By Nihal Jayawickrama –
In seventeenth century England, the Stuart Kings seriously undermined the independence of the judiciary by the practice of dismissing judges who gave decisions unfavourable to them. Consequently, in 1701, as part of the revolution settlement on the accession of William and Mary, the English Parliament enacted the Act of Settlement which guaranteed the tenure of judges “during good behaviour”, and provided for their removal only “upon the address of both Houses of Parliament”. That law was intended to guarantee security of tenure beyond what was enjoyed by a civil servant under the Crown, since civil servants held office “at the pleasure of the Crown” and could be removed at will. The intention was to ensure that judges of the superior courts will be virtually irremovable, since Parliament rarely, if ever, did what the King desired.
Unfortunately, in Sri Lanka today, there is no distinction between the Executive and Parliament. Nearly every member of the government parliamentary group is a member of the Executive, whether as a minister, deputy minister or a monitor. Therefore, whatever the Executive desires, Parliament will render, including an impeachment motion. Indeed, the political columnist of the Sunday Island (18 November 2012), authoritatively admits that the motion to impeach the Chief Justice (which he appears to unreservedly support) is motivated “by political reasons”, namely the Supreme Court’s decision, unfavourable to the Government, on the Divineguma Bill.
A week earlier (11 November 2012), the same political columnist endeavoured to support the “charges” contained in the impeachment motion by reference to the Bangalore Principles of Judicial Conduct. Apart from inaccurately claiming that his “hero”, the former Chief Justice Sarath Silva, was involved in the preparation of the Bangalore Principles (he actually participated in reviewing an initial “secretariat draft” prepared by me), the columnist either misquoted or proceeded to “quote” a few non-existent provisions from the Bangalore Principles (as distinct from its Commentary) in support of his contention. Wherever he accurately reproduced an extract from the Commentary, it was often cited out of context.
The Bangalore Principles are not intended to form the basis for disciplinary sanctions, and certainly not for the removal of a judge from judicial office. They are ethical or professional standards based on six judicial values – Independence, Impartiality, Integrity, Propriety, Equality, and Competence and Diligence – which judges should aim to develop and towards which all judges should aspire. Of course, an exceptional situation could arise when the consistent breach of professional standards might be of considerable relevance in a disciplinary inquiry.
Contrary to the assertions of the political columnist, none of the Bangalore Principles appear to be breached by the alleged conduct of the Chief Justice. For example, a judge may hold a power of attorney from a family member or a close friend who is abroad, or act in any other fiduciary capacity. A judge’s spouse is not prevented from engaging in any activity, so long as the judge does not get involved in such activity. A lack of circumspect or good sense on the part of the spouse in choosing which activity to engage in, is not a matter for which the judge can be held responsible unless the judge was, in fact, or appeared to have been, thereby improperly influenced in his or her conduct as a judge. A judge is not prevented from publishing an article, and indeed judges are encouraged to contribute to legal literature. A judge is advised not to participate in the determination of a case only if a member of the judge’s family has an economic interest in the outcome of the matter in controversy.
Under our Constitution, a Judge of the Supreme Court may be removed from office only for “proved misbehaviour”, and not for non-compliance with the Bangalore Principles. I have already submitted that, in terms of Article 4 of the Constitution, proof of misbehaviour (which involves the exercise of judicial power) can be determined only by a court or other institution established by law. The expression “misbehaviour” is not defined in the Constitution or in any other Sri Lankan law. The Australian annotated Constitution prepared in 1901 has defined “misbehaviour” to include:
“firstly, the improper exercise of judicial functions; secondly, wilful neglect of duty or non-attendance; and thirdly, a conviction for any infamous offence, by which, although it be not connected with the duties of his office, the offender is rendered unfit to exercise any office or public franchise”.
More recently, in 2010, the UN-sponsored Judicial Integrity Group, having examined contemporary law and practice, recommended that a judge may be removed from office:
“only for proved incapacity, conviction of a serious crime, gross incompetence, or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary”.(see www.judicialintegritygroup.org).
As these definitions suggest, a finding of “proved misbehaviour” on the part of a judge, and especially of a Chief Justice, is a matter of serious consequence. Apart from the constitutional requirement referred to above, Article 14 of the International Covenant on Civil and Political Rights (which Sri Lanka has ratified) requires such a determination to be made only after “a fair and public hearing by a competent, independent and impartial tribunal established by law”. To act in defiance of our supreme law, as well as of international law, in the pursuit of some petty personal or political objective, is to go back in time to step into and walk in the shoes of the megalomaniac Stuart kings.