By C. A. Chandraprema –

As the week came to a close, a fresh controversy was generated with the Court of Appeal issuing summons on the Speaker of Parliament and the Parliamentary Select Committee appointed to inquire into the impeachment motion against the chief justice. The Court of Appeal was relying on an interpretation of Article 138(1) of the constitution which gives it the power to “correct all errors in fact or law which may be committed by any court of first instance, tribunal or any other institution”. Why the CoA thinks it has the jurisdiction to correct perceived ‘errors in fact and law’ made even by parliament is because of the phrase ‘any other institution’ which also appears in Article 140, which the CoA has emphasised in bold letters in its determination. Even a cursory reading of articles 138 and 140 will show that the term “any court of first instance, tribunal or any other institutions” refers to judicial bodies below the Court of Appeal (written from the high to the low).

The term “any other institution” in articles 138 and 140 obviously refers to minor judicial bodies ranking below even the tribunals. If the term “any other institution” is so broad that it includes the parliament, then it has to inevitably include the Supreme Court as well.  Does that mean that the Court of Appeal has the power to ‘correct all errors of fact or law’ that may be committed by the Supreme Court? This kind of determination will of course be summarily brushed off by parliament. Constantly having their decisions publicly ignored will do no good to the judiciary in this country. The Parliament Powers and Privileges Act of 1953  is very clear on the powers of parliament. Section 7 of the Act states that the immunities and powers of members of parliament will be those conferred by this act and those exercised by the UK House of Commons. The Joint Committee on Parliamentary Privilege of the British Parliament of 1999 had the following to say:

Section 229 – “What happens within Parliament is a matter for control by Parliament alone. Such matters will not be reviewed by the courts.  So far as the courts are concerned, they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges”.

Section 232 – “Both Houses have long claimed, and succeeded in maintaining, the right to be the sole judges of the lawfulness of their own proceedings and to determine, or depart from, their own codes of procedure. Courts of law accept Parliament’s claim that they have no right to inquire into the propriety of orders or resolutions of either House relating to their internal procedure or management. Except for purposes of statutory interpretation, the courts do not `look behind the Act’ or consider themselves competent to consider the processes within Parliament preparatory to enactment. In the processes of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality, unless and until it is amended or repealed by Parliament”.

In the landmark Privy Council case of Madzimbamuto v Lardner Burke (1969) Lord James Reid said the following about the powers of the courts vis-a-vis the parliament: “It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid”.

The Latimer House Principles

The UNP has taken the position that the CJ should be removed only through a process based on the Latimer House Principles. The UNP is an important player in the impeachment drama. All the lawyers playing a prominent role on behalf of the CJ, like Wijedasa Rajapakshe, Srinath Perera, Upul Jayasuriya and G.Wanninayake belong to one faction or another of the UNP. As such it is pertinent to examine the argument put forward by the UNP regarding the Latimer House principles. The Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence dated 19 June 1998 had the following to say about the procedure to remove judges – ” In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence and to be judged by an independent and impartial tribunal. Grounds for removal of a judge should be limited to: (a) inability to perform judicial duties and (b) serious misconduct”.

The important phrase here is “to be judged by an independent and impartial tribunal”.

Britain is the head of the Commonwealth and we may perhaps gather what exactly was meant in terms of the Latimer House Principles by studying the British Constitutional Reform Act of 2005 which was promulgated long after the ratification of the Latimer House Principles were formulated. One of the most radical aspects of the British constitutional reform was that a new 12-member Supreme Court was created to be highest court in Britain and it would function outside the House of Lords breaking with centuries of British tradition. The interesting thing is to note how these judges of the Supreme Court were to be removed. Article 33 of the British Constitutional Reform Act of 2005 is as follows:

“A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament”.

That is all this huge 323-page Act of Parliament says about the removal of judges of the Supreme Court. This provision to remove Supreme Court judges basically follows the time honoured British practice. There is no talk of an ‘impartial tribunal’ or about filing charges, hearings and the right to defend oneself. Somebody files a motion in parliament and after due debate, parliament will decide whether to sack or retain the judge. This was the good old system that the British bequeathed to us when we gained independence. Article  52(2)    of the Ceylon Constitution of 1947 was identical to the above quoted article in the British Constitutional Reform Act of 2005. When Ceylon became a republic, the same tradition was followed and Article 122(2)  in the 1972 Republican Constitution also had the identical wording as the 2005 British Act.

Even though the 2005 British Constitutional Reform Act does not apply the so-called Latimer House Principles to the Supreme Court, these principles have been applied to the lower courts. Take Articles 133 and 135 of this Act which lays down the rules for the removal of judges in Northern Ireland. It stipulates that the Chief Justice, Justices of Appeal and judges of the High Court of Ireland hold office during good behaviour and they can be removed only by an address presented to the British parliament in Westminster (not the Northern Ireland Assembly) and before such an address is presented to parliament, the allegations have to be inquired into by a three member tribunal which will recommend whether such an address for removal should be made to parliament. Such a tribunal will comprise of a judge of the British Supreme Court, a sitting or former judge of the Appeal court of England or Scotland and a person from outside the legal profession.

Thus we see that the British Constitutional Reform Act of 2005, gives much greater protection to the “Lord Chief Justice” of Ireland than to a member of the British Supreme Court. We must take care not to be misled by nomenclature here. According to the British Constitutional Reform Act of 2005, England, Ireland and Scotland all have “Chief Justices” but these so called chief justices are all ranked below the 12-member British Supreme Court. The person who holds a position analogous to that of the chief justice in Sri Lanka is the President of the Supreme Court of Britain. The important thing to note is that the Latimer House Principles have been applied by Britain only to the subordinate judiciary – not to the highest court.  The British Judicial Discipline (Prescribed Procedures) Regulations 2006 which complements the Constitutional Reform Act of 2005 confirms this application of the Latimer House Principles to the lower judiciary.

What this means is that the British constitutional experts have given due recognition to the fact that being in the highest judicial body is a different ball game altogether and the rules that may apply to the lower judiciary cannot be applied to the highest court. The Constitutional Reform Act of 2005 shows clearly that the British like the Americans believe that the most competent body to remove judges of the highest judicial body is the legislature. Like the Americans, the British too have placed the fullest confidence in their legislature to be able to make a considered decision to remove a judge of the highest court.

Australia is the current Chairman of the Commonwealth. In Australia, until a few days ago, the provisions relating to the removal of judges of the highest courts was identical to Article 33 of the 2005 British Act. According to Article 72(ii) of the Australian Constitution, judges of the highest court can be removed on an address presented to both houses of parliament. Then just this month, the Australian parliament passed the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of 2012, which on the face of it seems to bring the judges of the highest Australian courts under the Latimer House Principles. Article 13 of this brand new Act, has provided for the appointment of ad hoc ‘parliamentary commissions’ to inquire into the conduct of a judges before impeachment motions are proceeded with. Such a commission will consist of three individuals appointed by the prime minister after consulting the leader of the opposition. At least one member of such a commission should be a former senior federal or state judge.

Even though this new piece of legislation appears to indicate that Australia has implemented the Latimer House Principles in full, closer scrutiny will show a different picture. In this regard the following should be taken note of:

1. The Australian Judicial Misbehaviour and Incapacity (parliamentary commissions) Act No; 188 of 2012, does not alter in any way, Article 72(ii) of the Australian constitution which says that judges of the highest courts can be removed by means of an address in both houses of parliament.

2 The appointment of a Parliamentary Commission to inquire into allegations does not take place automatically when parliament receives a motion to remove a judge. Separate motions have to be presented in both houses of parliament (in the same session) to institute such a parliamentary commission.

3.  There is no permanent Parliamentary Commission to examine impeachment motions – they will be created (if at all) only as and when an impeachment motion comes before parliament.

4. There is no mandatory requirement that the Australian parliament has to appoint such a parliamentary commission every time an impeachment motion comes before them.

5. Section 3(2)(a) of the Australian Judicial Misbehaviour and Incapacity (parliamentary commissions) Act itself states that this Act is not necessary to institute a parliamentary commission to investigate allegations of misconduct against judges which means that commissions of inquiry can be appointed even outside the provisions of this act if the Australian parliament decides that such would be the best course of action.

6. Even if a Parliamentary Commission is appointed to inquire into the allegations against judges, section 3(2) (b) of the Act stipulates that the findings of such commission will NOT be the only means by which parliament will decide whether to impeach the judge concerned. What this means is that the decision of the Parliamentary Commission is not binding on the Australian parliament and whatever the decision arrived at by the Commission, parliament will still be free to do as it sees fit.

Hence what we see here is that even in the Australian constitution, the original Article 72(ii) which allowed for the removal of judges on an address in both houses of parliament is completely intact. That right has not been undermined one whit. All that Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of 2012 has done is to give the Australian parliament the OPTION of appointing a parliamentary Commission to inquire into allegations of conduct. There is also the added convenience that this Act lays down a procedure for such inquiries. The Australian parliamentary commissions to inquire into the conduct of judges will be both non-binding and non-exclusive.

The Burden of Proof

The report of the Parliamentary Select Committee that inquired into the impeachment motion against the CJ came out last week, printed in two thick volumes. When examining the transcripts of the arguments that went on in the PSC, it always seemed to centre on matters of procedure with John Amaratunga asking at one point what the burden of proof was going to be. The burden of proof in impeachment motions has been well established. The Australian Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act which we have just referred to, states in article 19(1) that the parliamentary commission set up under this Act are “not bound by the rules of evidence and may be informed on any matter in any manner it thinks fit”. Article 20 of this Australian Act stipulates that a parliamentary commission must act in accordance with the rules of ‘natural justice’ which was specified as (a) giving the defendant particulars of the allegation being investigated  (b) offering the defendant a reasonable opportunity to make an oral or written statement in his defence (c) offering the defendant reasonable access to any documents or other things  acquired by the Commission for the purposes of the investigation (d) giving the defendant a draft of the report and an opportunity to give comments on the draft report. (If one reads the voluminous report of the PSC in the Shriani Bandaranayake case, all the above requirements seem to have been fulfilled except the last which obviously could not be done because the defendant and her lawyers walked out of the proceedings.)

With regard to the ‘burden of proof’ in impeachment proceedings, the 1933 impeachment trial of Federal Judge Halsted Ritter in the USA is of special significance. During the hearings of the Ritter case, Congressman Hatton W. Sumners, Chairman of the Judiciary Committee of the US House of Representatives explained that impeachment was essentially an ‘ouster proceeding’ as opposed to a criminal proceeding. Agreeing with this view, the presiding officer at the Ritter impeachment hearing Senator Nathan L. Bachman of Tennessee made the observation that an impeachment proceeding before the Senate “has neither of the harshness and rigidity of the criminal law nor of the civil proceedings requiring less particularity”.

Congressman Sam Hobbs another Member of the House of Representatives appearing before the Senate articulated three principles on the burden of proof and evidence in an impeachment trial:

1.       Impeachment trials are not criminal trials in any sense of the word.

2.      The burden of proof in this case is not ‘‘beyond a reasonable doubt’’, as it is in criminal cases.

3.      The presumption of innocence, which the accused has in a criminal case, is not available to a respondent in an impeachment trial.

(Sri Lankans should take particular note of the third point articulated by Congressman Hobbs to the effect that respondents in an impeachment proceeding are not supposed to enjoy even the presumption of innocence.) Congressman Hobbes asserted further – “If judges can hold their offices only during good behaviour, then it necessarily and logically follows that they cannot hold their offices when they have been convicted of any behaviour that is not good. If good behaviour is an essential of holding the office, then misbehaviour is a sufficient reason for removal from office”. During the US Senate trial of Judge Ritter, several Senators made observations which are of relevance here. In a joint statement, Senators Borah, La Follette, Frazier, and Shipstead said:  “We did not,… seek to satisfy ourselves as to whether technically a crime or crimes had been committed,… we sought only to ascertain from these facts whether his conduct had been such as to amount to misbehaviour,…There are a great many things which one must readily admit would be wholly unbecoming, wholly intolerable, in the conduct of a judge, and yet these things might not amount to a crime”.  Senator Elbert Thomas of Utah declared during the Ritter case –  “Tenure during good behaviour is in no sense a guaranty of a life job, and misbehaviour in the ordinary, dictionary sense of the term, will cause it to be cut short…”

In Congressman Sumner’s (The House of Reps Judiciary Committee Chairman) final argument before the Senate in the Ritter impeachment, he made the following points:

1. We do not assume the responsibility of proving that the respondent in this case is guilty of a crime as that term is known to criminal jurisprudence.

2. We do assume the responsibility of bringing before you a case, proven facts, the reasonable and probable consequences of which are to cause the people to doubt the integrity of the respondent.

3. We take the position, first, that justice must be done to the respondent. The respondent must be protected against those who would make him afraid.

4. But we take the position also that when a judge on the bench, by his own conduct, does that which makes an ordinary person doubt his integrity, that judge must go.

5. If confidence in the courts of this country is destroyed it is going to be destroyed from within by the judges themselves. That is one thing which neither the House nor the Senate can permit.

6.  When the people put him (the respondent) there, they said to him, ‘‘All we ask of you is to behave yourself.’’ Good behaviour! What does that mean? It means obey the law, keep yourself free from questionable conduct, free from embarrassing entanglements, free from acts which justify suspicion; hold in clean hands the scales of justice.

7. That means that he shall not take chances that would tend to cause the people to question the integrity of the court, because where doubt enters confidence departs. When a judge on the bench, by his own conduct, arouses a substantial doubt as to his judicial integrity he commits the highest crime that a judge can commit under the Constitution.

8. It is not essential to prove guilt. There is nothing in the Constitution and nothing in the philosophy of a free government that holds that a man shall continue to occupy office until it can be established beyond a reasonable doubt that he is not fit for the office. It is the other way. When there is resulting from the judge’s conduct a reasonable doubt as to his integrity he has no right to stay longer.

(Judge Halstead Ritter was sacked.)

*Courtesy Sunday Island