30 September, 2020

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‘Heisenbergian-Interpretation’ Of The Historical Court Order

By Hema Senanayake –

Hema Senanayake

On January 01, 2013 the Supreme Court determined that Parliamentary Select Committee appointed to investigate the misbehavior or incapacity of Chief Justice, was exercising judicial powers and such powers cannot be conferred on it by Standing Orders which are not law. It seems for many people this subject is complicated.

Physicist Werner S. Heisenberg won the Noble prize for his uncertainty principle in physics in 1933. His view was that any profound subject can be simplified so as to understand by any average person. Yet simplification does not devalue the profoundness of the subject instead does the opposite.

Usually many people find it difficult to read a Court Order of the Supreme Court and it is a subject left to lawyers and intellectuals. But the Court Order given by the Supreme Court on January 01, 2013 in regard to the question referred to it by Court of Appeal is a historical one and I think must be understood even by general citizenry of the country. In this regard “Heisenbergian-interpretation” or simplification of the Court Order would be appropriate and that is the goal of this essay.

Any citizen of the country has legal and constitutional rights. The government must protect these rights of individuals. Parliament become “supreme” if the parliament upholds those rights of people. It cannot become “supreme” if it violates constitutional rights of any person. Dr. Shirani Bandaranayake is a citizen and also the Chief Justice. Her legal and constitutional rights must be respected and uphold by the parliament.

Now the Supreme Court says that “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” (Page 23 of the Court Order).

The point is very clear. If there is an investigation against you and the findings of that investigation is going to affect your legal/ constitutional rights then the investigation must be done by a body that has powers conferred on it by law. Can anybody disagree with this observation? I do not think so. Therefore, now, our question narrows down as to how such powers conferred on any court, tribunal or “other body.”

In the Court Order of the Supreme Court it is stated that “Such legal power can be conferred on such court, tribunal or body only by an Act of Parliament which is “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.”

This point is also very clear. Standing Orders of Parliament are not law and as such Parliamentary Select Committee (PSC) established under Standing Orders cannot have legal powers to make a decision or findings after an investigation that affects to the constitutional rights of the Chief Justice. Now the question does arise is that, on what grounds the Supreme Court decided that Standing Orders are not “law?”

In the Court Order it is stated that “The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by “law” (page 23).

All these are very clear now. But it is interesting and important to understand how PSC findings affect the legal rights of the Chief Justice because if PSC findings are not going to affect the legal rights of the person PSC can do fact finding investigation. But the Supreme Court decided that PSC’s decision affects the legal rights of the Chief Justice and hence PSC is exercising judicial power; but such power is not conferred on it by “law.” Resolving this question led to its decision. Therefore let us investigate this point.

Petitioners have contended that Standing Order 78A confers judicial power on the Select Committee to investigate the allegations of misbehavior or incapacity set out in the resolution presented to the Speaker in terms of Article 107(2) and give its findings which may include a finding of guilty of an allegation or allegations made against a Judge is ultra vires Article 4(c) of the Constitution. They have further contended that judicial power cannot be conferred upon the Select Committee by Standing Order which is not Law. The Supreme Court made its order in favor of this argument.

The Court Order determined that (1) PSC is exercising judicial powers and (2) such judicial powers cannot be conferred upon PSC by Standing Orders. I have not seen anybody arguing that judicial powers can be conferred to any investigative body by Standing Orders. Therefore our question narrows down to ascertain whether the PSC is exercising judicial powers. The Court has determined that PSC is exercising judicial powers. How did the Court determine it?

According to Article 107(2) of the Constitution the President shall make an order to remove a judge after an address of Parliament. There is a certain condition that should be fulfilled in order to facilitate the address. Article 107(2) states that “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;

In the Court Order it is stated that “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. If the finding is that all or some allegations have been proved, it is a final decision on which an address of Parliament could be made. The finding that the charges have been proved is the indispensable legal basis for the address.” (Page 23 of the Court Order). I think this point is clear to anybody.

The Court further observes that “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…In the case of a finding made by a Select Committee, Parliament has to take cognizance of such finding that the allegations against the Judge have been proved and make an address of Parliament to be presented to the President for the removal of the Judge. Thus, the final decision of the Select Committee is what that eventually takes effect; the finding of the Select Committee is not subject to confirmation or approval by some other 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.

Thus a finding after the investigation contemplated in Article 107 (3), that the allegations against the Judge have been proved is a final decision which directly and adversely affects the constitutional right of the Judge to continue in office.

If any investigative body makes a finding or a decision that affects the legal rights of a person then such investigative body is exercising judicial powers, period. PSC’s decision is the final decision that affects to the legal rights of the Judge. In that sense the Court has decided that PSC is exercising judicial powers. This is the important part of the Court Order. The rest of the argument is commonsense. If PSC is exercising judicial powers then such powers cannot be conferred on it by Standing Orders; judicial powers can be conferred on any investigative body by an Act of Parliament.

If any investigative body has been conferred judicial powers by law then the law provides the “right to be heard” which aspect clearly absent in the PSC proceedings.

If any person’s legal rights adversely affect by any investigation then during such investigation the person who is the subject of investigation must be “heard.” The word “heard” has a definitive meaning. The right to be “heard” cannot be based on subjective thinking (or whims and fancies) of the investigating body. In the Court Order this fact is observed as follows.

“The matters relating to proof being matters of law, also will have to be provided 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.” (Page 24 & 25 of the Court Order).

It further mentioned that “The right of the Judge under investigation to appear at the investigation and be heard being a fundamental-principle of natural justice should also be provided by law with a clear indication of the scope of the “right to be heard” such as the right to cross examine witnesses, to call witness and adduce evidence, both oral and documentary.” (Page 25 of the Court Order). The Court clearly observed that “The exact nature of the investigation contemplated by Article 107(3) of the Constitution is a question which has not received judicial attention.

These aspects in regard to the “right to be heard” are absent in the PSC proceedings; this fact is now widely known. I have not seen anybody arguing that the PSC can define the scope of the “right to be heard” according to the subjective thinking of its members. This question must have been asked by the Speaker himself. The country must know whether he stands for the proper “rule of law” or a different kind of law determined by the subjective thinking of the members of PSC.

If any person wants to reject the determination of the Supreme Court he or she has to prove that the PSC was not exercising judicial powers. Again that person has to prove it before the Court not anywhere else.

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Latest comments

  • 0
    0

    Excellent.
    Reading the Article is like going through step by step of solving a mathematical equation.

  • 0
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    Thanks Mr. Senanayake for the excellent clarity your analysis serves, but the million dollar question is to what extent does this create awareness of the crisis to the rural folk of Sri Lanka. It is essential to take cognisance of the fact that the majority of the Sri Lankan populace inhabit the rural areas. How can you disseminate this to reach the rural folk in a language that they undersand. Food for thought!

  • 0
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    Many thanks for the simplifying so as to anybody can understand. Please translate this article into Sinhalese and Tamil languages and published in newspapers.

    Leel

  • 0
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    Many thanks for the simplifying so as to anybody can understand. Please translate this article into Sinhalese and Tamil languages and publish in newspapers.

    Leel

  • 0
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    Hema Senanyake says ‘If any person wants to reject the determination of the Supreme Court he or she has to prove that the PSC was not exercising judicial powers. Again that person has to prove it before the Court not anywhere else.’

    Thats strictly not correct. Please read the judgment again. The Supreme Cout was very careful to avoid saying that the Select Committee exercised judicial power. Instead, what the court said was that the impeachment process involved the exercise of legal powers.
    Its a n important distinction.

    So the last paragraph should be revised as follows; ‘If any person wants to reject the determination of the Supreme Court he or she has to prove that the PSC was not exercising legal powers. Again that person has to prove it before the Court not anywhere else.’

  • 0
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    Mr.Hema Senanayake,

    Brilliant explanation. you are so good. Nobody gave us this logical prove. But, nothing doing to stop the final killing of independent judiciary in Sri Lanka. Even UNP, the main opposition party is joining the illegal debate to cast their vote against and giving some legitimacy to the illegal government rather than boycotting it like JVP & LLSP.

  • 0
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    Dear Chandra G,
    I am only a layman but I agree with your statement “The Supreme Court was very careful to avoid saying that the Select Committee exercised judicial power. Instead, what the court said was that the impeachment process involved the exercise of legal powers. Its an important distinction.”
    In the concluding paragraph you state “So the last paragraph should be revised as followse”. However the same thing said by Hema Senanayake has been repeated without any revision.

  • 0
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    Editror CT,
    Correction. PLease delete “In the concluding paragraph you state “So the last paragraph should be revised as followse”. However the same thing said by Hema Senanayake has been repeated without any revision.”
    Error is regretted.

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