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Monday 31 December 2012

The logic of the impeachment - nonpublished

The economists usually say that on one hand this is the situation explaining some phenomenon related to economics, and then continue to tell us in the same breath that on the other hand the situation is exactly the opposite. The lawyers usually present their case listening to the other side only if the opposition presents a weak case. It is a case partly heard, but as far as the law is concerned it does not matter much. There are eminent lawyers arguing for or against the impeachment of the CJ without ever coming into any agreement on the important points. As laymen I have followed the debate but I find it difficult to understand some of the “points” raised by some eminent lawyers who argue that the impeachment is not constitutional, not according to the law etc. It may be due to my ignorance in law but when I consider the “solutions” suggested by them I know that their knowledge of law is not heads and shoulders above my knowledge which is absolutely minimal. The Bar Association is clearly divided on the issue as seen by the fights but I was flabbergasted when I heard that an important resolution on the impeachment had been accepted unanimously without even putting it to the meeting on last Saturday. When the learned President was asked by a journalist why no vote was taken on the resolution the reply that the latter got was that there was no need to put to the meeting a resolution that would be adopted unanimously. (Ekamathikava sammatha vena yojanavakata chande ganne ona nehe). I am not blaming the lawyers for their queer logic as the academics would give the lawyers a run for their money. During the year of 2011 when the University Teachers’ Association of the University of Kelaniya discussed the resolution to engage in trade union action I opposed it. The resolution was passed and soon a Professor in Economics declared that the resolution has been passed unanimously. When I reminded the meeting that I voted against the resolution the learned Professor said except for the Professor (me) the resolution has been passed unanimously (Mahacharyathuma herunuwita yojanawa ekmathikava sammathai). It appears that some learned people have a different opinion on the concept of unanimous which I find difficult to understand.

As a schoolboy who studied Civics in the GCE (Ordinary Level) class, albeit without sitting for the examination in that subject, I came across these so called three pillars of western democracy. The textbooks give the impression that the three pillars executive, legislature, judiciary are absolutely equal, and it is unfortunate that most of us have this feeling that the three pillars are equal. What is not understood is that they are equal only as a general principle and the so called separation of powers on an equal footing is only found in the text books stemming from the unfinished bourgeois revolution in England. In theory the three pillars may be equal but in practice the pillars are neither of equal height nor strength depending on the constitution of the particular country. In Sri Lanka as well as in USA the sovereignty is with the people in the abstract but the three different sections of sovereignty are exercised by different organs. The western modernity that has a linear logic has to have somebody at the apex though in theory powers are supposed to be separated on an equal footing. According to the 1978 constitution of Sri Lanka the executive has more powers than the legislature which in turn has more powers than the judiciary. We may not agree with the constitution, but whether it is bahubootha or not we have no alternative but to abide by it until it is amended or repealed according to the very same constitution, unless of course a revolution puts an end to the constitution.

The relevant articles of the constitution for this purpose are 4 (C), 107 (2) and 107 (3). Then we have the standing orders 78 (A) of the Parliament, which have been referred to, often without quoting them. The Article 4 (C), without denying the sovereignty of the abstract people establishes that the Parliament is superior to the Judiciary in Judicial matters. It says “the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law”. The judicial power of the people is exercised by the Parliament and not by the Courts that are mere instruments used by the Parliament. The question is asked whether the Parliament could directly exercise the judicial power of the people who exist in theory in the abstract, other than in matters relating to privileges etc., of the Parliament and its members. The answer to that question is yes if the Parliament is recognized by the constitution as an institution through which the judicial power of the People is exercised by the Parliament for a specific purpose. That is if the Parliament itself is recognized by the constitution as an institution through which judicial power is exercised by the Parliament.

Now Articles 107 (2) and 107 (3) of the constitution recognize the Parliament together with the President (President is also recognized for this particular purpose) as an institution through which judicial power of the People is exercised by the Parliament in the case of impeachment of the judges of the two higher courts of the country. This is what 107 (2) says on this matter. “Every such judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity.” As article 107 (1) empowers the President to appoint such judges, the constitution gives the power to remove the judges also to the President. However he cannot do so on his own and only the Parliament has the power to initiate the process and make an address to the President to remove such judges. The Parliament on the other hand can address the President only on the ground of proved misbehaviour or incapacity. Thus the Parliament has to prove to itself the misbehaviour or incapacity of the judge and the Article 107 (3) of the constitution quoted below provides for procedure as well as the investigation and proof of the alleged misbehaviour or incapacity. “Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.”. What is clear is that the standing orders alone could make such provision.

The judges of the higher courts are not perfect, and somebody has to judge the judges. The western modernity with its linear thinking and hierarchical structures has a problem in such cases and in this case the power to judge the judges has been invested in the Parliament and the President, recognized as an institution by the constitution for the specific purpose. This again proves that in our constitution Parliament is superior to the Judiciary in exercising the Judicial powers of the abstract people. However, in this particular case the investigation and judgment (including punishment or otherwise) have been separated. The Parliament has the investigative powers (of the judicial powers) and the President has the power to remove the particular judge if the Parliament finds that the charges have been proved. It should be pointed out that even if the Parliament finds the charges have been proved the President need not remove the accused judge. The way 107 (3) has been worded gives the President power either to remove or retain the judge even if the Parliament finds that the particular judge is not suitable to continue in that capacity. The President can exercise his discretion proving that according to the constitution the executive is superior to the Parliament. If the President decides to retain the judge, it does not imply that he has neglected the Parliament or Parliamentary Select Committee but he has only exercised power given to him by the constitution. It is up to the President to consult anybody, a so called independent committee or even individuals before coming to a decision on the removal, though no such course of action is provided by the constitution. It has to be mentioned that if the Parliament finds that a judge is not guilty then the President does not have the power to remove such judge.

According to 107 (3) the Parliament has the power to act as specified in standing order 78 (A) and thus the Parliamentary Select Committee (PSC) appointed under 78 (A) (2) for the purpose has the investigative power in a case of impeachment of a judge. It is the standing order 78 (A) (6) that has specified the period during which a report has to be presented by the PSC to the Parliament, and all the other procedural matters are governed by standing orders 78 (A). In particular 78 (A) (3) among others says: “The Select Committee appointed under paragraph (2) of this Order shall have power to send for persons, papers and records”. There is no provision to call for witnesses and to listen to evidences as such specified by the ordinances or acts. There are courts who do not summon witnesses and the procedure adopted by Labour Tribunals is different from that of the district courts or the higher courts. The PSC is governed by standing orders and no courts could challenge the PSC on any procedural matters or on anything pertaining to the investigation by the PSC. The PSC has the power to call for persons and those persons are not witnesses that could be cross examined. A person called by the PSC is not a witness in the sense of the ordinances and acts pertaining to evidence, and no court can challenge any findings of the PSC made according to the standing orders.

There are some MPs as well as lawyers who want a panel of retired judges, commonwealth judges, or others to sit on the impeachment. While the people in the abstract cannot agree to withdraw their sovereignty in Judicial powers by appointing foreigners to sit on judgment on impeachment of their judges in the higher courts, it is clear that new laws cannot be enacted to judge a person after he/she has been accused. The CJ has to be judged according to the existing laws of the country, the supreme law being the constitution, and the laws should not be changed even in the case of the CJ. The CJ unfortunately has not respected the constitution. According to standing order 78 (A) (5) which says that “The Judge whose alleged misbehaviour or incapacity is the subject of the investigation by a Select Committee appointed under paragraph (2) of this Order shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce evidence. oral or documentary, in disproof of the allegations made against him”. The onus of disproving the charges falls on the judge unlike in the cases in the courts, and when the CJ withdrew from the PSC she gave up that right.

Then finally the question arises as to the interpretation of the Articles mentioned above, especially with regard to the Parliament using Parliament as an instrument to exercise the Judicial powers of the people. There is no ground for such interpretation as the Parliament so far has acted according to the constitution, and further the Supreme Court cannot decide on a case involving the impeachment of one of its judges, even if it is an interpretation. It is against the maxim of not judging one’s own case and all such interpretations, if needed, have to be made by the Speaker of the Parliament.

Copyright Prof. Nalin De Silva