23 October, 2021

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Impeachment: Power Corrupts, God Forbid The Achievement Of That Objective

By MA Sumanthiran

M. A. Sumanthiran MP

Last week we saw an unprecedented action by the Supreme Court. I wonder whether any court, let alone the Supreme Court, has ever before made a ‘request’, without making a coercive order. This perhaps was dictated to by the experience gained on two previous instances. Both involved the former Chief Justice Sarath Silva.

In 2001 when a Motion for his impeachment was presented to the then Speaker Anura Bandaranaike, the Supreme Court issued a stay order restraining him from appointing a Parliamentary Select Committee (PSC) in terms of Standing Order 78A of the Parliament. On that occasion the Speaker ruled that he was not bound by the order of the Supreme Court.

The second was when the Supreme Court presided over by Sarath Silva ordered the lowering of fuel prices. On this occasion the Executive refused to abide by the court order. On both occasions the judiciary was unable to enforce its orders. The reason for this lies in the way the concept of separation of powers ought to work.

The theory of separation of powers obligates each institution of government to respect and work harmoniously with the other two institutions. If not there will be clashes and confrontations between each other and democracy will not be able to function. Therefore it is a sine qua non that each organ leaves the function of the other two organs to themselves without transgressing into the areas, which are the exclusive preserves of those. In such a set up the question as to which organ is supreme does not arise. Each is supreme within its own area of competence, as laid down by the Constitution, which alone is actually supreme.

The Constitution recognizes that the people are sovereign and that their powers of governance shall be exercised by three separate organs: legislative power of the people by the Parliament, executive power of the people by the President and the judicial power of the people by the Parliament through courts, tribunals and other institutions established by law, subject to one exception where in respect to their own privilege the Parliament can exercise judicial power directly. It is this principle of separation of powers that s being breached when Parliament tries to exercise judicial power of the people in matters other than privilege. Standing Orders 78A and 78B were hastily introduced when the UNP government tried to impeach the then Chief Justice Neville Samarakoon QC, which unconstitutionally vested in a Parliamentary Select Committee, certain judicial functions.

This issue as to the constitutionality or otherwise of Standing Orders 78A and 78B has loomed large again in the context of the present efforts to impeach the incumbent Chief Justice. The matter was referred to the Supreme Court by the Court of Appeal for interpretation, since it is the Supreme Court that has been vested with the sole and exclusive jurisdiction of interpret the Constitution. No other institution, not even another court, has been conferred with such power. The Supreme Court, having been properly taken cognizance of the matter, will make a pronouncement within a period of two months as prescribed by the Constitution. In the meantime it is the duty of all others to await that determination and not seek to present the country with a fait acompli.

In other words, when the PSC became aware that the Supreme Court was in the process of considering this matter, it ought to have held its hand without even a prompting by anyone. That is what is expected of a responsible institution. In this case, the Supreme Court acted in an unprecedented manner and made an overt request. It certainly was obligatory on the part of the PSC, in the interest of comity, to immediately stay its proceedings and await the Supreme Court’s determination.

After all it is only the Supreme Court that has the power to interpret the Constitution. Neither the Parliament nor the Executive can do that. If the Executive or the Parliament usurps that function, or effectively prevents the Judiciary from doing that, the whole system of democratic governance will collapse. Perhaps that is precisely what the government wants. They do not want any other institution to check their abuse of power. Therefore it has now become necessary to undermine the powers of the judiciary and take it over, so that it will then have absolute power.

Power corrupts – and we can see that very well. Now they want absolute power! God forbid the achievement of that objective.

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    Mastering yourself is true power.
    Nothing corrupts as much as power.

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    The super 4 letter “W” that super corrupt dictators follow:

    Who ever
    What ever
    Which ever
    When ever

    Some one dance to this tune don’t know if they are dressed up or nude…doesn’t matter o them.

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    Govt has thrown the constitution to the winds and is pontificating on its own power claiming to be the voice of the people. Perhaps a referendum is in order to sort this deadlock.

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    Sumanthiran is criticising the Sri Lankan Supreme Court for what he calls “an unprecedented action by the Supreme Court” in only making “ a request without making a coercive order “ in relation to the petitions that came before it in relation to the impeachment motion against Chief Justice Shirani Bandaranaike. He goes on to lecture about the separation of powers doctrine. He is saying that the three organs of government, namely, executive, parliament and judiciary will have to work harmoniously without transgressing into the areas of the others. He says that the Sri Lankan Parliament is breaching this principle of separation of powers by taking up the motion of impeachment against Chief Justice Shirani Bandaranaike. He also laments that Standing Orders 78A and 78B were hastily introduced when the UNP government tried to impeach the incumbent Chief Justice.

    Sumanthiran, like several other pundits, is questioning the constitutionality of these Standing Orders.

    Sumananthiran is highly critical of the Parliamentary Select Committee for not waiting for the decision of the Supreme Court in relation to the constitutionality or otherwise of these Standing Orders. His argument is that only the Supreme Court has the power to interpret the constitution and neither the Parliament nor the Executive can do that.

    Like a great philosopher he is saying that power corrupts and that Mahinda Rajapakse’s government wants absolute power and goes on to even call for divine intervention to forbid that achievement.

    Sumanthiran is a political novice. He entered Parliament through the back door because of the services he rendered to TNA leader Samapanthan in his capacity as a lawyer. I thought he may be a good constitutional lawyer. But this stupid article convinces me that he is not a good constitutional lawyer either.

    Sumanthiran, being himself an MP, should know that Parliament should itself interprets its own procedural rules and the principle of sovereignty of Parliament prevents any interference from judiciary or for that matter any outside body or person in interfering in the internal affairs of the Parliament.

    If Sumanthiran is a good constitutional lawyer, he should know that there is no complete separation of powers in any Parliamentary democracies based on the Westminster model. Look at UK, Australia and Canada. The principle of “responsible government” has made Parliament the supreme organ among the three different arms of government. That is the reason why you find Members of Parliament take up the dual role of “executive” and “legislature”. That is why you find that only Members of Parliament are appointed as Cabinet Ministers and made answerable to Parliament in relation to the admibnistration of the departments under their control. Judiciary, of course, should act independently, but nevertheless members of the judiciary are appointed by the Executive. Judges are appointed only during good behaviour. If their behaviour becomes questionable, then if they are superior court judges they can be removed with an address of Parliament, and if they are from inferior courts, the body that administers the inferior court judges could remove them.

    In Britain, from where Sri Lanka inherited its parliamentary democracy, the Imperial Act of Parliament 1701 laid down the basic principles relating to the appointment and removal of judges. According to this British statute, the commission of judges (meaning the mandate to function as judges) can be exercised only during good behaviour. It further laid down the rule that it was lawful to remove the commission of a judge upon the address of both houses of Parliament. The generl view is that Parliament can remove a judge notwithstanding good behaviour.

    In the United States, like in Sri Lanka, the federal constitution provides for the impeachment of justices of Supreme Court. This is a two stage process; the first stage is where charges are presented and the House of Representatives determines whether there is sufficient evidence to warrant trial. If so determined, the impeachment motion is put to the House vote which needs only a simple majority. After the passage of the motion at the House of Representatives, which is in fact an indictment of the accused judge based on articles of impeachment, the Senate conducts a trial to determine the accused judge’s guilt or innocence.

    The US Senate trial is similar to a criminal trial and the Senate makes a determination on the basis of the evidence presented at impeachment. A committee from the House of Representatives (called Managers) take upon the role as the prosecutor. An “Impeachment Trial Committee” of Senators acts as the judges and hears testimonies and evidence against the accused judge. These testimonies and evidence are then presented in the form of a report to the full Senate. The trial phase of the Senate ends there. The Full Senate is required to vote on the report and a two-third majority is needed for the conviction of the accused judge.

    In the US impeachment process, there is no role to play for the Supreme Court and the Supreme Court has declined to interfere in the process.

    The process to remove a Supreme Court judge in Sri Lanka is no different to the one put in place in the United States. However, in the absence of a second chamber in Sri Lanka, the House of Representatives take upon itself the role of the Senate.

    In Sri Lanka, instead of the “Impeachment Trial Committee” of the Senate, we have in place the “Select Committee” of the House of Representatives which will act as the trial judge. The Select Committee is required to hear the testimonies and other evidences put forward and will have to make its recommendation on the guilt or otherwise of the accused judge. As in the United States where the full Senate is required to vote by a two-third majority, here in Sri Lanka the full House is required to vote on the recommendation of the Select Committee.

    Given this similarity in the process of the impeachment of a Supreme Court judge in the United States and Sri Lanka, how anyone could argue that there should be a trial by a court or any other judicial body to decide on the guilt or innocence of Chief Justice Shirani Bandaranaike.

    Rightly speaking the Sri Lankan Supreme Court should not have entertained the petitions presented by various interested groups in support of its own Chief Justice Shirani Bandaranike. It should have rejected them outright without even accepting them for consideration in the open court. How can the Supreme Court headed by the accused Chief Justice make a determination in its own cause, namely, the cause of the head of the Supreme Court itself? Does not the principle of natural justice prevents any authority sitting in judgment of its own cause?

    In Australia, section 72 of the Commonwealth Constitution provides a similar procedure for the removal of justices of the High Court of Australia, which is the apex judicial body in that country.

    Section 72 of the Australian Commonwealth Constitution provides:
    “The Justices of the High Court and of the courts created by the parliament —
    (i) ……;
    (ii) Shall not be removed except by the Governor General in Council, on an address from both houses of the parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;
    (iii) ……”

    Like in Sri Lanka, there is no interpretation in the Australian constitution as to whose satisfaction the alleged misbehaviour should be proved or as to what standard of prove is required. Similarly there is no interpretation of the meaning of “incapacity”. These problems have not come up for resolution in Australia perhaps because there had not been any occasion that warranted the removal of an Australian High Court judge in Australia’s constitutional history.

    The Constitution of Australia’s Victoria State contains a constitutional provision for the removal of judges of its Supreme Court. The other Australian States have similar provisions for the removal of superior court judges. In an article on the appointment and removal of judges, the former Australian Chief Justice Anthony Mason. in relation to the Victorian constitutional provision on the removal of judges, said that “it would seem that parliament can remove a judge for any reason it chooses. There is also the possibility that the Crown could remove, without an address, on the ground that misbehaviour itself terminated a judge’s commission”( Sir Anthony Mason. “Appointment and Removal of Judges”, Education Monograph 1, Judicial Service Commission of New South Wales).

    Note the emphasis of Justice Mason that parliament can remove a judge for any reason it chooses. This is also the generally accepted view in relation to the British statute relating to the appointment and removal of judges.

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    One need not be a pundit to understand that as per the constitution, the powers of the people of Sri Lanka are vested in three different institutions namely the Legislative, the Executive and the Judiciary. The legislative powers makes the Laws and the Judiciary safeguards the laws thus made by the legislative power. The laws are presented to the parliament, then argued and once passed, they become a law by the Act of Parliament and proclaimed to the people through the Government Gazette.. There after it the judiciary that safeguards and also interprets the Laws that was thus enacted by the Act of Parliament.

    What Mr. Sumanthiran had said in simple English is that the three institutions of the Socialist Democratic Republic of Sri Lanka should respect each other and work together harmoniously or else democracy will not be able to function smoothly. This we are experiencing now when we hear of the number of murders reported every day

    There is no point in talking of provisions that are in the constitutions of other countries, since Government of Sri Lanka is bound by its own constitution and all members of the Parliament and even the President have taken oaths stating that he ‘do solemnly declare and affirm -swear to uphold and defend the constitution of Sri Lanka’ only.

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    Mr. Sumanthiran’s article seems to be one sided. he fails to look at the wide angel of the indipendence of the judiciary. the independant of the judiciary means ” a court shall work independantly without any interference from other parties and also it shall not be taken away by its own opinions and sentiments”. This impeachment against CJ has been broudgt in since CJ is the authority for the transfer, removal and control of the original court judges and also have the power to inspect call for the case recordes of lower court where her hushand has been charged under Bribary and Corruption Act for misappropriating 29 Million. If Mr. Sumantiran argues that it is OK for CJ to hold that post further then will there be a fair hearing of her husband’s case. What CJ would have done is to ask husbend to be extra creful when doing dealings as her job entirly would depend on the acts of her husband. It is the husband who should be blamed for the impeachment but not the Legislature which had acted constitutionally.
    Judges of the Supreme Court and Appeal Court need not worry about the impeachment since they have a constitutional safegard until they lead a “GOOD BEHAVIOUR” as set out in Article 107 of the Constitution.

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