14 November, 2019

Blog

Good Behaviour, Misbehaviour And The Trial By Parliament

Impeachment: Good Behaviour, Misbehaviour And The Trial By Parliament

By Nihal Jayawickrama

Dr.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

Print Friendly, PDF & Email

Latest comments

  • 0
    0

    Thank you very much for the interesting article Dr.Jayawickrama. I have few questions if you could answer.
    1) How far it is relevant for the 117 ministers and MP’s who signed the impeachment motion to read it before sign and submitting to to speaker?…Can they sign it blindly without reading the 14 charges? Isn’t it a fraud to do so and they could be charged for misdemeanor for signing without fully investigating those charges?

    2)For the PSC while Govt. represent 7 the opposition has only 4 members, thereby Govt. has more chance of winning ( 7 to 4)the case even CJ proves her innocence…..or is it the 225 parliament members who vote in this trial ?

    3)Could CJ take this case to International courts if she did not get a fair trial in Sri Lanka ? Thanks.

    • 0
      0

      for second question
      result will be 6:5 in favor of impeachment, if vote is taken. that means one government stooge will have to vote against the impeachment to show the impartiality of the 7 stooges of the government.

  • 0
    0

    This writer was once a palymaker under Felix Dias bandaranayake, who did not know his place at a Ceremonial Sitting of Court and the CJ then had to show him his place, is now trying to interpret the Law. Thanks to this type that had led the country to the present abyss.

    • 0
      0

      It is during his time, in conjunction with Flex Dias and Ian Wickremanayake, the the most atrocious Criminal Justices Commission (Insurgency) Act, which violated all principles of law, including the law of evidence,with provisions that empowered the Permanent Secretary to exercise some important functions of the Judiciary, etc. were enacted to punish whomever they thought should be punished; the infamous Kangaroo Bribery Court of Judge Manohara, which severely only punished alleged bribe takers of 50 cents and Rs.1.However, as it is said that wisdom dawns late, what the writer says on the issue under discussion makes sense and should be given serious consideration.

  • 0
    0

    Gamini’s talking is Koheda Yanne Malle Pol.It may be painful for him to read the truth by NJ.There is a limit for blind shopping.

    • 0
      0

      The Truth would have been upheld today anyway, had they not set the precedent of committing wrong in the first place.

  • 0
    0

    I think in answer to Jayantha’s 2nd question – the ultimate decision on the impeachment is taken by a vote of parliament, based on the findings of the PSC, but only a simple majority is required. Given the composition of the PSC, it is unlikely that there will be a single recommendation – rather there will be both a majority and minority report produced and presented to the house.

    The government have been careful to select individuals who have not signed the original motion to serve on the PSC, but I think it is problematic that these 7 people are all ministers (and hence representatives of the executive) who wrote and agreed the charges against the CJ.

    To Jayantha’s final question – I don’t know the legal answer, but I think the government’s approach to this matter will result in Sri Lanka losing in the court of international opinion. This won’t help the CJ, but will definitely hurt the rest of Sri Lanka.

    • 0
      0

      Thank you Lankan Thinker for your answer. Also I have few more to clarify.
      1)the opposition say that 2 out of 7 govt. PSC members had previous trials under current CJ and this does not qualify for them to be in the seven (7). I think this is a valid request. What is your opinion?

      2)CG says she plans to bring seven Lawyers and 700 witnesses to this case….Can she do so or there should be a limit to this? Also how about the Govt…Are any lawyers or legal aids could represent govt?also?

      3)Is there a time period to end this case ?

      Also if you or anybody could answer to my previous question (1) along with these will be helpful. Thank you.

      • 0
        0

        Jayantha – with regard to your original question 1, if it can be proven that a significant number of MPs signed the motion without being aware of its contents, this is another procedural error that significantly weakens the government’s case. However, I am not a legal expert, so have no idea if the MPs could be punished by the criminal courts for this action. It is more likely that they can be censured/fined by the speaker but I doubt it will come to that since now that the motion is public, proving that they signed it without reading it will be very difficult.

        With regard to the government appointments to the PSC, my view is that none of them should be allowed because as ministers they are part of the executive that is bringing the charges against the CJ. If it is the case that two of them have had judgements against them by the CJ, that is further grounds for them to recuse themselves from serving on the PSC. Expecting such honourable behaviour on the part of the government appointed PSC members would be optimistic in the extreme.

        Your next two questions are interrelated since the number of lawyers and witnesses the CJ brings will have a bearing on the time taken for the case. I think the constitution allows for anyone subject to impeachment charges to defend themselves in person and/or with the help if appointed representatives (I don’t think there are limits to how many representatives one might bring). It will be up to the PSC chairperson to make sure they proceedings are not delayed by time wasting on part of the CJs defence team or the other committee members. One mechanism to improve the behaviour of all parties would be to make the PSC sittings public (including live TV coverage) so that all parties know they will be subject to the judgement of public opinion as much as the law itself. Regarding the time limit for the PSC deliberations, I think this decided through discussion between the speaker and the party leaders (or perhaps the PSC members) since it will be necessary to schedule the final vote on the impeachment motion on the parliamentary order paper.

        Ultimately all these discussions are likely to be mere academic exercises. As Nihal Jayawickrama notes in his article, there is no evidence that the government cares about what anyone thinks. It is a shame because whatever the outcome of these proceedings, the lack of care for making sure justice is seen to be done, means that I don’t think any reasonable person could think that justice was done.

        • 0
          0

          Thank you Lankan thinker for the info. It’s going to be exciting with live TV broadcast (hope we’ll have international telecast…and in google too) to witness the trial.

    • 0
      0

      If these are ministers they would have approved at cabinet level before raising the motion in parliment. Hence they are party to the motion.

  • 0
    0

    14th February what was that independence day???

    I would safely say they are all in it because of the number of checkered characters who pretend to be the guardians of liberty.

    It’s all in how much they make in this event and the future.

  • 0
    0

    Dr.Jayawickrama says that the government has chosen to ignore the internationally accepted norms and standards. This regime does not care for values or standards be they accepted locally or internationally. They are prepared to follow only “values and standards ” that suit their purposes- to deceive the people and perpetuate the familial rule.

    • 0
      0

      It is during the time of Felix, Ian Wicks and NJ trio that for the first time in Sri Lanka’s history that accepted international norms and standards of law and justice were ignored and violated prompting international organisations like the Amnesty International to intervene.

  • 0
    0

    Illuminating article.

  • 0
    0

    Nihal Jayawickrema is the last person on earth qualified to write on this matter.

    His master Felix appointed politician Jaya Pathirana to the SC.

    Nihal was ordered by the SC to go and sit in a back row when he was sitting with SC judges at a public ceremony.

    Nihal J got his face muddied when he tried to dispute what H L Gunasekera wrote in his book The lore of the law, where corruption among SC judges were discussed involving HNG Fdo and TS Fernando, his uncle.

    What we see with Shranie B case is corruption getting exposed because unlike those days of HNG Fdo now both politicians and judges do not know how to catch fish one by one without emptying the pond. Greed is so much, power is so much they do not know moderation without going to extreme.

    Mahinda R offering CJ B’s husband a job and CJ B allowing hubby to accept it are both stupid and arrogant acts.

    There is no doubt that impeachment is punishment for not supporting govt in court work or JSC appointments….

    CBK appointed her as SC judge, but with what justification???

  • 0
    0

    Can one find two MPs from the 117 who signed, who does not have some charge of corruption, misappropriation, rape or some malpractise? If so how can the Govt. maintain a charge against the CJ?

    • 0
      0

      The people will have to rise soon to impeach the whole of this corrupt bunch.

    • 0
      0

      The two who got away from both the 117 and the PSC are Basil and Namal Rajapakse. Someone has to think that the 117 and the PSC were taken on a ride by the Pakse clan…Anybody’s guess.

  • 0
    0

    Apparently Ian Wickramanayake was …

    No “apparently” comments – CT

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
    http://colombotelegraph.com/comments-policy/

  • 0
    0

    The CJ should call each and every one of the signatories to attend as witnesses and question them on how they became aware of the facts underlying the allegations, where they got the evidence from, whether they discussed the allegations among themselves before signing the motion and presenting it to parliament, who advised them to make the allegations in the way they were drafted, does any of those signatories have a spouse or a member of the family who has been charged with an offence or convicted of one, and so on.

    Having made the allegations some of them might be busy engaged in their normal work, such as giving commentaries, but that should not prevent them from attending the hearing and be available for questioning.

Leave A Comment

Comments should not exceed 300 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically shut off on articles after 10 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.