Role of Standing Orders in impeachment process



by Neville Ladduwahetty


The Supreme Court in its ruling stated: "A Parliamentary Select Committee appointed in terms of Standing Order 78A derives its power and authority from the said Standing Order which is not 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…"(p.24). An outcome of this reasoning was that "without a definite finding that the allegations have been proved no address of Parliament could be made for the removal of a Judge" (p.23).


It follows from the above that "proof of the alleged allegations" forms the central pillar on which rests the determination of the Supreme Court. This makes the process and the procedures adopted in conducting the investigation a judicial inquiry, thereby making its conclusion final. If the findings of such an investigation are to be so conclusive and final, why should the order for the removal of a Judge only be made after an address of Parliament supported by "a majority of the total number of Members of Parliament (including those not present) – as per Article 107(2)? If the findings are accepted as conclusive, Parliament would only serve as a conduit without any discretionary powers in the process to address the President for the removal of a Judge. Under this ruling the need for the support of a majority vote becomes superfluous.


THE SIGNIFICANCE OF THE MAJORITY VOTE  BY PARLIAMENT


The need for a majority of Parliament to support the address to the President is not a frivolous exercise without significance. It must mean that the rigorousness of the investigation need not meet the standards of a judicial inquiry since the last word was with Parliament. This notion was reflected in the submissions of President’s Counsel K. Kanag-Isvaran in the petition filed by Mr. Chandra Jayaratna when he stated: "The ultimate authority remains with the Parliament in the sense that even if the "judicial forum" records a finding that the judge is guilty of the charges, it is yet open to the Parliament to decide not to permit an address to the president for removal. (The act of removal by the President is an executive act)"(December 13, 2012).


This explains why Article 107 (3) in the 1978 Constitution states: "Parliament shall by law or Standing Order provide for all matters relating to the presentation of such an address…" This contrasts sharply with the provisions for the removal of Judges of the Supreme Court and the Court of Appeal in the 1972 Constitution which states under the heading "Judges of the Court of Appeal and the Supreme Court", Article 122 (2): "Every such Judge shall hold office during good behavior and shall not be removed except by the President upon an address of the National State Assembly". While this may appear arbitrary it reflects the supremacy of Parliament under the 1972 Constitution wherein the decision and authority to remove a Judge was retained solely by Parliament and not outsourced to any other entity as a preliminary step prior to exercising its authority.


It is evident that the 1978 Constitution removed the arbitrariness of the provisions of the 1972 Constitution. Despite the fact that this is a consequence of the separation of powers under the current Constitution, Parliament did retain the discretion to override the findings of an investigation of a "judicial forum" as submitted by the learned Counsel cited above by requiring the address to the President to be based on majority vote. Under these circumstances, an investigation based on "law or Standing Order" makes sense because the degree of proof of the investigation need not meet the threshold called for in the ruling by the current Supreme Court.


THE SUPREME COURT RULING


The ruling given by the current Supreme Court is solely on the methodology adopted in the "investigation" on which the removal of a Judge is based. In arriving at its determination the Supreme Court states: "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 behavior….. Thus, the final decision of the Select Committee is what eventually takes effect. The finding of the Select Committee is not subject to confirmation or approval by some authority. It stands by itself. So the address of Parliament to be presented to the President is an inevitable consequence of a finding that the charges have been proved". (p.23)


This reasoning resulted in the Supreme Court issuing the following ruling:


"In view of the reasons we have set out above we answer the question referred to us, as set out at the beginning of this order, as follows. It is mandatory under Article 107 (3) of the Constitution for the Parliament to provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof of any alleged misbehavior or incapacity and the Judge’s right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehavior or incapacity". (p.26)


The consequence of this reasoning and the ruling that followed is that Parliament has no role to play in the process of removal of a Judge. Adopting this reasoning would require Article 107 to be seriously revised to an extent that Parliament plays no role in the process of removing a Judge other than to forward the findings to the President for necessary action. The relinquishing of power by Parliament to such an extent was certainly not anticipated by the framers of the present Constitution. However, that is what it amounts to. Under the circumstances, investigation "by law OR Standing Order" makes sense because no matter how rigorous the proof, Parliament has the opportunity to override it; an opportunity denied by the current Supreme Court ruling based on the reasoning cited above.


From the arbitrariness associated with the removal of a judge that existed in the 1972 Constitution to one where Parliament ceases to have any role in the process is unacceptable because Article 4 (c) states: "the judicial powers of the People shall be exercised by Parliament through courts, tribunals …" and as long as this provision exists Parliament is entitled to exercise its powers to ensure that the required infrastructure exists for the Judiciary to exercise its judicial powers. Since a most vital component in this infrastructure is that Judges "hold office during good behavior" and only during good behavior, Parliament has to stay engaged if it is to fulfill its responsibilities. This is not possible under the interpretation of Article 107 (3) given by the Supreme Court.


CONCLUSION


The interpretation given by the Supreme Court in regard to the removal of Judges of the Supreme Court and the Court of Appeal is that it is mandatory for Parliament to provide "by law the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof of any alleged misbehavior or incapacity...". This ruling has denied any role for Parliament in the investigation processes. Consequently, abiding by the ruling would entail Constitutional revisions to several key paragraphs of Article 107.


If Parliament is to be excluded from the processes of investigation it has no meaningful role in the address to the President. On the other hand, its role in the address to the President would have relevance ONLY with Parliament staying engaged in the process through arrangements in the Standing Orders. This wisdom is reflected in Article 107 (3) wherein it states its role in the address to the President would have relevance: "Parliament shall by law or Standing Order provide for…" Therefore, despite the convention that the nation has to abide by rulings of the Supreme Court, the latter too has a responsibility to the nation for a larger body of the Supreme Court to re-visit the ruling in respect of all of Article 107.


 
 
 
 
 
 
 
 
 
 
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