Impeachment of a Chief Justice: Controversy over Procedure and the
Reality!
Nihal Sri Amarasekere
Emotional sentiments have been widely expressed by various segments
of society, including pontificating statements issued by international
agencies, admittedly
Chief Justice, Dr. Shirani Banadaranayake |
without any comprehension or knowledge of the real
facts involved. Surprisingly, this also includes earnest pleadings made
by religious leaders, who however curiously do not so intercede on
behalf of the hapless poor, who are arraigned before Courts of Law, but
later acquitted, as innocent and not being guilty.
The foregoing perhaps have been fueled by arguments adduced in
several quarters, that Parliament may by Standing Orders provide only
for what is specifically stipulated in Article 74 of the Constitution,
and that a Parliamentary Select Committee, appointed under Standing
Orders cannot exercise judicial power, on the basis that, as per Article
4(c), read with Article 3 of the Constitution, that judicial power of
the people shall have to be exercised only through Courts, Tribunals and
Institutions created and established by law. Nevertheless, the scope and
nature of such ‘judicial power’ has not been defined in the
Constitution.
It is on such premise, that it had been adduced that Standing Orders
under Article 107(3) of the Constitution, cannot usurp the exercise of
judicial power, and that the exercise of such undefined judicial power
by Parliament can only be in relation to matters re – privileges,
immunities and powers of Parliament and of its Members, where judicial
power can be exercised directly by Parliament according to law, as per
Article 4(c) of the Constitution.
Parliamentary Select Committee
Would not the foregoing argument adduced be misconceived in the
context that Article 74(1) of the Constitution, which stipulates that
Parliament shall make Standing Orders subject to the provisions of the
Constitution, and that Article 107(3) of the Constitution specifically
empowers Parliament to make Standing Orders for all matters relating to
the presentation of an Address to remove a Judge of the Superior Courts,
including the procedure for the passing of a Resolution, and the
investigation and proof of the alleged misbehaviour or incapacity, and
the right of such Judge to appear and to be heard in person or by
representative.
As regards burden of proof, several Statutes, such as, the Debt
Recovery Act No. 2 of 1990 and the Recovery of Loans by Banks Act No. 4
of 1990, place the burden of disproving on the defendant.
Would not Article 107(3) of the Constitution standalone unfettered,
and could not be trammeled upon, with the Constitution being supreme.
Article 107(3) of the Constitution has expressly vested in Parliament
the exercise of such power for the process of removal of a Judge of the
Superior Courts, through Standing Orders established in April 1984,
which has provided for a Parliamentary Select Committee to conduct
inquiries into Charges made by not less than one-third of the total
number of Members of Parliament, and to report its findings thereon, and
if warranted for an Address of Parliament for the passing of a
Resolution for the removal of a Judge of the Superior Courts.
Thus Article 107(3) of the Constitution has laid down an express
power, limited only to the procedure of removal of a Judge of the
Superior Courts, and such Article 107(3) of the Constitution cannot be
rendered meaningless and a fiction or to be a mere mirage in the desert
by the foregoing arguments adduced on the constitutional provisions in
Article 74, read with Article 4(c) of the Constitution. The Supreme
Court has even given life and meaning to Articles 27 and 28 of the
Constitution, which are not justiciable, by pronouncing in Judgments,
that they come to life and force, when being interpreted together with
provisions of other Articles of the Constitution, and that otherwise in
the first instance there was no purpose and meaning for such Articles to
have been in the Constitution.
Ordinarily, an appointor of a person is vested with inherent right to
remove such a person appointed by him.
In this instance, though a Judge is appointed by the President, the
power to remove a Judge of the Superior Courts is restricted to the
extent provided for by the foregoing constitutional procedure, which
necessarily has to be complied with, to remove a Judge of the Superior
Courts. Such constitutional procedure cannot be rendered a nullity,
tantamounting to the suspension of such procedure, expressly laid down
in Article 107(3), read with Article 74(1) of the Constitution,
stipulating that the said Article 74 is subject to the provisions of the
Constitution, which therefore is subject to the operation of Article
107(3) of the Constitution.
A Judge of the Superior Courts having assumed office upon taking
Oath, under the existing Constitution, having been well and truly aware
of the foregoing constitutional procedure in the very Constitution under
which such Judge of the Superior Courts took Oath to assume office,
cannot later be heard to say, that the foregoing constitutional
procedure is inapplicable and/or unacceptable and/or unconstitutional.
If such procedure was unacceptable, then should not a Judge of Superior
Courts have instantly declined to have accepted such office under the
aforesaid procedure for removal laid down in the Constitution?
Superior Courts
In fact, Article 132 of the Constitution has specifically provided
for the Chief Justice, on his own Motion, or on a request made by two or
more Judges of the Superior Courts, to cause a matter, if the question
involved is in the opinion of the Chief Justice, is one of general and
public importance, then to direct that the said matter be heard by a
Bench comprising five or more Judges of the Supreme Court for a
determination thereon. No doubt, as adduced there could be much merit
that it would have been more desirable for such an inquiry to be
conducted by judicial peers, as prevalent in certain other countries.
Hence, if there had been any doubt, whatsoever, on the
constitutionality of the procedure for the removal of a Judge of the
Superior Courts, then the foregoing procedure stipulated in the
Constitution, which had been in existence since 1984, could have been so
directed by the Chief Justice, immediately upon having assumed office,
or requested for by any other two Judges of the Superior Courts, who
deemed such matter, as warranting to have been determined upon by a
Fuller Bench of Supreme Court, to have done so; thereby raising the
question, as why so belatedly now, at the stage of enforcement of the
power vested in Parliament under and in terms of Article 107(3) of the
Constitution?
In like manner as Article 107(3) of the Constitution pertaining to
Judges of the Superior Courts, Article 114 of the Constitution empowers
the Judicial Service Commission, established under Article 112 of the
Constitution, to exercise disciplinary control over other Judicial
Officers, below the rank of a Judge of the Superior Courts, and to
conduct inquiries into Charges against them, and if found guilty, to
even dismiss them. Is this also not constitutional procedure in the
nature of exercising judicial power as stipulated for the removal of a
Judge below the rank of a Judge of the Superior Courts? Similarly,
procedure for the removal of a Judge of the Superior Courts is
stipulated in Article 107(3) of the Constitution to be exercised by the
Legislature, itself. This is the prevalent reality!
Likewise, Article 56 of the Constitution has established the Public
Service Commission, which in terms of Article 57, read with Article 58
of the Constitution, is empowered to deal with categories of Public
Officers, including disciplinary control over them, and to conduct
inquiries into Charges against them, and if found guilty, to even
dismiss them.
Is this not also a procedure for the exercise of power of a judicial
nature? Furthermore, the Establishment Code Chapter XLVIII lays down the
Rules of Disciplinary Procedure, inter-alia, for the conduct of
inquiries and/or investigations into the conduct of Public Officers, who
are charged sheeted, and if found guilty, to suspend, interdict or
dismiss them, referred to as ‘Departmental Inquiries’. Is this also not
procedure for the exercise of power of a judicial nature?
The foregoing time tested procedures have been constitutionally and
administratively established for disciplinary control over Judicial
Officers and Public Officers, including for their dismissal, where
warranted. Likewise as aforesaid, under Article 107(3) of the
Constitution Parliament has been vested with power to deal with the
disciplinary control and dismissal of Judges of the Superior Courts.
Hence what is the difference, and why this intriguing,
misinterpretation and discrimination with a hue and cry, whilst the
aforesaid constitutionally established procedures have been accepted in
other quarters, without any demur?
It should also be borne in mind, that Criminal Trials before a Jury,
even in murder cases, are decided upon by a Jury, comprising of ordinary
citizens, and not Judicial Officers.
The Judge delivers Judgment, on the findings and verdict of the Jury.
In the foregoing circumstances, how can one maintain the untenable
argument, that power in the nature of judicial power can be exercised
only within the ambit of Article 4(c) of the Constitution? |