By Chandra Kumarage –

Chandra Kumarage

The campaign justifying the impeachment of the CJ is forging ahead regardless with enhanced vigour even after Supreme Court has pronounced through the Court of Appeal that “it is mandatory under article 107(3) of the Constitution for the Parliament provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof of any alleged misbehaviour or incapacity and the judge’s right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehaviour or incapacity.”

Despite that legality of the impeachment proceedings are continued to be discussed in public even by members of the Parliamentary Select Committee. Minister Susil Premajayantha, himself a lawyer has stated that a burden of proof is not a crucial ingredient in the impeachment inquiry of a judge. If it was said by Minister Wimal Weerawana one can ignore it as balderdash but when it is said by a lawyer the reader will be bewildered as to whether he is bluffing or is lacking in his knowledge of the basic tenets of law. Surely he should be aware of that Article 12 (1) and 13(5) respectively of the Constitution of Sri Lanka stipulate that all persons are equal before the law and every person shall be presumed innocent until he is proved guilty. Although the Supreme Court has given a final verdict rebutting all these so-called ‘law points’ raised by many lawyers, journalists and others,  it will be still pertinent  to have a look at the procedures adopted by some countries in impeaching their judges which have relevance to our jurisprudence on the subject.

The Senator- judges drawing from Black Jr.s’ Hand Book were agreed that the degree of proof must be one of “clear and convincing proof” a much more stringent standard the in preponderance of evidence but less than proof beyond reasonable doubt. But in a close reading by a trained legal mind it will appear that clear and convincing proof is nothing more in the final analysis than proof beyond reasonable doubt.

The impeachment procedure in the US is not a totally one sided affair as that followed presently in Sri Lanka. The sole power of impeaching the President of USA as well as other judges and public officers is vested in the House of Representatives (the House) Article 1(2) clause 5 of the U.S Constitution. The Senate on the other hand is vested with the power to conduct the Impeachment trial (Article 1(2), clause 6 and 7). Sitting for the purpose of impeachment trial they shall take an oath and affirmation “to the trial of the respondent judge now pending I will do impartial justice according to the Constitution and law,” When the President of the USA  is tried under impeachment the Chief Justice of the USA presides.

The power to determine whether the impeachment is appropriate in a given instance vests solely with the House of Representatives. The Constitution places the responsibility and authority to determine whether the impeachment and the draft articles of impeachment (charges) in the hands of the House of Representatives. The ultimate decision both as to whether to impeach and to what articles of impeachment shall be presented to the Senate for trial rests in the hands of the House of Representatives.

Should the House decide to impeach and vote articles of impeachment specifying the grounds upon which the impeachment is based the matter is then presented to the Senate for trial. Under the Constitution the Senate has the sole power to try the impeachment. A conviction must be supported by two thirds of the Senators presents. Under a Judicial Conference of the US certifies to the House of Representatives its determination to impeach someone and notice the respondent to attend the House(28USC 355 b(1). A Task Force on Judicial Impeachment is established by the House Judicial Committee to pursue the investigation. When Judge Porteous was to be impeached the investigation was not completed during its 100^th Congress because the House of Representatives is not a continuous body, the House Judiciary Committee had to be reappointed at the 111^th Congress. That was done on January 13 2009. The Task Force on Judicial Impeachment (TFJI) established by the House Judicial Committee on January 22 2009  concluded recoding evidence in January 2010. While the Constitution provisions provide the basic framework for impeachment they do not address issues that may arise in the process of impeachment or an answer to all questions of procedure. In the Senate trial the House of Representatives is represented by Managers (five) who may be assisted by counsel. The impeached person too can have legal assistance.

The Senate Judicial Committee of late consists of 12 senators six from the Republican Party and six from the Democratic Party not on the basis of party strengths in the Senate unlike in Sri Lanka but on that of equality. The trial is like a criminal trial. The prosecution leads the evidence of its witnesses who will be subjected to cross-examination by the respondent judge’s counsel. An additional feature is that there is provision for re-re-examination and re-cross examination. Once when the complainant’s case is closed the respondent judge can call his witnesses who will also be subjected to the same order of cross examination etc.

After the Senate has considered the evidence presented before it, it has to determine whether or not to convict the respondent upon the articles. To convict the respondent on each article a two thirds majority is essential. Under Rule 1X of the Senate Rules of Procedure in a trial of any impeachment the presiding officer of the Senate, if the senate so desires shall appoint a committee of Senators called Managers to receive evidence and to take testimony at such times and places the Committee may determine.

The impeachment procedure in the USA is a lengthy and transparent procedure which guarantees all fair trial and due process guarantees to a respondent judge facing impeachment. Some self acclaimed ‘legal experts’ in Sri Lanka have been disseminating wrong information of these matters by quoting reports and documents of such procedures wrongly and out context to mislead the people.

Moreover the Foreign Minister of Sri Lanka G.L. Peiris briefing the diplomatic corps in Sri Lanka recently is reported to have quoted William Rehnquist CJ of the Supreme Court of the USA in the case of the impeachment of Judge Walter L.Nixon in 1993  endorsing the views expressed by Justice White that “Encroachment into the right of the Senate to impeach a judge is a violation of the law.” The Minister is also reported to have stated further that governments that condemn Sri Lanka in cavalier fashion should pay attention to such types of judgments.

However what the learned Minister failed to tell his audience is how fair, transparent and nonpartisan is the impeachment procedure in the USA compared to that of Sri Lanka by a Parliamentary Select Committee, the decisive majority of members of which belongs to the government coalition, how this committee violates the principle of equality, and is devoid of any of those fair trial, due process and natural law guarantees. He also does not say that the ongoing impeachment motion against the incumbent Chief Justice was initiated after the CJ together with two other judges of the Supreme Court made a determination unpalatable to the government and therefore was politically motivated and biased.

When he was question about the feasibility of getting foreign judges to hear the Impeachment inquiry the Minister had responded that, It is illegal to do so in Sri Lanka…as the Supreme Court of Sri Lanka ( Sarath N.Silva as CJ ) had held that Sri Lanka cannot invest a foreign body/court with jurisdiction in respect of matters that arise with respect to the legal framework of this country. There again the learned Foreign Minister being an author of many an essay on international law had sought refuge in a highly controversial finding of a highly controversial Chief Justice putting Sri Lanka’s obligations under international law as a state party to the Optional Protocol 1 of the ICCPR to the back burner. With due respect to the Supreme Court of Sri Lanka it must be stated that the Supreme Court exercising the judicial power  invested in it by the people as sovereigns has no right to take away a basic right conferred on the people, per incuriam  and in excess of the Jurisdiction of the Court. It is not something unknown to the erudite Minster that a treaty solemnly entered into by the Sri Lankan State in the exercise of its executive power and in compliance with the provisions of the Vienna Convention on the Law of Treaties (VCLT) is not subject to judicial review. It is a basic maxim of international law that a State may not invoke its domestic law to justify its failure to fulfil its international obligations and that every treaty in force is binding on the parties to it and must be performed by them in good faith (pacta sunt servanda).

The question must be posed to the Minister as to why he as Minister in charge of the subject did not bring in enabling legislation to transform the provisions of the Optional Protocol into our legal system despite numerous requests made by the UN Human Rights Committee (UNHRC) and civil society organisations. Had the late Laksman Kadirgamar, that illustrious Foreign Minister of Sri Lanka  who was instrumental in the accession to the Optional Protocol 1 of the Covenant been alive he would have definitely capped his achievement with the incorporation of the individual petitions  procedure under the Optional Protocol into our legal system.

It is common knowledge now that in countries like India, Singapore, Malaysia, New Zealand and Australia, impeachment inquiries are conducted by Judicial bodies with full guarantees of fair trial and principles of natural justice.

IN the United Kingdom the power to impeach is vested in House of Commons. It appoints Managers to process evidence and prosecute at the trial. The mover of the impeachment is commanded to go to the House of Lords declare that the defendant is impeached in the names of the House of Commons and commons of the UK. House of Lords then hears the case like an ordinary trial with all fair trial guarantees. At the end of the trial the lords decide by a majority as to whether the defendant is not guilty or guilty.  But the impeachment in the UK has become a thing of the past as there had been no impeachments in the country since 1795 and 1806 after the impeachments of Warren Hastings the Governor General of India and Henry Dundas respectively.

This article has addressed the same as it is implemented in other polities in the world that are relevant to our legal system.

The legislature and the executive must respect the interpretation pronounced by the Supreme Court which has been vested with the judicial powers by the people who are both de jure and de facto sovereigns according to the Constitution. They must seek another way to resolve any matter arising out of the pronouncement of the Supreme Court adhering to the rule of law and the principle of separation of powers.

“For he that is delighted by concord

And who abideth in to the Law

Falleth not from Security.”

Gauthama Buddha- Iti-Vuttaka

*K.D.C.Kumarage, Attornet-at-law, Co-convenor, Lawyers for Democracy