed because it would mean that the PSC is not only the body that investigates and proves allegations by sending for "persons, papers and records" as per 78A (4), but also has the objectivity to review the oral and documentary evidence of "disproof of the allegations" of the accused, and report to Parliament that the person concerned is guilty according to their findings.

This would be a serious violation of justice, since the accuser and the arbiter would be the PSC. Therefore, 78A (8) needs to be interpreted differently. The issue of guilt should be based only on findings of the PSC investigations. There is also however, the evidence of disproof. The PSC cannot be expected to review both objectively and conclude one way or the other. It has to be someone else other than the PSC for the sake of raw justice. In the case of Sri Lanka, since Parliament is unicameral, that ‘someone else’ should be the entire Parliament, since it has to be an authority higher than the PSC. It is the entire parliament that should hear the totality of submissions, i.e., evidence of guilt gathered by the PSC, and evidence of disproof presented, by the CJ by giving her the opportunity to appear before Parliament (an opportunity that was not available during the sessions conducted by the PSC). In such a scenario, the PSC would be the prosecutor and the CJ would be the defender with Parliament hearing evidence from both sides, with debate and a final vote by secret ballot to determine whether to remove the CJ or not.

Such a procedure could be interpreted by some to mean that the outcome would be a foregone conclusion. The alternative of an independent panel or a separate PSC to review the totality of the evidence and make a recommendation to Parliament has been proposed. But all this is about procedure, and its fairness to establish guilt or innocence of this CJ. However, fairness of the procedure is more important for the image of the administration and the country than to the CJ, because conduct that warrants investigation should disqualify any CJ from continuing to hold office. Therefore, procedures have no material bearing because guilty or innocent, no CJ should continue in office once his/her conduct has tarnished the image of the Office of Chief Justice. As far as the People are concerned, they do not expect their CJ to leave room for his/her conduct to be investigated. The very fact that the conduct of this CJ had warranted investigation would be seen by the People as conduct unbecoming of their country’s Chief Justice.

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