Can the Parliament exercise judicial power of thepeople directly?

Raja Goonaratne -Attorney-at-Law, Senior Lecturer - The Open University, National Housing Commissioner

This is a million dollar question that is being raised, debated and argued in every nook and corner of the country. Here is my analysis of the relevant Articles of the Constitution to find answer for this pressing dilemma.

Sri Lanka has a democratic system of government. The cardinal principle of democracy is that the sovereignty is in the people. The sovereignty means and includes peoples’ triple power viz. people’s legislative power (power to make and unmake laws), people’s executive power (power to enforce and implement such laws) and people’s judicial power (power to interpret and apply those laws to settle disputes affecting rights of people). These triple powers are considered the three columns of democracy on which the entire system of democratic government rests.

Chief Justice, Dr. Shirani Bandaranayake

Richard Nixon (January 9, 1913 – April 22, 1994) was the 37th President of the United States, serving from 1969 to 1974, the only President to resign the office

In dictatorial or monarchical systems of governance, these triple powers are exclusively centered and exercised by one person or body of persons. They may be exercising those triple sovereignty powers of the people with the acquiescence of the people or may have grabbed by force of fire or conspiracy.

However, under democracy, people offer or transfer their sovereignty powers to their representatives who are elected by the people through elections. Accordingly, those representatives elected by the people exercise people’s sovereignty either directly or indirectly viz through various institutions established by the constitution.

Article 4 of the 1978 Constitution provides clearly that sovereignty is in the people and Sub Article (a) and (b) further provides that the peoples’ legislative and executive powers are exercised by the elected representatives of the people.

People’s judicial power

The question that is being raised and debated today in Sri Lanka is who can exercise the people’s judicial power? In other words is it only the judiciary or can Parliament too exercise people’s judicial power? If the answer to this question is yes, then further question arises as to how and when the Parliament can exercise people’s judicial sovereignty.

The experts of all hues have expressed both for and against but the answer can be found within the four corners of the Constitution itself. My attempt here is to analyze the relevant provisions and provide a simpler explanation to the citizenry.

Accordingly, under the relevant Articles of the Constitution, the Parliament (Legislature) can exercise people’s judicial sovereignty either directly or indirectly. This proposition has been embodied in Articles 4 (c) and 107 (2) of the Constitution. Article 4 (c) has prima facie two limbs separated each by the word ‘except’.

(a) First limb of Article 4 (c) provides that people’s judicial power shall be exercised by Parliament through courts, tribunals or other institutions created, established or recognized by the Constitution and law. In this limb the phrase ‘by Parliament and through courts....’ makes it crystal clear that in this instance the legislature exercises people’s judicial power indirectly viz through courts etc.

However the most important question is can the Parliament directly exercise people’s judicial power? In other words, can the Legislature turn itself into a judicial tribunal and perform judicial functions?

There are only two instances where the Parliament is empowered to exercise peoples’ judicial power directly under the present constitution. These two instances are embodied in limb two of Article 4 (c) and Article 107 (2). Those two instances are as follows:

(i) Firstly limb two of Article 4 (c) provides that the Parliament exercises people’s judicial power directly in case of disputes arising out from matters relating to privileges and immunities of members of the Parliament.

(ii) Secondly Article 107 (2) provides that Parliament directly exercises the people’s judicial power in case of removal of the judges of the Supreme Court and Court of Appeal on the ground of incapacity and proven misbehaviour. In this instance too the Parliament turns itself into a judicial body and performs judicial functions.

Watergate building. Watergate scandal was a political scandal that occurred in the United States in the 1970s as a result of the June 1972 break-in at the Democratic National Committee headquarters at the Watergate office complex in Washington.

So now it is quite clear that the substantive law relating to the exercise of people’s judicial power by the Parliament directly can be found in Limb two of Article 4 (c) and Article 107 (2) of the Constitution.

Let us now analyze the procedural law relating to the removal of superior court judges in details.

Constitutional procedure

The President (Executive) appoints judges to the superior court but the President has no powers to terminate their service directly. The tenure of superior court judges terminates on three grounds viz death, retirement and removal. The first two grounds occur naturally.

However it is in case of removal that the legislature directly exercises people’s judicial power. In other words, Parliament turns itself into a judicial body again. The Parliament can remove superior court judges in exercising the judicial power of the people directly only on two grounds viz incapacity and proven misbehaviour.

Now another question crops up viz where is the procedural law relating to removal of superior court judges on the ground of incapacity or misconduct by the Parliament in exercising the people’s judicial power directly? In other words, who decides misconduct and incapacity of judges viz entire Parliament sitting as a tribunal or only a committee and how it is decided viz what procedure to be applied ie the Civil Procedure Code, Criminal Procedure Code, the procedures provided in the Establishment Code or other similar procedural laws?

The procedure relating to the removal of judges by the Parliament too has been clearly provided in Articles 107 (2) and (3) of the Constitution. So, that procedure can be termed as Constitutional Procedure which can be found in the Constitution only.

However this procedure has two substantive facets:

1. The first facet of the procedure deals with the initiation of the resolution for the removal (popularly known as impeachment motion). This procedure has been provided in Article 107 (2) of the Constitution. It is a simple procedure which consists of the following:

(a) Firstly, notice of resolution (popularly known as impeachment motion) giving full details of alleged misbehaviour or incapacity singed by one third of the total members of the Parliament should be presented to the Speaker. Speaker can refuse to place such resolution on the Order Paper unless this signature requirement has been fulfilled.

(b) Secondly, that resolution should be passed by the majority of the total number of members of Parliament (including those not present);

(c) Thirdly, that resolution should be presented to the President and then President removes the judge by Presidential (Executive) Order.

The second facet of the removal procedure deals with the investigation of the alleged misbehaviour or incapacity. The procedural law governing this aspect of impeachment process has been provided in Article 107 (3) which says that the Parliament shall by law or Standing Orders provide for all matters relating to passing of the resolution, the investigation and proof of the alleged misbehaviour and incapacity, and the right of the judge to appear and in person or by representatives.

Tamil Diaspora

According to this Article there are two mechanisms that the Parliament an adopt in dealing with the investigation procedure – viz, firstly, to enact separate law or secondly, to formulate Standing Orders.

Sri Lanka has adopted the second method whereas in India there is a separate Act known as Judge Inquiry Act of 1968 (this Act too is now proposed to repeal by Judicial Standards and Accountability Bill).

So, the Standing Orders 78A (1) – (8) deals with all aspects of investigation procedure viz appointment of Select Committee by the Speaker, composition of the Select Committee, quorum of the Committee, issuing notice of appearance to the judge, summoning witness and documents of evidence, time frame within which such investigation should conclude, extension of time for the investigation and reporting of the findings to Speaker etc.

The procedures laid down in the Standing Orders enshrine the principles of both methods of procedure used in litigation viz. Adversarial Procedure and Inquisitorial Procedure and also of the general principles of due process.

However some NGO dependent ‘black-courts’ have raised issues that the Parliament cannot exercise judicial power directly through Standing Orders as they are not laws and also the procedure laid down in the Standing Orders do not fit into the procedure in the Civil Procedure Code etc. etc. They even went before all mighty deities and dashed coconuts pleading the wrath of all mighty (G) gods on Select Committee Members. However it seems that (G) gods too have read the Constitution so their dashing coconut yielded no result and the impeachment process is to reach its logical conclusion soon.

So what those NGO – dependent and Tamil Diaspora-favored and guided black courts should have done was to dash those coconuts on their heads to reawaken their dormant faculties and start re-reading the Constitution.

Civil or criminal litigation process

In this context, let us now examine the legality of the Standing Orders of the Parliament. Standing Orders are the rules of Parliament meant for the conduct of internal business of the House. They are formulated by the Parliament under prerogatives of the legislature. They are equal to laws passed by the Parliament.

Therefore no superior or inferior courts or other judicial bodies have any power to judge its legality. In other words no courts have any power to make rules to be used for the conduct of internal business of the House.

The jurisdiction of the Supreme Court to make rules have been explicitly dealt with in Article 136 (1) A-L of the Constitution. None of these provisions provides that the Supreme Court has rule making jurisdiction in connection with matters pertaining to the internal business of the House.

There is another issue that was raised in connection with the investigation of the Select Committee i.e. whether the proceeding should be opened to the media. Standing Order 78A (9) provides for this matter. It clearly provides that unless and until a finding of guilt on any of the charges against such judge is reported to Parliament by such Select Committee the proceeding of investigation should not be made public.

In normal civil or criminal litigation process too there are provisions to conduct the proceedings either in open court or privately (in camera) viz in the chamber of judge. This is to safeguard the defendant, plaintiff and witnesses as well. Also some guidance can be found in Article 17 of the UNO Resolution (No 40/32) on Independence of Judiciary of 1985. It provides that the initial stages of impeachment motion against judges should be conducted confidentially.

There is yet another issue that should focus attention ie. can the Supreme Court review the decision given by the Select Committee or the Parliament on impeachment motion.

The Supreme Court of USA is considered as one of the most powerful Supreme Courts in the world due to its wide powers of judicial review of laws passed by the Congress. However USA Court of Appeals has given a landmark judgment in the case of Nixon vs. United States.

In this case Nixon, a Chief Judge of the United States District Court, was the subject of an impeachment hearing before the Senate. The Senate appointed a committee under Senate Rule XI to investigate and report the findings regarding the impeachment of Nixon.

Impeachment proceedings

Based on the findings of the committee and oral arguments from both the committee and Nixon, the Senate convicted Nixon.

Nixon filed action in the court claiming that Senate Rule XI violates the constitutional grant of authority to the Senate to “try” all impeachments because it prohibits the entire Senate from taking part in the trial and evidentiary hearings. The District Court and the Court of Appeals held that the claim was non justiciable because judicial review of the Senate’s trial would introduce risks of violation of checks and balances.

This principle has been laid down in Article 26 of the UNO Resolution (No 40/32) on independence of Judiciary in 1985.

It is clear therefore that the courts have no power to review the decisions given by the Select Committee on impeachment motion. The foreign missions that express views saying ‘very concerned on impeachment motion’ need to read these judgments of their own home courts.

Let us now examine the latest status of impeachment proceedings. The incumbent Chief Justice appeared before the select committee two occasions and on the third day CJ walked off and the opposition four members of the Select Committee too walked off on the same day alleging that the manner of investigation was not proper. Yet a principal witness viz. a sitting judge of the Supreme Court continued to give evidence. This scenario raises two major issues viz. whether Select Committee lacks the quorum to proceed ahead and whether Select Committee can continue proceedings despite CJ’s walk off.

Standing Order 78 A (4) provides that the quorum of the Select Committee is half the number of members of the Committee. It is clear therefore that leaving of four opposition members will not affect the legality of the Select Committee. So that Select Committee can continue to investigate despite their absence.

The leaving of CJ also will not affect the continuance of the proceedings. The appearance of CJ on three occasions before the Select Committee has confirmed the fact that CJ has accepted the jurisdiction of the Committee and denial of which at this juncture governs by the principles of estoppels.

On the other hand CJ could have made a preliminary objection on the first day of the proceedings which would seem more prudent than walking off on the third day.

However such objections too would serve no purpose and has no legality.

Now the Select Committee has concluded the proceedings and the report has been delivered to the Speaker.

However under Standing Order 78A (1) it provides that impeachment resolution shall not be proceeded with until after the expiration of a period of one month from the date on which the Select Committee appointed by the Speaker.

Accordingly, there are a few days ahead of debating and passing the impeachment resolution in the Parliament.

In fact the framers of Standing Orders have allowed such mandatory period for obvious reasons viz. give time to the sitting judge to wrap up the official functions and step down before formally impeached by the Parliament. If impeachment resolution passed the judge will have to face dire consequences of personal nature viz. Loss of pension and other emoluments enjoyed by them under normal termination of tenure of office.

I wish that CJ will not to fall into the basket of Sri Lankans (handful only) who sell the country to west in retaliation for their sins.