By Nihal Jayawickrama –

Dr.Nihal Jayawickrama

The current debate on the parliamentary resolution to impeach the Chief Justice appears to be clouded, and sometimes distorted, by several misconceptions.

Is Parliament above the law?

It is believed in some quarters that Members of Parliament are above the law and are not subject to the jurisdiction of the Courts. This belief is entirely misconceived. It is probably due to a provision that was included in the 1972 Constitution which read as follows:

“30. No court or other institution administering justice shall have power or jurisdiction in respect of the proceedings of the National State Assembly or of anything done, purported to be done, or omitted to be done by or in the National State Assembly.”

That provision was included in the context of the National State Assembly being “the supreme instrument of state power” under the 1972 Constitution. There is no provision similar to Article 30 in the present Constitution. Under the present Constitution, Parliament does not enjoy that status.

Is the Anura Bandaranaike ruling relevant today?

The ruling given by the late Speaker Anura Bandaranaike on 20 June 2001 is now being recited, almost like a mantra that would shield Members of Parliament from any intrusion by the Judiciary. On that occasion, the Speaker had received notice of a resolution signed by the requisite number of Members of Parliament from the ranks of the Opposition. They sought the appointment of a Select Committee of Parliament to inquire into a complaint of misbehaviour against the then Chief Justice Sarath Silva. The Supreme Court made an interim order that sought to prevent the Speaker from dealing with that resolution until the Court had heard and determined a fundamental rights application filed before it. Speaker Bandaranaike ruled that the Supreme Court had no jurisdiction to issue the interim order, and therefore he had no legal obligation to comply with it. He relied on section 3 of the Parliament (Powers and Privileges) Act of 1953 which stated that:

“There shall be freedom of speech, debate and proceeding in Parliament and such freedom of speech, debate or proceedings shall not be liable to be impeached or questioned in any court or place out of Parliament”.

It was Anura Bandaranaike’s view that the Speaker was obliged to appoint a Select Committee upon receiving a duly signed resolution, and that that was a “proceeding” of Parliament which could not be questioned in any court. In fact, section 3 protects only the “freedom” of speech, debate and proceeding. He was probably correct in reaching that conclusion, since the regulation of parliamentary business is a matter within the Speaker’s legitimate province. A tribunal with power to give a binding and authoritative decision had not yet been established. The interim order of the Supreme Court was, therefore, perhaps premature.

The issue today is one that is completely different to that dealt with by Speaker Anura Bandaranaike. There is now before the Court of Appeal an application by the Chief Justice for a writ of certiorari to quash the “decision” of the Select Committee. These findings affect her legal rights. The Constitution has vested the Court of Appeal with “full power and authority” to inspect and examine the records of any institution or person, and to grant and issue an order in the nature of a writ of certiorari quashing any decision that is contrary to law. A decision may be contrary to law for a variety of reasons: the decision-making body may have suffered from bias; the principles of natural justice may not have been observed, the decision-making body may have misdirected itself on the law or on the facts. Every individual living in Sri Lanka has the right to seek judicial review of any decision that adversely affects, or is detrimental to, him or her.

Is the Select Committee report subject to judicial review?

In 2002, the Government of Sri Lanka, acknowledged the existence of the constitutional right to seek judicial review of the findings of a Select Committee. It conveyed the following assurance in writing to the Human Rights Committee established under the International Covenant on Civil and Political Rights. That body had expressed concern about Standing Order 78A which enabled a Select Committee to inquire into the conduct of a Judge:

“Non-adherence to the rules of natural justice by the inquiring committee would attract judicial review. Indeed, nowhere in the relevant constitutional provisions or the standing orders seeks to exclude judicial review of the decision 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.” (sic)

That was a solemn, official, and authoritative declaration by the Government of Sri Lanka that the report of a Select Committee appointed under Standing Order 78A is subject to judicial review by the Court of Appeal. It was an assurance of Sri Lanka’s compliance with Article 14 of the Covenant which guarantees that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.

Why did Parliament provide for trial by select committee?

On 14 March 1984, Chief Justice Samarakone, who was due to retire in October of that year after five years in office, made a wholly inappropriate speech at a private tutory. He was critical of the Government and the President. The Government’s response was immediate. It decided to bring him before Parliament, but then discovered that the procedure for doing so had not been prescribed, as required by the Constitution. Accordingly, two steps were taken simultaneously. On 3 April 1984, Parliament resolved to appoint a Select Committee under Standing Order 78, to inquire into and report whether the Chief Justice had made the statements attributed to him in the press, and if so, to recommend what action should be taken. That was a legitimate exercise, since Parliament has the power to establish a select committee to inquire into and report on any matter. It was a fact-finding exercise.

On 4 April 1984, Parliament added a new Standing Order 78A, which empowered the Speaker to appoint a Select Committee for the purpose of investigating and reporting on an allegation of misbehaviour or incapacity against a Judge of a superior court. To give itself the power, through a standing order, to conduct what is virtually the trial of an offence, was clearly outside the powers of Parliament. Even under the Parliament (Powers and Privileges) Act, Parliament may directly deal with only very trivial matters, such as disrespectful conduct within the precincts of Parliament, or creating a disturbance when Parliament is sitting. The maximum punishment that Parliament may impose, in the exercise of its “judicial power”, is admonition or removal from its precincts. Many breaches of parliamentary privilege may only be tried in the Supreme Court.

The first Select Committee, chaired by Prime Minister Premadasa, held six meetings between 17 April and 20 July 1984. The Chief Justice declined to attend in protest against the new Standing Order 78A, but did not deny the statements attributed to him. The Committee reported on 9 August 1984 that the impugned speech was “not befitting the holder of the office of Chief Justice”, and recommended that appropriate action be considered.

On 5 September 1984, a resolution signed by 57 Members of Parliament, requesting the presentation of an address for the removal of Chief Justice Samarakone, was placed on the Order Paper. On the following day, the Speaker, acting under Standing Order 78A, appointed a Select Committee chaired by Minister Lalith Athulathmudali. At its first meeting, the three Opposition Members, Sarath Muttetuwegama, Anura Bandaranaike and Dinesh Gunawardena raised a preliminary objection. They submitted that the Select Committee could not determine “proved incapacity or misbehaviour” unless it had been judicially proved. The Select Committee held 14 meetings between 11 September and 27 November 1984, during all of which Mr. S. Nadesan QC and his team of lawyers appearing for the Chief Justice argued that the Select Committee was an unconstitutional body. Before the Committee concluded its sittings, the Chief Justice reached the mandatory retirement age. In its report to Parliament, the Committee concluded that the Chief Justice was not guilty of misbehaviour.

The desire to humiliate a lawyer with no previous judicial experience who had been elevated to the highest judicial office, and had then become critical of his benefactor, obviously led Parliament to adopt the swiftest procedure in the shortest possible time in order to achieve that purpose. Resorting to legislation, and establishing a special tribunal, as is the practice elsewhere in the democratic world, could not have been accomplished before Chief Justice Samarakone reached his mandatory retiring age.

Can the Select Committee ignore the court notice?

The Deputy Speaker of Parliament was reported to have stated that the members of the Select Committee, who have been informed by Court of the filing of an application for judicial review, will not respond to it. Indeed, they may choose not to respond, either in person or through counsel. Every citizen has the right not to seek to justify his or her actions in a court of law. However, if the Court were to quash the findings of the Select Committee, that would be a binding and authoritative judgment on the matter. If Parliament were to ignore that judgment and proceed regardless to debate the resolution for the removal of the Chief Justice, a very serious constitutional crisis will arise. It is a conflict that will affect the legitimacy of our entire judicial system.

The stability of our country rests upon the strength of the three great pillars of the state – the Legislature, the Executive and the Judiciary. These pillars are interdependent. Together, they deliver the checks and the balances, and the accountability factor that is so vital to the health of the state. If one pillar weakens, especially because of a concerted attack by another, the entire structure will surely collapse. Prorogation, or taking one step back, as has been suggested by some, will only serve to prolong this utterly self-destructive conflict. In fact, prorogation, under our present Constitution does not result in the lapse of pending matters; such matters may be proceeded with at the next session. It is time for this conflict to end.

It will be wise for those who now exercise state power to reflect on how judicial decisions that caused embarrassment to governments were dealt with in the past. The response to the judgment in the 1962 Coup Trial, and to the verdicts in the 1966 Coup Trial, are examples that come to mind. The political maturity with which such adverse judgments were received was testimony to the desire of those governments to respect and to keep alive the Rule of Law. Under our Constitution, and in our system of governance, the Judiciary is the final arbiter. That must surely be accepted and respected.

What is the international impact of this exercise?

The state regulated media has attempted during the past month to prevent the Sri Lankan public from learning of the extremely adverse international reaction to the impeachment exercise. Astonishment has been expressed, not only at a process in which the accusers and the judges were all members of a government parliamentary group, but also that the “judges” have thereafter made public statements from political platforms defending their “judgment”.

Critical statements made in international forums, national legislatures and by governments, and by professional organizations globally, have not been shared with the Sri Lankan public. Of particular significance is the reaction of Commonwealth institutions. Sri Lanka is expected to host the next Conference of Commonwealth Heads of Government in 2013. When it assumes the chairmanship of that body, Sri Lanka will become the custodian for the next two years of Commonwealth values and principles. Among these principles is the following:

“In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence and to be judged by an independent and impartial tribunal.”

It is now been asked, in voices that are becoming louder and more strident, whether the Government of Sri Lanka can be entrusted with that responsibility?