MR’s Jeffersonian/Nehruvian Moment



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The determination made by a three member bench of the Supreme Court comprising of Justices Gamini Amaratunga, K.Sripavan and Priyasath Dep, to a query regarding the interpretation of Article 107(3) of the constitution addressed to them by the Court of Appeal was described by UNP Provincial Councillor Srinath Perera as a historic decision. Indeed it is, but things can be ‘historic’ for all the wrong reasons too. The question that had been addressed to the Supreme Court by the Appeal Court with regard to the impeachment procedure was as follows:


"Is it mandatory under Article 107(3) of the Constitution for the Parliament to provide for matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof; standard of proof etc., of any alleged misbehaviour or incapacity in addition to matters relating to the investigation of the alleged misbehaviour  or incapacity?"


The Attorney General contended that Though Article 125(1) grants sole and exclusive jurisdiction to the SC to hear and determine any question relating to the interpretation of the Constitution, when it comes to the removal of Judges of the Supreme Court or the Court of Appeal, the SC does not have any jurisdiction. And further that the power to remove judges of the Supreme Court and the Court of Appeal vested in the Legislature and the Executive under our Constitution is a check on the judiciary.  The SC did not accept that argument and made a determination based on the following points.


*   Article 52(2) of the 1947 Constitution of Ceylon enabled judges to be removed by an address in both houses of parliament.  Similarly, Article 122(1) of the republican constitution of 1972 Article allowed the removal of judges by an address in the National State Assembly. However, the 1978 Constitution laid down an elaborate process for the removal of a Judge and it has been stipulated in the constitution that impeachment can take place only on proved misbehaviour or incapacity. The object and the significance of these new provisions are important matters that have to be considered in interpreting Article 107(3) of the constitution.


* The preamble to the constitution states that the independence of the judiciary is an important part of the intangible heritage that guarantees the dignity and well being of the people of Sri Lanka. It was pointed out that in Visuvalingam v Liyanage (1983) Justice Sharvananda J had held that the framers of the 1978 constitution were so solicitous of ensuring the independence of the judges that they were made irremovable save on the limited grounds and manner specifically set out in the constitution.


* Article 107 has not specified the body or the Authority which shall investigate the allegations in impeachment motions against Judges.  Article 107(3) of the constitution states that Parliament shall "by law or by standing orders" provide for the procedure to impeach judges. However, parliament has not enacted any law to provide for matters set out in Article107(3). Parliament passed in 1984 Standing Order 78A which lays out the procedure for impeaching judges.


*  The petitioners in the Court of Appeal and in the SC have contended that Standing Order 78A confers judicial power on the Select Committee to investigate the allegations of misbehaviour or incapacity of judges. They contend that this violates Article 4(c) of the Constitution which stipulates that parliament shall exercise its judicial power through courts and tribunals established by law except in cases regarding the powers and privileges of parliament where parliament can exercise this power directly according to law. They have further contended that judicial power cannot be conferred upon the Select Committee by a Standing Order which is not Law.


* The basic premise of Public Law is that power is held in trust, not absolutely - that is to say, it can validly be used only in the right and proper way. It has been firmly stated in several judgements of this Court that the ‘rule of law’ is the basis of our Constitution. Justice Bhagwathi has stated that it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and effective.


* Without a definite finding that the allegations have been proved no address of Parliament could be made for the removal of a Judge. Thus the ‘Investigation’ referred to in Article 107(3) is an indispensable step in the process for the removal of a Judge of the Supreme Court and the Court of Appeal. The investigation leads to a finding whether the allegations made against the Judge have been proved or not. The finding that the charges have been proved is the indispensable legal basis for the address. Thus, the finding that the allegations have been proved is a finding that adversely affects the constitutional right of a Judge to hold office during good behaviour.


* The finding of the Select Committee is not subject to confirmation or approval by some other authority. It stands by itself. In a State ruled by a constitution based on the rule of law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such court, tribunal or body has the power conferred on it by law to make such finding or decision. Such legal power can be conferred only by an Act of parliament which is a law and not by standing orders which are not law but are rules made for the regulation of the orderly conduct and the affairs of the Parliament. The standing orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by ‘law’. Therefore a Select Committee appointed under and in terms of Standing Order 78A has no legal power or authority to make a finding adversely affecting the legal rights of a Judge. The power to make a valid finding after the investigation contemplated in Article 107(3) can be conferred on a body, only by law and by law alone.


* The matters relating to proof being matters of law, also will have to be provided for by law and the burden of proof, the mode of proof and the degree of proof also will have to be specified by law to avoid any uncertainty as to the proof of the alleged misbehaviour or incapacity without leaving room for the body conducting the investigation to decide the questions relating to proof according to its subjective perception.


 


That in essence is the gist of the SC judgement. The basic argument is that even though Article 107(3) of the constitution says that "Parliament shall by law or by Standing, Orders" provide for the procedure to impeach judges, parliament has no discretion in this matter and it has to be done by law, not by standing orders. This is an instance of the courts telling parliament what it should and should not do even when the option is given to parliament by the constitution itself. To make matters worse, the SC has even quoted Anura Bandaranaike’s famous ruling where while upholding the supremacy of parliament he had also stated that "Members of Parliament may give their mind to the need to introduce fresh legislation or amend the existing standing orders regarding motions of impeachment against judges of the superior courts. I believe such provision has already been included in the draft constitution tabled in this house in August 2000. " The SC adds that the 2000 draft constitution did not see the light of the day as a new constitution. This is a case of the SC telling parliament what kind of laws they should enact. That is not the role of the SC.


 


In this gloomy scenario, the only bright spot is that the SC has tried on earlier occasions to order the removal of checkpoints on roads and to ban night searches of houses and even to determine the price of petrol all of which were spectacularly ignored by the executive branch. On an earlier occasion the SC tried to serve a stay order on parliament in relation to accepting or otherwise of an impeachment motion against the then CJ, which was ignored by parliament. So the precedents in cases like this are already well established.


 


Be that as it may, this latest determination by the SC would have given President Mahinda Rajapaksa a taste of what US President Thomas Jefferson would have felt on the 24th of February 1803, the day that the US Supreme Court decided in Maubry v Madison that the SC has the authority to review acts of Congress and determine whether they are unconstitutional. The power of judicial review of legislation was not explicitly stated in the US constitution but was a power that the SC conferred on itself through judicial interpretation. Article 3 (2) of the US constitution simply says that "The judicial power shall extend to..." and among the things that the judicial power extends to, is mentioned the words  "the laws of the United States". It was the latter phrase that the US SC used to arrogate to itself the power of judicial review.  President Jefferson moved swiftly to tame the judiciary by bringing in quick succession, impeachment motions against two judges - Thomas Pickering and Samuel Chase. This was to show that while the judiciary can use its powers, the legislature can make use of theirs as well.


Jawaharlal Nehru of India faced a similar situation in 1951 when the Supreme Court was blocking social reform legislation in India. He introduced the first amendment to the constitution, creating a special list of legislation over which the Indian SC has no jurisdiction. (This list started with 13 pieces of legislation but now has 283.) Since then, the strategy of the Indian government has been to side step the Supreme Court either by adding legislation to Nehru’s list or by directly overriding SC decisions by bringing amendments to the constitution. The single body that has inspired the greatest number of constitutional amendments in India is the Supreme Court. Thus the manner in which the Judiciary is handled in the USA and in India are now well established. What last week showed was that Sri Lanka too is now facing the moment of truth that President Jefferson faced in 1803 and Nehru faced in 1951.     


The courts and parliament


 


In Sri Lanka, three sources of law lay down the powers of parliament – firstly there is the constitution itself which lays down the main powers of parliament. Secondly there is the


Parliamentary Powers and Privileges Act No: 21 of 1953 and its many amendments which fill in the gaps left by the constitution and thirdly, Article 7 of the Parliamentary Powers and Privileges Act states that any gaps in that Act can be filled by following the practices and precedents of the House of Commons of the United Kingdom parliament. If we look at these sources of law, we see that Article 4 of the Parliamentary Powers and Privileges Act lays down very clearly that Members of Parliament shall not be liable to any proceedings in any court in relation to the matters brought before parliament.


Since the practices and precedents of the British parliament are to be followed in Sri Lanka in terms of the Parliamentary Powers and Privileges Act, it would be pertinent to note that the House of Lords Select Committee on the Constitution decided in its 2006-07 Sessions that while it is not for Parliament to hold judges to account for their judgments, it is a fundamental principle of a democratic society … that those with power should be accountable to the people, through their elected representatives. It was also asserted that Parliament is the "apex" of accountability in the political process, since the public is the judiciary’s key stakeholder and Parliament represents the people.


The landmark British case of Stockdale v. Hansard  (1839) laid down the precedent as far as the privileges of parliament were concerned among which the following points are noteworthy in the present context.


1. The House should be exclusively the Judge of its own privilege. The power claimed is said to be necessary to the due performance both of the legislative and inquisitorial functions of the House.


2. The House of Commons and the members thereof should in no way be obstructed in the performance of their duties, and if the House be so obstructed, the remedy should be in its own hands, and immediate, without the delay of resorting to the ordinary tribunals of the country.


3. The Courts of Law are subordinate to the Houses of Parliament and the courts are therefore incompetent to decide upon a question of parliamentary privilege.


The House of Lords in a more recent case British Railways Board v Pickin (1974) stated the following:


Lord Reid: - All that a court of justice can look to is the parliamentary roll; they see that an act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into parliament, what was done previously to its being introduced, or what passed in parliament during the various stages of its progress through both Houses of Parliament.  For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict, and I would only support it if compelled to do so by clear authority. But it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation.


Lord Morris of Broth-Y-Gest:- It must surely be for Parliament to lay down the procedures which are to be followed before a bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark on an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed. If a mistake has been made, the legislature alone can correct it. The court must accept the enactment as the law unless and until the legislature itself alters such enactment on being persuaded of its error.’


Lord Simon of Glaisdale:- The courts in this country have no power to declare enacted law to be invalid. That being so, it would be odd if the same thing could be done indirectly, through frustration of the enacted law by the application of some alleged doctrine of equity. Parliamentary privilege is part of the law of the land (see Erskine May’s Parliamentary Practice). Among the privileges of the Houses of Parliament is the exclusive right to determine the regularity of their own internal proceedings. What is said or done within the walls of Parliament cannot be inquired into in a court of law. On this point all the judges in the two great cases which exhaust the learning on the subject, – Burdett v. Abbott (1811) and Stockdale v. Hansard; – are agreed, and are emphatic.’


Colvin was right!


 


When considering last week’s SC determination we see the wisdom that was enshrined in the 1947 constitution and the republican constitution of 1972 which made the judges of the superior courts removable by a simple address of parliament. When the present standing orders of parliament relating to the impeachment of judges was being debated in April 1984, Prime Minister R.Premadasa poked fun at Sarath Muttetuwegama saying that despite the Communist Party MP’s calls for an independent body outside parliament instead of a parliamentary select committee to inquire into the allegations in an impeachment motion, in the 1972 republican constitution which was authored by his father in law Colvin R de Silva, there was to be no inquiry at all, and  judges could be removed by a simple majority after an address in parliament. Premadasa averred that since the quorum of parliament at that time was 25, only 13 MPs were needed to sack any judge.


Premadasa’s argument was that compared to the provisions for the removal of judges in the 1947 and 1972 constitutions, the system brought by the UNP government was a vast improvement in that it had provision for a mandatory inquiry and removal only on proven grounds of misbehaviour or incapacity. Moreover he stressed that even though judges could be removed with a simple majority of parliament, this simple majority had to be a simple majority of the total number of MPs in parliament (including those not present) and not just a majority of those present and voting on that day.  Last week’s SC determination made it very clear that their present determination seeks to adhere to the spirit of the changes introduced through the 1978 constitution. This has now led to a situation where the SC has declared invalid the constitutionally mandated impeachment procedure (the constitution plus the standing orders made under authority of Article 107(3) of the constitution).


Now that constitutional change is in the air again, the government should seriously consider going back to the old system in the 1947 and 1972 constitutions whereby judges could be removed by a simple address in parliament, by a simple majority, without any inquiry except for whatever debate that takes place in parliament. In those good old days, problems like the issues we face today were unthinkable. We clearly see today that the so called ‘improvements’ that were made in the 1978 constitution have failed. The opposition has walked out of the proceedings and if a judge is to be impeached in the future there is no point in going through the present procedure again. Finally, what we see after more than three decades is that Colvin was right to retain the 1947 formula for the removal of judges.


We pointed out in a previous column that despite anything that may have been said in the Latimer House Principles on the removal of judges, the British Constitutional Reform Act of 2005 has judiciously retained the system of removing judges by a simple address in parliament in respect of the highest judicial body. They have implemented the Latimer House Principles only in respect of the lower judicial bodies. With regard to Australia as well we saw that Australian Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of 2012 has not really changed the law with regard to the removal of judges but only given the Australian parliament another option in its repertoire of options relating to the removal of a judge.


Australia too can sack a judge by an address in parliament. They have the option of appointing a special commission to inquire into the allegations against the judge, then they can appoint any other kind of commission or not appoint any commission at all –the discretion lies entirely with parliament. We see that both Britain and Australia have in recent years opted for open ended removal procedures for judges and this is the precedent that we should be following. Countries like Britain and Australia are full of mad judges whose judgements are the subject of much media attention and public ire or entertainment as the case may be. The reason why those countries left the removal procedure simple and uncomplicated is because if by some chance one of these crackpots gets into the highest judicial body, there is no predicting what will happen. In the USA, there is some protection for the public because of Senate scrutiny of all appointments to the superior judiciary and a reputed crackpot will have little chance of getting into the Supreme Court. Countries that do not have such safeguards should always opt for the removable of judges by a simple address of parliament.


 
 
 
 
 
 
 
 

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