By Kamal Nissanka –
The impeachment of the Chief Justice of Democratic Socialist Republic of Sri Lanka is by every mean seems to be a judicial function. In this context it is vital and interesting to see how the Select Committee appointed by the Speaker of the Parliament acquired its jurisdiction.
Article 4(c) of the 1978 Constitution stipulates on judicial power of the people as follows:
Article (4)c-the judicial power of the People shall be exercised by Parliament through courts, tribunals, and institutions created and established by law, except in regard to matters relating to the privileges , immunities and powers of parliament and of its members wherein the judicial power of People may be exercised directly by Parliament according to law.
According to the above article judicial power of the people is unequivocally vested in the courts, tribunals and institutions created by law (e.g.: Rent Boards)
According to article 4© of the constitution, Parliament can act judicially in regard to matters relating to privileges , immunities and regarding powers of Parliament and its members.
A literal interpretation of the Article 4© clearly manifests that the Parliament did not possess jurisdiction to investigate an impeachment motion when the constitution was passed in 1978.
Then a question arises as to whether the parliament could grab judicial power directly for a subject which is not falling under privileges, immunities.
Impeachment of Superior Court Judges
It is clear that the Article 107(1) is regarding appointment of judges while Articles 107(2) and 107(3) are regarding impeachment of a judge.
Article 107(2) states as follows: Every such judge shall hold office during good behavior 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 misbehavior or incapacity.
Provided that no resolution for presentation of such an address shall be entertained by the Speaker or placed in the on the order paper of parliament, unless notice of such resolution is signed by not less one third of the total number of members of parliament and sets out full particulars of alleged misbehavior or incapacity .
Article 107(3) states as follows: Parliament shall by law or by standing orders provide for all matters relating to the presentation of such an address including the procedure for passing of such resolution the investigation and proof of the alleged misbehavior or incapacity and right of such judge to appear and to be heard in person or by representative .
When one scrutinizes the above two Articles of the constitution the steps that would be taken for an impeachment motion would be in two stages
a) Presentation a motion signed by at least 75 members. (b) Entertainment by the speaker (c) Placing that in the order paper
a) Investigation of alleged misbehavior or incapacity. (b) Judge has the right to be heard in person or representation
At the time or just immediately after the enactment of 1978 constitution there had not been any law or Standing Orders to initiate an impeachment process as sighted in Article 107(2) of the constitution until 4th April of1984.
Law or Standing Orders?
Instead of drafting a bill first and then making it an Act for the impeachment process incorporating “an investigating body or board” comprising of retired judges and eminent personalities, then government opted to introduce Standing Orders in this regard in 1984.
It was to impeach former Chief Justice Mr. Neville Samarakoon that the parliament under President J. R. Jayawardene had passed the respective Standing Orders. If the investigation elaborated in the Article 107 (3) is done by a tribunal, body or board created by law passed by parliament as mentioned in the same article that would have been in par with Article 4© of the constitution.
Instead the parliament by creating Standing Orders had grabbed the judicial power unto itself in the impeachment process contravening or violating Article 4c of the constitution. Thus the then government had also violated the concept of separation of powers by installing “judicial power” regarding impeachment in the legislature.
Standing Orders -78 A
The following Standing Orders which were passed by United National Party government in 1984 will applied to the impeachment process of the Chief Justice.
78A(1)Notwithstanding anything to the contrary in the Standing Orders , where notice of a resolution for the presentation of an address to President for the removal of a judge from office is given to Speaker in accordance with Article 107 of the constitution , the Speaker shall entertain such resolution and [lace it on the Order Paper of Parliament but such resolution shall not be proceeded with until after the expiration of a period of one month from the date on which the Select Committee appointed under paragraph (2) of this order has reported to Parliament.
(2)Where a resolution referred to in paragraph (1) of this order is placed on the Order Paper of Parliament, the Speaker shall appoint a Select Committee of Parliament consisting of not less than seven members to investigate and report to Parliament on the allegations of misbehavior or incapacity set out in such resolution.
(3) A select committee appointed under paragraph (2) of this Order shall transmit to the Judge whose alleged misbehavior or incapacity is the subject of its investigation, a copy of the allegation of misbehavior or incapacity made against such judge and set out in the resolution in pursuance of which such select Committee was appointed, and shall require such Judge to make a written statement of defense within such period as may be specified by it.
(4)The Select Committee appointed under paragraph (2) of this Order shall have power to send for persons, papers and records and not less than half the number of members of the select committee shall form a quorum.
(5) the judge whose alleged misbehavior or incapacity Is the subject of the investigation by a select Committee appointed under paragraph (2) of this Order shall have the right appear before it and to be heard by , such committee in person or by representative and to adduce evidence ,oral or documentary in disproof of the allegations made against him.
(6) At the conclusion of the investigation made by it, a select committee appointed under paragraph (2) of this order shall within one month from commencement of the sittings of such select Committee, reports its findings together with the minutes of evidence taken before it to Parliament and may make a special report of any matters which it my think fit to bring to the notice of Parliament.
Provided however, if the select Committee is unable to report its findings to Parliament within the time limit stipulated herein the Select committee shall seek permission of Parliament or an extension of a further specified period of time giving reason therefore and Parliament may grant such extension of time as it may consider necessary.
(7)Where a resolution for the presentation of an address to the President for the removal of a Judge from office on ground of proved misbehavior or incapacity is passed by Parliament, the speaker shall present such address to the President on behalf of the parliament.
(8)All proceedings connected with the investigation by the select Committee appointed under paragraph (3) of this Order shall not be made public unless and until a finding of guilt on any of the charges against such Judge is reported to Parliament by such Select Committee.
(9) In this Standing Order “Judge” means the Chief justice, the President of the Court Appeal and every other judge of Supreme Court and Court of Appeal appointed by the President of the Republic by warrant under his hand.
A question regarding the jurisdiction of the Parliamentary Select Committee (on impeachment) created under Standing Orders 78A arises as they were passed by parliament in 1984 in violation of Article 4(c) of the Constitution. The exercising of “judicial or quasi judicial power” by a body of the legislature is in violation of the theory of separation of powers. As the majority of the Select Committee members belong to the government party they are naturally influenced and interfered by their political leader. Thus prosecutor becomes the judge. (See Sinno Appu Vs Rajapakse(1928)30NLR 348)
J.C.Weliamuna- Impeachment of CJ-An Unconstitutional Witch Hunt (Colombo Telegraph)
Dr. Nihal Jayawickrama – Behavior, Misbehavior and Trial by Parliament (Colombo Telegraph)
*Writer is the Secretary General of the Liberal Party of Sri Lanka, Attorney-at-Law, BA (Hon), PgD(International Relations)
justice / November 14, 2012
A reasoned opinion.
Any government can arrogate any power to itself by parliamentary majority.
This is how bills which are ultra vires the constitution,have been proposed,and struck down by the supreme court.
nimalsiri / November 14, 2012
Mr Nissanka, you are an honourable lawyer and Secretary of the Liberal Party. Please ask your leader, Dr. Rajiv Wijesinghe to take up this matter in Parliament and with the President. Otherwise, the only conclusion will be that the Liberal Party gets you to make noises but the Leader is silent before the President.
Ranjan / November 14, 2012
The impeachment against CJ is not only against her, but against all the democracy,freedom, justice and future hope of every Sri Lankan. Everybody should unite and support the CJ to win this trial. Otherwise we all will end up in another nandhikandal lagoon. Remember Velikada prison riot and Kahawatta murders. It is already in south now.
Jayantha / November 14, 2012
The prison massacre was carried out for four main purposes.
1) To destroy govt. contract killers and informants in prison and destroy their files.
2) To send a message to opposition and general public that Govt. still could carry out massacres and instigate riots similar to 1983 and still could use strong arm methods to suppress any opposition to dictatorial regime and inculcate fear tactics.
3) To send a message to Govt. goons, boot lickers and crossovers not do anything against the regime, failing so they will have to face same repercussions.
4) Long term plan to bring prison under defense ministry.
Isn’t this called a dictatorial regime? What they do in North is coming to south to roost. Hi time to think serious.
Antany Peter / November 17, 2012
The billions of Chinese and Indians are moving forward, but the Sri Lankans are still fighting since 1948. The Sri Lankan politicians are disgraceful and shame for the 21st century humanity. Currently the country is not heading in the right direction. I urge the Sinhalese to steer the country into the right path. The Sri Lankans have removed the unelected terrorists, now they have to remove the elected terrorists. The Sinhalese have enough intellectuals to accomplish this task. However, the Tamil political leadership have been removed by the Indians through the Tamil armed groups to accomplish India’s interests. Today the Tamil leaders are under the grip of India and Western Countries. It is a real disaster for the Tamils and Sri Lanka. I urge the Tamils to build their political leadership who can think on their own. The government must help the Tamils to build their political leadership or disaster will carry-on forever. At the moment the government is enjoying the Tamils’ weakness, but in the long term it will work against the whole country, and put all the Sr Lankans behind the other Asians. If the Sri Lankans are not careful their country will become the hell of Asia.
Nalin Fernando / November 17, 2012
Combating against corrupation is major part and parcle of Struggle for Democracy and human rights in Sri Lankan.Corrupation undermine democracy. Honest Judges & CLEAN COURT OF JUSTICE WILL BE THE PILLAR OF DEMOCRACY.Moral intergrity of Judges of like CJ,is important postion FAIR PLAY JUSTICE for the public.
laksiri / November 17, 2012
it is time to clear corrupted judiciary before any other matter.time has come for her to go home.when she came to power from back door without having experience how to apply the basic law,she delivered many basically fundamentally and factually wrong judgments serious of damage to public interest,more she was politically motivated secured former president and his wrong doing people.now she is going against the will of 90% people to satisfied international community damming the country parliamentary system and will of the majority people who suffered over 50 years due to so call academics and wrong political leadership.if every steps of decision making by people’s appointed president is challenged in supreme court in future ,she will delivered wrong judgments.her husband case is pending any respectable person in the judiciary will leave in this point.
D.B Adikari / November 17, 2012
Mr Peter…you have come out with reality of excatly Sri Lankan situation of our society has been challange by the democracy refoms and social forces.
Globl blance of power has Change,new histrocial conditions need sense of mission of new democratic politics and new political party come into being an Island.
Undoubatly all main political parties SL are working without political-economy-social Strategy.Our in a delicate position in presenting political accounting which must have come first.
Here we clearliy sought to distinguish form OLD democracy revoluation and but yet remain loyal to ongoing Parlimentry democracy to carry task forwared by people-orinted politictics and new political party vision and sense of mission.
At the same time sum up chatcter of democratic main task and its main points as past unfinished old democray order and disassociation old politics by means of an expression of qualified support new histrocial conditions.
There was much chaos during last 64 yeras our Parilementry struggle for Democracy ,political classes who rule and in power battle was only survival of Few Leadres or Family Governace,when they up office of Power.On other one hand they( ruling political class) not been as farsighted as Leaders as China and india.Our Leader and Political class who never saw the need to inject new and emerging social classes of rural poors and other section socity to inject new vigor Democrtaic Revoluation or reform of Parlimentry system of democracy.
Emerging new Democracy forces need to occupying all politicial econimic and social areas of north and south people.
If such a large democrtaic maneuver shold occur ,what would be new politics be perpered to do?
We would be prepered to resist old economy-political order for protracted period by democrtic people forces’s by struggle of democracy engaging in a long-term struggle until final victory.
This propsed task and path of democracy take TIME and of couse,we would have sacrifec lives of people and leaders of new politics.
But this is something which we would have to contemplate.
Dispite new politictics and its apparent explicitness our democtaic path presentation was subtle approch to a discussion of stratgic view of Sri lankan Parlimintry path of capitalism.
In externally our region we were allied with friendly countries under a looming threat of New Golbe change of blance of power.
We must seek main social classes resurrance by transforming democratic changes, pledges into a NEW LEGAL DEMOCRTAIC OBLIGATION all ethanic groupe and opperess classes headed by rural and urban poor as driving force of Democractic struggle.