By Colombo Telegraph –
Sri Lanka has stated in its Fourth Report on the implementation of the International Covenant on Civil and Political Rights (ICCPR) submitted to the Human Rights Committee of the United Nations in 2002 that proceedings of a Parliamentary Select Committee (PSC) on the impeachment of judges of the Supreme Court and Court of Appeal are subject to review by the courts. The report states: “Indeed nowhere either in the relevant constitutional provisions or the standing orders seeks to exclude judicial scrutiny of the decisions of the inquiring committee. Thus, it is envisaged that if the inquiring committee were to misdirect itself in law or breaches the rules of natural justice its decisions could be subject to judicial review.” The Chief Justice, Dr. Shirani Banadaranayake, cites the report in her application No. CA 411/2012, made to the Court of Appeal to quash the report of the Select Committee. For the benefit of our readers, we reproduce the relevant paragraphs (paragraphs 300 to 303) of Sri Lanka’s Fourth Report.
300. Standing Order 78A provides that where notice of a resolution for the presentation of an address to the President for the removal of a Judge from office is given to the Speaker in accordance with Article 107, the Speaker must entertain such resolution and place it on the Order Paper of Parliament. But such resolution cannot be proceeded with until after the expiration of a period of one month from the date on which the Select Committee was appointed. Paragraph 2 of the Standing Order that deals with appointment of such a Select Committee requires the Speaker, to appoint a Select Committee with a minimum membership of seven Members of Parliament for this purpose. The Select Committee is required to transmit to the Judge concerned a copy of the resolution setting out the allegations of misbehaviour or incapacity made against him. The Judge is compelled by the Standing Order governing the functioning of the Select Committee to make a written statement of defence within a stipulated time period. Moreover, the Judge has the right to appear before the Select Committee to be heard either in person or via representative and adduce evidence, oral or documentary, in disproof of the allegations against him.
301. At the conclusion of the investigation made by it, the Select Committee must within one month of the commencement of its sittings report its findings together with minutes of evidence taken before it to Parliament. It may also make a special report of any matters, which it may think, fit to bring to the notice of Parliament. If however, the Select Committee is unable to report its findings to Parliament within the stipulated time limit, the Committee must seek the permission of Parliament for an extension of a further specified period of time, giving reasons for it. Where the resolution for the presentation of an address to the President is passed by Parliament, the Speaker must present such address to the President on behalf of Parliament.
302. On the previous occasion the Human Rights Committee examined Sri Lanka’s periodic report, it expressed concern on the compatibility of the impeachment process with the scope and sprit of Article 14, since it would compromise the independence of the judiciary. As stated above Article 107 a judge can be removed only on “proved grounds of misbehaviour or incapacity” and the standing orders allows for the judge in question defend himself either on his own or retaining a legal counsel, none adherence to the rules of natural justice by the inquiring committee would be attract judicial review. Indeed nowhere either in the relevant constitutional provisions or the standing orders seeks to exclude judicial scrutiny of the decisions of the inquiring committee. Thus, it is envisaged that if the inquiring committee were to misdirect itself in law or breaches the rules of natural justice its decisions could be subject to judicial review.
303. Further, it is the position of Sri Lanka that an impeachment process where the legislature plays the principal role does not by itself contravene the provisions of Article 14 of the ICCPR. In fact the United Nations Basic Principles on the Independence of the Judiciary seem to approve this type of mechanism, since provisions that deal with disciplinary proceedings against judges state “Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings”.