5 December, 2020

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The King Asserted That He Was Competent To Exercise Judicial Power: What The CJ Said?

By Nihal Jayawickrama

Dr.Nihal Jayawickrama

We do not seem to appreciate the fact that in this country it is the Constitution that is supreme; not the President, not Parliament; not the Judiciary, but the Constitution. It is explicitly stated in its preamble, that the Constitution is the supreme law of the Democratic Socialist Republic of Sri Lanka. It means not only that every institution of government is subject to the Constitution, but also that all power flows only from the Constitution. The legislative power exercised by Parliament, the executive power exercised by the President, and the judicial power exercised by courts and other institutions established by law, are derived from, and defined by, the Constitution.

The Constitution also makes it explicit that only the Supreme Court has “sole and exclusive jurisdiction” to hear and determine any question relating to the interpretation of any provision of the Constitution. If any such question were to arise in the course of any proceedings in any other court, tribunal or institution that is performing a judicial or quasi-judicial function, such question is required to be referred forthwith to the Supreme Court. Under the 1972 Constitution, it was the Constitutional Court that performed this task. When that Court was examining the Press Council Bill, a question arose whether the requirement to convey its decision to the Speaker within 14 days of the reference was mandatory or directory. Amidst angry rumblings in the National State Assembly where the Speaker had ruled that it was directory, the President of the Court declared that the Court would sit even until doomsday, until all the counsel had been heard, because, as he explained:

 “The duty of interpreting the Constitution is ours and ours alone. To interpret it, we have to first understand it. For that understanding, we have to rely on our own judgment, assisted, if need be, by the opinions of learned counsel. Any other course of action involves an abdication of our own functions. It therefore follows that our duty by the Constitution and the People in whom Sovereignty resides, is to continue to perform the function which the Constitution enjoins on us. That we intend to do.”

It is from the Constitution (unlike in England) that the three principal branches of government derive their powers. Legislative power is exercised by Parliament and by the People at a Referendum. Executive power is exercised by the President elected by the People. Judicial power is exercised by “courts, tribunals and institutions, created and established, or recognized, by the Constitution, or created and established by law”. The only exception is in respect of the privileges, immunities and powers of Parliament and of its Members, where “judicial power may be exercised directly by Parliament according to law”. When Article 4 of the Constitution states that judicial power is “exercised by Parliament through courts and other institutions” that are “created and established by law”, it obviously means that judicial power is exercised by Parliament, not directly, but through institutions that it has created and established by law.

Two important consequences flow from Article 4. Any institution seeking to exercise judicial power must be established by “law”. Even the determination and regulation of the privileges, immunities and powers of Parliament is required to be by “law”. In fact, Article 67 of the Constitution states that until these are determined and regulated by law, the Parliament (Powers and Privileges) Act of 1953 shall apply. There can be no confusion about what “law” means. Article 170 of the Constitution defines “law” to mean any Act of Parliament and any law enacted by any previous legislature. It does not include the standing orders of Parliament.

Why then does Article 107 of the Constitution give Parliament the option of acting either through law or standing orders in providing for matters relating to the presentation of an address for the removal of a Judge, “including the procedure for the investigation and proof of the alleged misbehaviour“? The answer to that question appears to be quite simple. If Parliament chooses the option of legislating, it may do, for example, what the Indian Parliament did by the Judicial Standards and Accountability Act of 2012. That is, establish a National Judicial Oversight Committee to which the Speaker of the Indian Parliament is now required to refer any charge of misbehaviour or incapacity against a Judge. That law has prescribed a detailed procedure for the investigation of such charge.

Alternatively, if Parliament decides to proceed by way of standing orders, it may provide for the Speaker to refer the charges to an existing institution vested with judicial power, such as the Supreme Court, as is the case in respect of a resolution for the removal of the President under Article 38 of the Constitution. It cannot, by standing order, establish, say, a new tribunal or other institution for this purpose since, under Article 4, that can only be done by law.

What Parliament also cannot do, is what Standing Order 78A purports to do. It cannot establish a Select Committee of Parliament to investigate the charges and report whether or not the offence of “misbehaviour” has been proved. This is because a Select Committee is not “a court, tribunal or other institution created or established by law to exercise judicial power”. That was why, in 2000, by common consent of all the political parties, provision was sought to be made in the Constitution itself for an inquiry to be held, in the case of the Chief Justice, by three persons who hold, or have held, office in the highest court of a Commonwealth country; and in the case of any other Judge, by three persons who hold, or have held, office in the Supreme Court or Court of Appeal. This option was proposed by the United Front Government for the specific purpose of remedying the defect contained in Standing Order 78A.

There are sound reasons why a Select Committee is not competent to find a Judge guilty of “misbehaviour”. A tribunal that is called upon to determine whether a charge of “misbehaviour” is proved, has to address three other questions before it can proceed to do so.

The first is the meaning and content of “misbehaviour”, an offence not defined in our law. It will be necessary to identify the precise elements that constitute “misbehaviour”, perhaps by reference to relevant decisions of courts in other jurisdictions. Without identifying these elements, it is not possible to proceed to the next stage, which is investigation. The purpose of the investigation is to apply the law to the facts as presented by the accusers, in order to determine whether the offence of “misbehaviour” has been committed.

The second is the degree of proof that is required. Is it a balance of probability, or proof beyond reasonable doubt? This matter needs to be clarified before proceedings begin, because on that will depend the nature, quality and quantity of evidence required. Will a layman serving on the Select Committee be able to distinguish between these two standards of proof?

The third is the burden of proof. On whom does it lie? Under our law, the burden always lies on the person who makes the accusation; in this instance, the 117 members of the government parliamentary group. Every person is, under our Constitution, “presumed innocent until he is proved guilty”. Standing Order 78A, on the other hand, states that the Judge who is accused “may adduce evidence, oral or documentary, in disproof of the allegations made against him”. To require an accused person to disprove the charge against him, is to turn our system of justice on its head. Under Article 13(3) of the Constitution, it is only by law (and not by standing order) that Parliament may place the burden of proving particular facts on an accused person. On that ground, the standing order is clearly unconstitutional.

The determination of these three questions is a classic example of the exercise of judicial power. It is no different to the situation envisaged in Article 36 of the Constitution where the Supreme Court will need to make similar determinations before a resolution to remove the President from office is voted upon in Parliament.

In this connection, it may be pertinent to recall the celebrated conversation that Sir Edward Coke, Chief Justice of England, had with King James I in 1607. The King asserted that he was competent to exercise judicial power. The Chief Justice records thus:

* Then the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges:

* To which it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it; and which protected His Majesty in safety and peace:

* With which the king was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said.

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Latest comments

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    Lot of nonsense from this legal ‘luminary’.

    THe Standing Order is legal because it was made by duly elected people in parliament, to give effect to Section 107 of the Constitution. It ‘derives’authority from it.

    Mr Jayawickrema left the country under a cloud due to his dictatorial approach to things and the legal profession was relieved that he left. His splitting of hairs on this issue does not change things. The CJ has asked another judge to step down from a bench hearing a case ivolving her husband’s dealings.

    Is that good enough for Jayawickrema. Not for us.

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      Idiotic argument from Sudhu Banda. Judical Power can not be taken awya from teh courts standing order or whatever th e nonsense could be. If CJ has flawed it shoudl eb taken to the supreme court and proved. Then the parliament can impeach.

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        I fully agree with you.

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      You are more like kehi Banda. The kuliyata kahina types. These are not duly elected some of them wrangled in to parliament and it is a bought majority. It is a bought parliament. We did not vote for these policies. They took our vote and sold them selves. Where is the legitimacy in this.? We most certainly did NOT vote for a set of brothers to run this country. It is more like buying our franchise with out our permission.so they have no rights bando
      You people are good at saying things about the intelligentsia of our country. This may be why ,you are upset with the CJ as well. She is educated like Mr Jayawickrama and can stand on their two feet . They do not have to wait for droppings like the likes of you.

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      This Sudu Banda is none other than Thadi Priyantha. See Thadi Priyantha’s Island article below this article.

      What happened to the Rule of Law when the PSCs start hearing cases under so called legal Standing Orders? Why then we need a separate independent judiciary?

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    Such well reasoned and wise explanations have no meaning to those who wield political power in Sri Lanka. This not a new phenomenon. D.S. Senanayake got the ball rolling and the then Supreme Court acted in collusion. The ball has accelerated progressively since then and assumed jet speed, destroying everything on its path. The Supreme Court has also been spineless most times and has been swayed by political winds. Notwithstanding, we have to stand by what the Supreme Court represents in our constitution and defend its functionaries from the on- going witch-hunt. The time has come for the citizens of this country to proclaim ‘enough is enough and no more’ with dignity and firmness. Are we capable of doing this, is the million dollar question?

    Dr.Rajasingham Narendran

  • 0
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    Ahhh Sudu Banda, back again?

  • 0
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    PERSONALLY, I FEEL THAT THIS BEAUTIFUL ISLAND GIVEN TO US BY OUR FATHER AND MOTHER, SHOULD BE SAVED BEFORE IT IS TOTALLY DESTROYED. WE HAVE ALMOST ONE MONTH TO RALLY OURSELVES TO FIGHT TO SAVE IT. COME ON YOU ISLAND LOVERS LET US IMPEACH THIS LOT OF DEVIL DANCERS FROM RUHUNU BACK TO THEIR HUT WHERE THEY REALLY BELONG, AWAY FROM THE PALACE

  • 0
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    Danny boy better write to Santa.

  • 0
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    What a thought provoking article. All bulls and cows in Parliament must read this article.Especially big Bull Speaker He still in a state of mind of Sub Inspector. What a shame for the country We are waiting to see their destiny.

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    The king’s knickers are tied in a knot and he is suffocating! Let us all hope he does not hyperventilate at his cronies, especially his own prince-ling Basil, who he must be mad at for bringing the whole system to this point.

    SHAME

  • 0
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    An excellently reasoned article,among all that have appeared on this forum.

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    If we were to go into the question about the meaning and effect of ‘the rule of law’,it will be possible to see how law can be a weapon in the hands of despots while those who seek to resist the despots see it as oppressive.That relative responsiveness reflects the extent to which judges of that country share in the aims and values of a political system in which they reside and the extent to which they are it’s supporters or detractors.
    Thus in a country where it’s people live in comparative freedom it will be possible for judges to forbid arrest without reasonable cause or imprisonment without trial, or support the right of free association within the limitations of free speech.
    But on the other hand in a country where people are subject to the dictates of an authoritarian regime the judges too would inevitably have to function subject to the authority of that regime.

    Dr.Nihal Jeyawickrema has done well to focus this aspect by illustrating what is meant by ‘the rule of law’ which in essence means the ‘law rules’ in the sense that all who exercise power as part of an established authority are themselves bound by the law; in his informative article by showing how the constitution limits the power of the government (even though the government may make new laws to change existing laws) there is always the possiblity that the exercise of that power is subject to challenge because judges however much they may share the values and aims of the government are not government servants and the challenge may be successful.

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    What Nihal Jayawickrama says is the correct interpretation of the Constitution. In the preamble of the Sri lankan Constitution it is clearly stated that the Sovereignty is with the people of Sri Lanka and the Constitutions is supreme than the other three branches of the government, The Executive, the legislator and the Judiciary. Parliament should used the courts to apply the law and the Constitutions has clearly indicates that the SC is the main authority to give directions when there is a dispute over the Constitution. If Rajapaksa brothers prepared the Divineguma Bill to meet the Constitution then nothing should have gone wrong, but they purposely prepared the bill to challenger the judiciary and every one is in big trouble as the stand off will not go away as they think. The biggest question is will the SC allow the Speaker and the Parliament to overide their authority and allow the Chief Justice to be impeached?

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