By Reeza Hameed –

CJ Shirani

The case involving the impeachment of Chief Justice Corona of Philippines has been cited in some places in support of parliament’s move to impeach our own Chief Justice. It was most recently invoked during the recently concluded impeachment debate in parliament when, speaking favour of the motion, our Minister of External Affairs said that the principle is that in respect of impeachment proceedings the responsibility is that of Parliament and not the Courts. He noted that when the Filipino CJ went to court, the Court had declined jurisdiction and said: “This is not a matter for us to get involved in because this belongs to the domain of the legislature”.

Justice Corona’s impeachment did not proceed without controversy because of its political undertones. There it was alleged, inter alia, that

1. the signatories to the complaint had signed it without reading and evaluating its contents

2. failing in their duty to verify the sufficiency in form and substance of the existence of a prima facie case to pursue

3. the inordinate speed with which the complaint was filed prevented such verification

4. the CJ was impeached in respect of collegial decisions.

Interestingly, Justice Corona’s case bears many similarities to that of our own CJ’s case.

The Supreme Court of the Philippines dismissed the case brought by Chief Justice Corona on the ground that the matter had become academic, given the fact that the impeachment trial had been concluded and the petitioner had accepted the verdict of the Senate without any protest and vacated his office. In fact, in the case of Francisco v the House of Representatives of the Philippines, the Supreme Court had previously asserted its power of judicial review even over impeachment proceedings.

The Philippines has never been considered by Sri Lankan constitution makers as a model worth emulating, and the Philippines constitution does not provide any assistance for the interpretation of the impeachment clause in article 107 of the constitution because in the Philippines the “sole power of impeachment” is vested in the House and the “sole power to try all impeachment” is vested in the Senate. However, even in the Philippines, a comparably better safeguards have been built into the impeachment procedure. Impeachment proceedings may be commenced on a “verified complaint or resolution of impeachment filed by at least one-third of all the Members of the House”.  Furthermore, the existence of a bi-cameral legislature acts to avoid the problem of the same body initiating the impeachment proceedings and trying the allegations.

Clearly, Justice Corona’s case provided no precedential value to support the proposition that was being asserted against Mrs Bandaranaike. She has neither refused to stand trial nor walked away from facing the charges, but protested that the proceedings were unfair and did not give her a fair chance to defend the allegations against her.

The suggestion in Sri Lanka that the courts by quashing the Select Committee’s report trespassed into parliament’s territory was made to try to discredit the court’s ruling on the validity of those proceedings. In Francisco, the Philippines Supreme Court rejected similar arguments stating that the political defence argument can never be raised to cover up abuse of power. The Court in that case said: “The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy is patently without basis in fact and in law.” The court also referred to the US Supreme Court’s opinion in United States v Smith (1932) where Justice Brandeis declared that where the construction to be given to a rule affects persons other than members of the legislature, the question becomes judicial in nature.

*Dr. Reeza Hameed, a long-standing member of CRM, is an Attorney-at-Law with degrees from universities in Sri Lanka, the USA and UK. He assisted S. Nadesan QC in a number of historic constitutional and fundamental rights cases including the Pavidi Handa case, the Kalawana case, the Daily News Contempt case, and challenges to the banning of Aththa and the Saturday Review. When the editor of Aththa B.A. Siriwardene, and later Nadesan himself, were charged with breach of privilege of Parliament, Reeza was part of the defence team led by Senior Attorney HL de Silva.