Impeachment: Good Behaviour, Misbehaviour And The Trial By Parliament
By Nihal Jayawickrama –
On 14 March 1984, Mr Neville Samarakoon, the first Chief Justice to be appointed directly from the unofficial bar within living memory, made an ill-advised speech at an inappropriate venue. President Jayewardene, who had appointed him some six years earlier, decided that he should be removed from office. Article 107 of the 1978 Constitution provided that a Judge of the Supreme Court shall hold office during good behaviour and shall not be removed except by an order of the President made after an address of Parliament had been presented to the President for such removal on the ground of proved misbehaviour or incapacity. That Article also required Parliament to provide, by law or by standing orders, for all matters relating to the presentation of such an address, including the procedure for the investigation and proof of the alleged misbehaviour or incapacity.
What the Constitution contemplates, therefore, is a three-stage procedure. The determination whether the alleged offence of misbehaviour has been proved; which is a judicial act. The presentation of an address by Parliament; which is a legislative act. The removal of the Judge from office; which is an executive act by the President. The first stage involves the recording of evidence, due deliberation, and an independent and impartial determination by the application of pre-existing rules and objective standards. In other words, it involves the exercise of judicial power.
Article 4 of the Constitution states quite explicitly that the judicial power of the People shall be exercised by courts, tribunals and institutions created and established or recognized by the Constitution, or created and established by law. The single exception is in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, when the judicial power of the People may be exercised directly by Parliament according to law. The question whether a Judge is guilty of misbehaviour is not a matter that relates to parliamentary privileges, immunities or powers.
It was only after impeachment proceedings had commenced that the then Government realized that Parliament had failed to provide, by law or standing orders, the procedure for the investigation and proof of the alleged misbehaviour. In India, at that time, the Judges Inquiry Act 1968 required a committee appointed to investigate into alleged misbehaviour to consist of three members chosen by the Speaker – one from among the Judges of the Supreme Court, one from among the Chief Justices of High Courts, and one who, in the opinion of the Speaker, was a distinguished jurist. However, on 4 April 1984, a new standing order 78A was hurriedly drafted and adopted. It empowered the Speaker to appoint a select committee of seven members of Parliament to investigate and report its finding on the allegation of misbehaviour. It was a blatant contravention of Article 4 of the Constitution. A Bill that sought to achieve what the standing order provided for would have required not only a two-third majority in Parliament, but also approval by a majority at a referendum.
At the first meeting of the select committee, three of its members, Sarath Muttetuwegama, Anura Bandaranaike and Dinesh Gunawardena, raised a preliminary objection that the committee could not conclude that there was “proved misbehaviour” unless it had previously been judicially determined. However, the majority of the committee, who were drawn from the ranks of the government parliamentary group, decided that “they had no alternative at that stage but to go into the matters referred to them by the Speaker”. In a separate dissenting report submitted at the conclusion of the proceedings of the select committee, these three members urged the President to refer to the Supreme Court for an advisory opinion the question it had previously raised. They also expressed their strong view that the standing order should be amended on the lines of the Indian law where the process of inquiry that preceded a resolution for the removal of a Judge was conducted by Judges chosen by the Speaker from a panel appointed for that purpose. That was not done then, nor thereafter.
The determination of the question whether or not a judge is guilty of “misbehaviour” is neither legislative nor executive in nature, but involves the exercise of the judicial power of the people. Much water had flowed under the bridge since 1984. In India, the Judicial Standards and Accountability Act 2012 now enables Parliament to proceed with a resolution for the removal of a Judge only after the President has forwarded to it the report of the National Judicial Oversight Committee which consists of a retired Chief Justice, a Judge of the Supreme Court, the Chief Justice of a High Court, the Attorney General, and an “eminent member” nominated by the President. In Europe and in many countries on other continents, judges are disciplined by independent Judicial Councils, and not by the legislature.
The Judicial Integrity Group, a representative group of Chief Justices and Senior Justices from both common law and civil law systems, which has been mandated by the United Nations to develop a concept of judicial accountability, and which is at present chaired by Judge Weeramantry (and of which I am the Coordinator), has recommended the following, as part of “Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct”:
(a) The power to discipline a judge should be vested in an authority or tribunal which is independent of the legislature and executive, and which is composed of serving or retired judges, but which may include in its membership persons other than judges, provided that such other persons are not members of the legislature or executive.
(b) 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.
(c) Where the legislature is vested with the power of removal of a judge, such power should be exercised only after a recommendation to that effect of the independent authority vested with power to discipline judges.
This is now the contemporary international standard and reflects the prevailing position in nearly all the democratic countries of the world.
The Government has chosen to march to the beat of a different drummer. It has chosen to ignore internationally accepted values and standards. It has chosen to violate the mandatory provisions of its own Constitution and laws. Indeed, that has been the unfortunate legacy of the presidential system of government in our country. Whereas the Prime Minister under previous constitutions sat in Parliament and was answerable for all his or her actions, the President is accountable to none. Moreover, the President is the source of all patronage. Since 1978, the extension of that patronage, and the desire of many to benefit from that patronage, has led to the undermining and eventual destruction of the integrity of almost every institution in our country, from the public service to the non-governmental sector, from the media to the legal profession, from the Opposition in Parliament to the Judiciary.
There have been, in the past, disagreements, cold war, and even conflicts between the judiciary on the one hand, and the executive or the legislature on the other. However, it is not without significance that the summoning of judges of the Supreme Court before select committees of Parliament, with a view to disciplining or removing them, is a phenomenon associated with the presidential system. It had never happened before in independent Sri Lanka. The political culture then was quite different from what it is now, and those who exercised state power then knew and recognized where the red lines were drawn.
*Dr Nihal Jayawickrama, – A former Attorney General, and Permanent Secretary to the Ministry of Justice 70-77 government. He is the Coordinator of the Judicial Integrity Group