By C. A. Chandraprema –

C. A. Chandraprema

The president’s announcement that he will be appointing an ‘independent panel’ to look into the merits of the impeachment motion after the parliamentary process is over and it has been referred to him, has drawn mixed reactions. Some opponents of the impeachment exult that their claim that parliament is not ‘supreme’ has been vindicated by the president’s declaration that he will be appointing an independent panel to scrutinise the parliamentary process. Others say that this indicates that the president himself has accepted that the parliamentary select committee process is flawed. Yet others of a more cynical bent say that this is just a typical Rajapaksa ploy to head of protests during the constitutionally mandatory month-long ‘nonagathaya’ before parliament can act on the recommendations of the PSC.  Be that as it may, the president does have much to think about. This will be the first time in post independence Sri Lanka that any high official in this country is being impeached and it is he who will in the final analysis take the step of signing the decree sacking the CJ.

The point is that the wrongdoing that the CJ has been found guilty of by the PSC is not as clear cut as say, a judge being found to have murdered somebody or caught trying to smuggle gold into the country. The CJ has been found guilty of three charges:  1) Taking over and hearing a case involving among other properties, Trillium Residencies in which she had on a power of attorney bought a flat for her sister and brother in law thus creating a conflict of interest. 2) That she had not declared a large amount of money in her bank accounts in the annual declaration of assets. 3) That she continued to be the CJ and the Chairperson of the Judicial Services Commission in a context where her husband was a suspect in a case before a magistrates court and as the CJ and the ex-officio Chairperson of the JSC, she had powers over the transfer, dismissal or career advancement of the magistrate who was trying her husband as well as the power to examine all the records of that magistrates court – another conflict of interest.

The question is that none of these are ‘crimes’ in the ordinary sense of the term. The non disclosure of assets is an offence that carries a one year prison sentence according to the Declaration of Assets and Liabilities Act No:1 of 1975. Perhaps the non-disclosure can be defined a ‘crime’ of sorts, because the law has been broken and she could be prosecuted in the ordinary courts as well.  But in this country the declaration of assets law is often adhered to only in the breach and is not enforced strictly. All the three allegations that the CJ has been found guilty of by the PSC are serious wrongdoings in terms of the various international codes of ethics for judges and even the  Establishments Code of Sri Lanka which applies to all public servants. But then the Establishments Code is not the Penal Code. If no real crime has been committed, can the president justifiably sign a decree ending the career of no less a person than the chief justice of the country?

As has been pointed out earlier in this column, many features in our constitution including the impeachment procedure have been borrowed from the USA and it is to the US that we have to look for inspiration as to how this issue should be handled. Unlike us, the USA has had long experience with impeachment proceedings. They were impeaching judges using much the same procedure as today when in Sri Lanka, King Sri Wickrama Rajasinha was having people beheaded at the drop of a hat. According to Article 107(2) of our constitution, judges may hold office only ‘during good behaviour’ and cannot be removed before retirement age except through the impeachment procedure. In this respect, the SL constitutional provisions are identical with the provisions of the US constitution in which Article 3(1) also says that judges will hold their offices during good behaviour. In the US, judges can be removed before retirement or death, only through the impeachment procedure and a study of the thinking in the USA will help Sri Lanka to find its way in this unfamiliar territory.

Article 2(4) of the US constitution specifically states “The President, Vice President and all civil Officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours.” Much of the debate in the USA over impeachable offences has revolved around the phrase ‘during good behaviour’ found in Article 3(1) and the phrase misdemeanours’ found in article 2(4). It should be noted that both in the USA and in Sri Lanka, the phrase ‘misbehaviour’ which forms the basis of impeachment for judges, has not been defined anywhere. Even in the US Constitution, the specification ‘treason, bribery or other high crimes and misdemeanours’ which has been laid down in regard to impeachment in the executive branch of government has not been specified with regard to the judicial branch. With regard to the judicial branch of the US government (as is the case in Sri Lanka too) only the much looser term ‘misbehaviour’ has been used.

A paper titled “Congressional Oversight of Judges and Justices” prepared by the US Congressional Research Service for members and committees of the US Congress in May 2005 had the following observation to make: “The debate on impeachable offenses during the Constitutional Convention in 1787 indicates that criminal conduct was at least part of what was included in the ‘treason, bribery, or other high crimes and misdemeanors’ language.  However, the precedents in this country reflect the fact that conduct which may not constitute a crime, but which may still be serious misbehaviour bringing disrepute upon the public office involved, may provide a sufficient ground for impeachment.”

In 1970, there was an interesting exchange in the US House of Representatives between Congressmen Gerald R.Ford of Michigan, (who later became President), Paul N.McCloskey of California and Frank Thompson of New Jersey about the grounds for impeachment of judges. This was in the context of a debate on a resolution to impeach William O. Douglas a judge of the Supreme Court. (It should be noted that these Congressmen quoted many sources in making their arguments, but for the sake of brevity and manageability we have not indicated when they were quoting someone else but taken what each Congressmen said as ‘points’ he was asserting.) Gerald Ford’s arguments can be paraphrased as follows:

Congressman Gerald R.Ford

* Members of the Federal judiciary hold their offices only ‘during good behaviour’….What constitutes ‘good behaviour’ or, conversely, ungood or disqualifying behaviour? The word ‘behaviour’ relates to action, not merely to thoughts or opinions; further, it refers not to a single act but to a pattern or continuing sequence of action. We cannot and should not remove a Federal judge for the legal views or ideology he holds nor should we remove him for a minor or isolated mistake. What we should scrutinize in sitting Judges is their continuing pattern of action, their behaviour. The Constitution does not demand that it be ‘exemplary’ or ‘perfect’. But it does have to be ‘good’.

*Naturally, there must be orderly procedure for determining whether or not a Federal judge’s behaviour is good. The courts, arbiters in most such questions of judgment, cannot judge themselves. So the Founding Fathers (of the constitution) vested this ultimate power in Congress, in the elected representatives of the people and of the States…

*  I have endeavoured to correct two common misconceptions: first, that Federal judges are appointed for life and, second, that they can be removed only by being convicted, with all ordinary protections and presumptions of innocence to which an accused is entitled, of violating the law. This is not the case.  An offense need not be indictable to be impeachable. In other words, something less than a criminal act or criminal dereliction of duty may nevertheless be sufficient grounds for impeachment and removal from public office. What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history… I think it is fair to come to one conclusion, however, from our history of impeachments: a higher standard is expected of Federal judges than of any other ‘civil officers’ of the United States.

*   The terms of Members of the House (of Representatives) are fixed at 2 years; of the President and Vice President at 4; of U.S. Senators at 6. The President and Vice President, and all persons holding office at the pleasure of the President, can be thrown out of office by the voters at least every 4 years. To remove them in midterm—it has been tried only twice and never done—would indeed require crimes of the magnitude of treason and bribery. Other elective officials, such as Members of the Congress, are so vulnerable to public displeasure that their removal by the complicated impeachment route has not even been tried since 1798.

*  At one impeachment hearing, relating to a federal judge, three Senators  said in a joint statement:  “We did not, seek to satisfy ourselves as to whether technically a crime or crimes had been committed…we sought only to ascertain from these facts whether his conduct had been such as to amount to misbehaviour, misconduct—as to whether he had conducted himself in a way that was calculated to undermine public confidence in the courts and to create a sense of scandal. There are a great many things which one must readily admit would be wholly unbecoming, wholly intolerable, in the conduct of a judge, and yet these things might not amount to a crime.  Another senator declared: Tenure during good behaviour is in no sense a guaranty of a life job, and misbehaviour in the ordinary dictionary sense of the term will cause it to be cut short…To assume that good behaviour means anything but good behaviour would be to cast a reflection upon the ability of the fathers to express themselves in understandable language.

Congressman Paul N. McCloskey

Congressman Paul N.McCloskey of California opposed the ideas of Gerald R. Ford and advanced a different view on the grounds for Impeachment of judges as follows:

* I respectfully disagree with the basic premise ‘‘that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.’’ To accept this view, in my judgment, would do grave damage to the constitutional principle of an independent judiciary free from fear of executive or legislative disfavour. If an independent judiciary is to be preserved, the House must exercise decent restraint and caution in its definition of what is less than good behaviour. As we honour the court’s self-imposed doctrine of judicial restraint, so we might likewise honour the principle of legislative restraint in considering serious charges against members of a coequal branch of Government which we have wished to keep free from political tensions and emotions…

*  The term ‘good behaviour’ as the Founding Fathers considered it, must be taken together with the specific provisions limiting cause for impeachment of executive branch personnel to ‘treason, bribery or other high crimes and misdemeanours’. The higher standard of good behaviour required of Judges might well be considered as applicable solely to their judicial performance and capacity and not to their private and nonjudicial conduct unless the same is violative of the law….I can find no precedent, however, for impeachment of a Judge for nonjudicial conduct which falls short of violation of law.

*  In looking to the nine cases of impeachment of Judges spanning 181 years of our national history, in every case involved, the impeachment was based on either improper judicial conduct or nonjudicial conduct which was considered as criminal in nature…The bulk of these challenges to the court were thus on judicial misconduct, with scattered instances of nonjudicial behaviour. In all cases, however, insofar as I have been able to thus far determine, the nonjudicial behaviour involved clear violation of criminal or civil law, and not just a ‘‘pattern of behaviour’’ that others might find less than ‘‘good.’’

* Conduct of a Judge, while it may be less than criminal in nature to constitute ‘less than good behaviour’, has never resulted in a successful impeachment unless the judge was acting in his judicial capacity or misusing his judicial power. In other words the precedents suggest that misconduct must either be ‘judicial misconduct’ or conduct which constitutes a crime. There is no basis for impeachment on charges of non-judicial misconduct which occurs off the bench and does not constitute a crime. . . .

Congressman Gerald R. Ford Again

Ford, responded to the criticism of his view on the grounds for impeachment of judges with a memorandum which stated among other things, the following:

*  A review of the past impeachment proceedings has clearly established little constitutional basis to the argument that an impeachable offense must be indictable as well. If this were to be the case, the Constitution would then merely provide an additional or alternate method of punishment, in specific instances, to the traditional criminal law violator. If the framers had meant to remove from office only those officials who violated the criminal law, a much simpler method than impeachment could have been devised. Since impeachment is such a complex and cumbersome procedure, it must have been directed at conduct which would be outside the purview of the criminal law…By restricting the punishment for impeachment to removal and disqualification from office, impeachment seems to be a protective, rather than a punitive, device. It is meant to protect the public from conduct by high public officials that undermines public confidence. Therefore it seems clear that impeachment will lie for conduct not indictable nor even criminal in nature.

* The phrase misdemeanours is meant to include conduct, which, while not indictable by the criminal law, has at least the characteristics of a crime. However, this provision is not conclusively restrictive. Congress may look elsewhere in the Constitution to determine if an impeachable offense has occurred. In the case of judges, such additional grounds of impeachment may be found in Article III, Section 1 where the judicial tenure is fixed at ‘good behaviour’. While various definitions of impeachable misbehaviour have been advanced, the unifying factor in these definitions is the notion that there must be such misconduct as to cast doubt on the integrity and impartiality of the Federal judiciary. A judge ought not only be impartial, but he ought not to so demean himself, both in and out of court, that litigants will have reason to suspect his impartiality and that repeatedly failing in that respect constitutes a ‘high misdemeanour’ in regard to his office.

Congressman Frank Thompson

Congressman Frank Thompson of New Jersey joined the debate with the following views:

* With a few aberrations in the early 1800’s – a period of unprecedented political upheaval –  Congress has refused to impeach a judge for lack of ‘good behaviour’ unless the behaviour is both job-related and criminal. How could it be otherwise? The purpose of an independent judiciary is to check the excesses of the legislative and executive branches of the government. The judges must be strong and secure if they are to do this job well. I requested Daniel H. Pollitt, a professor of constitutional law at the University of North Carolina to survey the 51 impeachment proceedings in this House during the intervening years…it shows that never since the earliest days of this Republic has the House impeached a judge for conduct which was not both job-related and criminal. This body has consistently refused to impeach a judge unless he was guilty of an indictable offense.

What the Judiciary Committee Said

The Special Subcommittee of the Committee on the Judiciary of the House of Representatives, which had been created to investigate and report on charges of impeachment against Justice Douglas of the Supreme Court, submitted its final report to the full committee in September 1970 in which they had made the following observations with regard to impeachable offences:

*  Exposure of infirmities in the judicial system is undertaken only with reluctance. It is an area in which the bar, the judiciary, and the executive and legislative branches alike have seen fit to move cautiously and painstakingly. There must be full recognition of the necessity to proceed in such a manner that will result in the least damage possible to judicial independence, but which, at the same time, will result in correction or elimination of any condition that brings discredit to the judicial system. The content of the word ‘misdemeanour’ must encompass some activities which fall below the standard of ‘good behaviour’. Conduct which fails to meet the standard of ‘good behaviour’ but which does not come within the definition of ‘misdemeanour’ is not subject to impeachment.

*  The ‘Kelley Memorandum’ submitted by Mr. Ford enforces this position. The Kelley Memorandum asserts that misbehaviour by a Federal judge may constitute an impeachable offense though the conduct may not be an indictable crime or misdemeanour.  On the other hand, a Counsel for Justice Douglas, has submitted a memorandum that contends that a Federal judge may not be impeached for anything short of criminal conduct. He stated: “The constitutional language, in plain terms, confines impeachment to ‘Treason, Bribery, or other high Crimes and Misdemeanours’. The history of those provisions reinforces their plain meaning. The unsuccessful attempt to remove Justice Chase firmly established the proposition that impeachment is for criminal offenses only, and is not a ‘general inquest’ into the behaviour of judges. There has developed the consistent practice, rigorously followed in every case in this century, of impeaching federal judges only when criminal offenses have been charged”.

*  The precedents show that the House of Representatives, particularly in the arguments made by its Managers in the Senate trials, favours the conclusion that the phrase ‘high crimes and misdemeanours’ encompasses activity which is not necessarily criminal in nature. All authorities hold that for a judge to be impeached, the term ‘misdemeanours’ requires a showing of misconduct which is inherently serious in relation to social standards. No respectable argument can be made to support the concept that a judge could be impeached if his conduct did not amount at least to a serious dereliction of his duty as a member of society. To be a ‘misdemeanour’, and hence impeachable, conduct must amount to a serious dereliction of an obligation owed to society. When such misbehaviour occurs in connection with the federal office, actual criminal conduct should not be a requisite to impeachment of a judge or any other federal official.

The recommendation made by the Special Subcommittee of the Judiciary Committee of the US House of Representatives appointed to study the merits of the impeachment motion against Associate Justice William O. Douglas of the Supreme Court made their own observations on this vexed question of what constitutes an impeachable offence. Having summarised the various concepts of what constitutes an impeachable offence, Subcommittee came to the firm conclusion that “It is not necessary for the members of the Judiciary Committee to take a position on either of the concepts of impeachment that are discussed…” In fact Congressman Edward Hutchinson, of Michigan, who was a member of the special subcommittee, filed a separate opinion where he agreed with the other members of the Subcommittee that it is unnecessary to choose among the concepts of impeachment mentioned… asserting further that the Subcommittee should not even indirectly narrow the power of the House to impeach through a recitation of two or three theories and a very apparent choice of one over the others… He further stated that the inclusion of this chapter (which refers to the various impeachments concepts) in their report may be mischievous since it might unjustifiably restrict the scope of further investigation.

Perhaps Sri Lanka can provide the USA with an example to show why it is so important to leave open the question of what constitutes an impeachable offence. In 1984 Chief Justice Neville Samarakoon was impeached for certain comments he made during a speech at an awards ceremony at a private tutory.  Everything he said was basically true. Yet, as the chief justice, he should not have made political comments in public critical (or even in praise) of the government as that brings into doubt his impartiality. No government could have ignored the comments made by Samarakoon and done nothing. Thus a Chief Justice can, and has been hauled up for impeachment for nothing more than simply speaking the truth – a right that every tipsy peasant in this country exercises without any consequences.

What is not wrong when an ordinary person does it can become wrong when a judge does the same thing.  This is probably why the US House of Representatives in its wisdom opted to leave wide open the question of what exactly constitutes an impeachable offence with one Congressman protesting that even the publishing of the ideas discussed could indirectly restrict the scope of future impeachment debates. He would, we assume, have preferred that the whole debate on the grounds for impeachment be expunged from the Congressional Record and the topic left wide open for the future!

Courtesy Sunday Island