By C. A. Chandraprema –

C. A. Chandraprema

It was Dr Jayampathy Wickremaratne who gave us in the audience the breaking news that the Chief Justice had just walked out of the Parliamentary Select Committee. This was at a well-attended seminar last Thursday evening on the ‘Politics and Law behind the Impeachment’ organised by the Socialist Study Circle at the N.M.Perera Centre in Borella.  Wickremaratne was in the chair and Prof. Deepika Udagama of the Peradeniya University was the main speaker. Now the question arises, what happens when the person facing impeachment walks out of the proceedings? The parliamentary standing orders have not specifically provided for a walkout by the defendant. What standing order 78A(5) says in regard to this is that:

“The Judge whose alleged misbehaviour or incapacity is the subject of the investigation by a Select Committee appointed under paragraph (2) of this Order shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce evidence, oral or documentary, in disproof of the allegations made against him.”

The wording of this section makes it clear that the attendance of the person being subject to impeachment, before the parliamentary select committee is his or her right which he may or may not avail of. The impeachment process is not a criminal proceeding where every effort will be made to capture and incarcerate or in other ways compel the attendance of a suspect before commencing the trial. An impeachment proceeding is more like a disciplinary inquiry entailing only removal from a position and not conviction and imprisonment. This is consistent with the law and practice of impeachment in the USA from where we have borrowed our impeachment procedure. The first time that a Federal Judge was impeached in the USA (the impeachment trial of Judge John Pickering in 1803) the US Senate observed:

“no power is constitutionally vested in the Senate to take into custody, or hold the body of the person impeached for trial; but that a notification to the party of the impeachment, with a copy of the articles exhibited, is all the process requisite in the case; and that it is optional with the party to appear in propria persona, by attorney, or not at all; and that after the notice given as aforesaid, it is competent for the Senate to proceed to a trial and judgment on said impeachment, whether the party shall appear by himself, his attorney, or not at all.”

In fact summons were served on John Pickering on the 25th of January, 1804, but he did not appear in person nor was he represented and he did not file an answer to the allegations against him either. Later his son appeared before the Senate pleading that his father was insane and asking for time to prove that he was in fact insane! The Senate Trial opened on 2 March 1804 and he had been declared guilty on all charges by the 12 March 1804.

Provision for continuing trial

The US Senate “PROCEDURE AND GUIDELINES FOR IMPEACHMENT TRIALS IN THE UNITED STATES SENATE” formulated/revised by the 99th Congress and dated  August 15, 1986, says the following about the presence or otherwise of the individual being impeached at the trail in the Senate:

“If the person impeached, after service, shall fail to appear, either in person or by attorney, on the day so fixed thereof as aforesaid, or, appearing, shall fail to file his answer to such articles of impeachment, the trial shall proceed, nevertheless, as upon a plea of not guilty.”

So when we take the Sri Lankan standing orders and the US Senate guidelines for impeachment trials together, we see that there is no impediment to proceeding with the inquiry in the Parliamentary Select Committee. Ideally the defendant should be given an opportunity to present her side of the case. In this case, she has been given an opportunity to present her side of the case but has voluntarily withdrawn from it saying that she has no faith in the process. In just walking out, she has probably committed another impeachable offence because she as the Chief Justice of the country has walked out of a constitutionally mandated process. The same constitution that provides for the present impeachment procedure, also gives legitimacy to the Judiciary that she presides over. Hence the fact that she, the chief justice of the country walked out of a constitutionally mandated procedure does constitute ‘misbehaviour’ of the highest order.

In a way, the walkout by the chief justice was hardly unexpected.  There were some charges in the impeachment that could not even be argued. For example, the one question that the present writer asked Dr Udugama at the seminar mentioned above was whether she does not see a conflict of interest in that the husband of the CJ is a suspect in a case before the magistrates court, while the CJ continues to remain in her post and be the chairperson of the Judicial Services Commission which has complete control over the magistrate trying her husband? Before Prof. Udugama could speak it was Dr Wickremaratne who answered saying that the conflict of interest could be eliminated by the CJ not sitting in on any session of the JSC which discusses matters relating to that magistrate and allowing the other two judges to make such decisions. The present writer pointed out that that was not the issue and that the issue was that the entire trial in the magistrate’s court will be completely skewed to begin with, by the power that the CJ wields over the life of the magistrate. There was no answer to that from anybody. The fact is that no reasonable person will deny that there is a gross conflict of interest here.  This alone is good reason for impeachment.

When the CJ walked out of the PSC hearing, one of the reasons adduced was that she was not given enough time to respond to the evidence presented. This is the first time,  that Sri Lanka is going the whole hog with an impeachment motion but the USA has had a long history of impeachments and one thing that they got clear very early on was what an impeachment was about. The American constitution (Article 1 Section 3) itself says that judgment in case of impeachment shall not extend further than to removal from office, and disqualification to hold office under the state. As such it was never meant to anything more than a high level disciplinary procedure. Impeachment is not a criminal trial whereby you can be convicted and jailed or deprived of civic rights. Lakshman Kiriella one of the opposition members on the PSC came on TV and said that even cattle thieves are given a minimum of three months to prepare their defence. The difference of course is that cattle thieves face criminal charges which can result in a fine or in imprisonment. An impeachment entails no such thing.

Misconceptions about procedure

The impeachment has become like a rugby match, with opponents of the government cheering the CJ and proponents of the government cheering the PSC. For the fans on the grandstand, anything that his side does is right, even if it is wrong. At the aforementioned seminar, one gentleman in the audience wanted to know how the US Senate goes about impeaching judges. Elmore Perera, the doughty opponent of governments offered an explanation of the procedure and in his eagerness to show that the Sri Lankan impeachment procedure was flawed said that when the US Senate carries out an impeachment trial, the president of the senate does not chair it and that the impeachment hearing in the senate is chaired by the chief justice. This led to consternation in the audience towards the end of the seminar with one participant asking what happens if the chief justice himself is subject to impeachment proceedings in the USA?

To this, both Dr Jayampathy Wickremaratne and Prof.Deepika Udugama admitted that they have no answer. We did not get a reply to that query from Mr Elmore Perera either. The fact of the matter is that in the USA, the Chief Justice presides over a Senate impeachment trial only if the president of the United States or the Vice President is being impeached. When it comes to a judge whether he be the CJ or otherwise, it is always an ordinary Senator who will head the committee that carries out the impeachment trial on behalf of the entire Senate.  The last time that a Federal Judge was impeached in the USA, was just two years ago in December 2010 – Judge Thomas Porteous. The person who presided over his impeachment trial was most certainly not the Chief Justice –it was Senator Claire McCaskill. Here too, the Senate committee wanted to conclude sittings expeditiously. The trial was to begin in early August 2010, with the vote being taken in late September, but it began only in mid-September, and the vote was taken on December 8.

The Senate Committee in the impeachment trial of Judge Porteous made certain observations that are very relevant to the debate on the impeachment motion against Shirani Bandaranayake. One of the main arguments of those opposing the impeachment motion against Bandaranayake is that the PSC is not a judicial body. In fact in this last impeachment trial in the USA Judge Porteous strenuously argued that he cannot be tried by the Senate and that he can be tried only by the Department of Justice. To this, the House of Representatives made the categorical statement that “the decision as to whether a Judge’s conduct warrants his removal from office is the Constitutional prerogative of the Senate—not the Department of Justice”.  In fact the footnotes to the Amended replication of the House of Representatives in the Porteous case, they drew attention to the landmark case of United States v. Nixon which dealt with this question of impeachment trials being conducted by the Senate and not by the Judiciary.

United States v. Nixon was a 1993 case where Federal Judge Walter J. Nixon was impeached for giving false testimony before a grand jury, and bringing disrepute on the Federal Judiciary. Nixon raised objections to the legislature exercising judicial power. In delivering the judgement of the court, Chief Justice Rehnquist stated the following about why the framers of the American constitution accorded the power to carry out impeachment trials to the Senate and not to the Judiciary:

“The Framers laboured over the question of where the impeachment power should lie… Indeed, (James) Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. .. Despite these proposals, the Convention ultimately decided that the Senate would have “the sole power to try all impeachments.” … According to Alexander Hamilton, the Senate was the “most fit depositary of this important trust” because its members are representatives of the people… The Supreme Court was not the proper body, because the Framers “doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task” or whether the Court “would possess the degree of credit and authority” to carry out its judgment if it conflicted with the accusation brought by the Legislature – the people’s representative.  In addition, the Framers believed the Court was too small in number: “The awful discretion, which a court of impeachments must necessarily have, to doom to honour or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.”

“There are two additional reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments. First, the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offences – the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. The Framers deliberately separated the two forums to avoid raising the spectre of bias and to ensure independent judgments:”

“Would it be proper that the persons who had disposed of his fame and his most valuable rights as a citizen in one trial should, in another trial, for the same offence, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend that error in the first sentence would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights, which might be brought to vary the complexion of another decision?”

Why not the Judiciary?

Thus the US Supreme court held in United States v. Nixon decided that the Senate and not the judiciary has been accorded the power to try impeachments because:

a)  Firstly, the Senate was made up of representatives of the people.

b) Secondly, The judiciary may not always have the fortitude for the execution of a difficult task like this (even the president of the United States would be tried by the Senate)

c) Thirdly, the court may not have the clout to give down a verdict which conflicts with the accusation brought by the legislature.

d) Fourthly, a small number of persons on a supreme court bench should not be entrusted with such a momentous task.

e)  Fifthly, the impeachment trial may be followed by a further trial on the same or similar charges in the normal courts and the Judiciary therefore cannot be judge in two trials on the same charges.

Chief Justice Rehnquist in United States v. Nixon further considered the question why the Judiciary should be prohibited from even reviewing a verdict arrived at by a Senate Committee in an impeachment trial. He observed:

“Judicial review of the Senate’s “trial” would introduce the same risk of bias as would participation in the trial itself. Second, judicial review would be inconsistent with the Framers’ insistence that our system be one of checks and balances. In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature…Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive, because it would eviscerate the “important constitutional check” placed on the Judiciary by the Framers. Nixon’s argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.”

This final sentence should be taken cognisance of by Drs Nihal Jayawickrama and Jayampathy Wickremaratne, Prof. Deepika Udugama, Elmore Perera and other anti-impeachment warriors who say that the judiciary or a judicial body should carry out impeachment trials. We have pointed out in this column that the Sri Lankan judiciary is already too accustomed to hearing cases against itself. When the present columnist asked Prof. Udugama at last Thursday’s seminar what she has to say about Vasudeva Nanayakkara’s point that when a petition goes to the supreme court against PSC inquiry against the CJ, the person who assigns benches to hear those cases is the CJ herself. This was not answered by Prof. Udugama but by Elmore Perera who said that the CJ never assigns benches to hear cases and that that is done by the ‘listing judge’. However he did say that Sarath N.Silva did assign benches himself. Dr Wickremaratne agreed with this view.

However, a top lawyer who regularly appears before the supreme court categorically told the present writer that while there is a listing judge who is often the junior-most judge of the supreme court, he assigns only dates for the trail. The lawyers suggest three dates and he chooses one of them for the trial. But it is always the CJ who assigns the benches to hear the trial. This in fact is one of the important ways in which the CJ exercises control over the other Supreme Court judges. And anyway, since the CJ appoints the listing judge, she still has control through him. It is inconceivable to think that the listing judge, even if he did assign benches, would dare assign a bench that the CJ does not approve of. It appears that almost all those who oppose the present impeachment motion against Shirani Bandaranayake, are labouring under misconceptions. Would their attitude change if the proper facts are brought before them?

What Nihal J says

We have seen some strange arguments over the past few weeks from some of Sri Lanka’s best legal minds. Take for instance the argument put forward by Dr Nihal Jayawickrema in this newspaper a couple of weeks ago, saying that “The Bangalore Principles are not intended to form the basis for disciplinary sanctions, and certainly not for the removal of a judge from judicial office.” Dr Jayawickrema played a prominent role in the group that formulated the Banglore Principles of Judicial Conduct.  As we pointed out earlier, the present impeachment process in Sri Lanka is not a criminal proceeding. It only seeks to impeach Chief Justice Shirani Bandaranayake on the grounds of ‘misbehaviour’.  What better way to prove misbehaviour than to examine her conduct against the kind of conduct universally expected of a judge? You can of course use for this purpose the codes of conduct for judges of the USA or the UK instead of the Bangalore principles because the standards of conduct expected of a judge are basically the same everywhere in the democratic world.

But given the fact that a Sri Lankan C.G.Weeramantry and of course Jayawickrema himself was involved in the drafting of the Bangalore Principles, this is the closest we have come to having a code of judicial conduct of our own. So why should it not be used as an expected standard of behaviour? Mr Jayawickrema seems to be very keen to see that the Banglore Principles of Judicial Conduct should not be utilised in any way in the present impeachment process and has said that “Under our Constitution, a Judge of the Supreme Court may be removed from office only for “proved misbehaviour”, and not for non-compliance with the Bangalore Principles.” The fact is that when misbehaviour is being probed, a code of conduct is the first thing that the alleged wrongful conduct will be judged against.

In a previous article to this newspaper, Dr Nihal J has claimed that the present impeachment procedure violates Article 4 of our constitution. Even a cursory look at article 4 will show that there is no such contradiction.  Article 4(c) of the constitution says that the judicial power of the people shall be exercised by parliament through courts tribunals and institutions created by law except with regard to matters relating to the “privileges, immunities AND POWERS of parliament and of its members wherein the judicial power of the people may be exercised directly by Parliament according to law.” It should be noted that the power of impeachment is a power that the constitution has reserved for parliament according to Article 107 of the constitution and Article 107(3) says that parliament may at its discretion formulate laws or standing orders to enable it to carry out this function. The present standing orders of parliament were formulated accordingly, nearly three decades ago and both the two main political parties have brought impeachment motions against chief justices under these standing orders.

Courtesy Sunday Island