By Tissa Attanayake –
Until 1700 the King of England had the power to appoint and remove Judges. The King exercised his powers to remove Judges who incurred his displeasure. Therefore the Parliament of England made provision to secure the independence of Judges in the Act of Settlement 1701. According to this Act the Judges Commission was made Quamdiu se bene Gesserint, ie. for good behavior, subject to the power of the King to lawfully remove a judge upon an address made by Parliament. Since then it is regarded as an inherent power of Parliament and has been exercised by all Commonwealth Parliaments. The Commonwealth Parliaments make provision for an address to be made to the Head of State on the grounds of proven misbehavior or incapacity. Similar, provisions are contained in Article 107 (2) of the Constitution of Sri Lanka. Such a Resolution must set out the full particulars of the alleged misbehavior or incapacity and signed by minimum one third of total number of Members of Parliament.
The Standing Orders provide for the automatic appointment of Select Committee upon the presentation of such a petition to the Speaker. The Speaker who entertains such a resolution places it on the Order Paper of Parliament to investigate and report. Therefore the question of supporting or opposing such a Resolution does not arise. A Select Committee shall require the Judge concerned to make a written statement in defence within such period as specified. The Judge concerned also has the right to be heard by the Committee either in person or by representation. The burden of establishing the charges is on the Members who make the allegations. The Select Committee is required to report its findings together with the evidence within one month from the commencement of the sittings of such Select Committee. The proceedings of the investigation shall not be made public unless and until a finding of guilt is made against such Judge is reported by the Select Committee. After the report is presented to Parliament a Resolution for the removal of such Judge may be proceeded with. If such a Resolution is passed, the Speaker shall present the Address to the President.
Very rarely have Parliaments of the Commonwealth presented addresses for the removal of Judges. In the United Kingdom it was exercised once in 1830 to remove a Judge for corruption. In India it was exercised twice. In Sri Lanka the Parliament appointed a Select Committee to inquire into and report on the speech alleged to have been delivered by the Hon. N D M Samarakoon QC, Chief Justice, at the Annual Awards Ceremony of the Sinnathuray Commercial Tutory on 14 March 1984.
The members of the Committee were:
M L M Aboosally
Dr S Y S B Herat
Majority of the members were of the view that all of the statements reported may not prove disrepute and may not bring the entire Supreme Court into disrepute, but they are not befitting the holder of the Office of the Chief Justice. The nature of the action to be taken was left to the House. Thereafter a Resolution signed by 57 Members of Parliament was placed on the Order Paper of 05 September 1984 for the presentation of address to the President requesting for the removal of the Chief Justice.
The members of the Committee were:
Dr Ranjith Atapattu
M A Abdul Majeed
The majority of the members of the Committee stated as follows:
The standard of proof required is very high. In all the circumstances of this case, while this Committee cannot but condemn this speech, we cannot come to the conclusion that the Hon. Chief Justice is guilty of proved misbehavior.
Subsequently Chief Justice N D M Samarakoon, QC, resigned from Office.
The Parliament acts in a judicial capacity from the time it appoints a Select Committee to hold such inquiry until the debate on the Resolution is presented as an Address to the Head of State is concluded. This is specifically provided for in our Constitution under Article 4 (c ): The judicial power of the People shall be exercised by Parliament directly in regard to matters relating to its powers. Such powers include presentation of an address to the President under Article 107. Since no Court has defined “misbehavior or incapacity”, Parliament has to make its determination case by case. This results in Members of Parliament acting in a judicial capacity bringing their minds to bear on the facts as Judges would do. Members should refrain from acting politically in such an instance. This is one key safeguard in exercising these powers. The Media has reported that the Members of Government Parliamentary Group will be presenting a Resolution of an address to the President calling for the removal of Chief Justice Dr Shirani Bandaranayake. One Member of Parliament Jayaratne Herath, Deputy Minister of Industry and Commerce quoted an anonymous letter pertaining to the Chief Justice during a recent Adjournment debate in Parliament. This makes him unfit to sit in Parliament if a Resolution to remove the Chief Justice is debated in the House. This is why the Leader of the UNP has directed the UNP Members of Parliament to refrain from making any comments on this issue. At all times Parliament should act according to the established traditions. We will also come under scrutiny. It is likely that the Commonwealth Parliamentary Association, the Commonwealth Magistrates’ and Judges’ Association and the Commonwealth Lawyers’ Association will follow these proceedings to ensure that the Latimer House Declaration is upheld by our Parliament. We must also keep in mind the Commonwealth Law Conference consisting of Judges, Academics and Lawyers, which will meet in South Africa in April 2013 as well as the Commonwealth Heads of Government Meeting in 2013 in Colombo. It will also be followed by other Parliaments and legal institutions. Therefore it is the duty of all Members of Parliament to strictly adhere to the judicial traditions which are associated with such proceedings. We call upon the Honourable Speaker to ensure that there is no violation by any Member of Parliament and that the rights of all parties are protected.
The UNP has also stated that it will support action taken by the Judges’ Association and the Bar Association to safeguard the independence of the judiciary which is included in the sovereignty of the people.
*Statement issued by Thissa Attanayake, General secretary of the United National Party