IMPEACHMENT: PSC FULFILLED ALL REQUIREMENTS
MARK COORAY
LLB (HONS)(CEY), PHD (CAMB), PHD (COL)
PART I -
REFLECTIONS ON THE IMPEACHMENT DEBATE
– THE CONSTITUTIONAL ISSUES
THE CONSTITUTIONAL AND LEGAL IMPLICATIONS OF THE IMPEACHMENT AND THE
BACKGROUND
Three constitutions and the independence of the judiciary
Sri Lanka has a constitution which has many defects. The 1931
Constitution was not perfect. The 1948 Constitution was not perfect. The
1972 Constitution was not perfect. The 1978 Constitution was not
perfect. Where do you find a perfect Constitution, on this side of
heaven and eternity?
I express some views on the Constitution and what constitutes
independence of the judiciary.
I have in my books; The History of Constitutional Government in Sri
Lanka 1796-1972, Reflections on the Constitution of Ceylon and Essays on
the Constitution of Ceylon and other writings in local and foreign (UK,
Canadian, Australian) academic publications commented on the 1948 and
1972 Constitutions. I have at some length examined the sections in the
1972 Constitution on judicial review and exposed severe short comings. I
have not written on the 1978 Constitution. I believe the 1978
Constitution made worse, an existing bad situation, in relation to the
independence of the judiciary under the previous Constitution.
Each of the three Constitutions was imperfect. There is no perfect
Constitution. Each Constitution was progressively more imperfect. The
source of our problems today around the independence of the judiciary
are the two immediately prior Constitutions. The 1948 Constitution was
neutral and British conventions relating to independence of the
judiciary were observed. The following Constitutions wilfully undermined
the independence of the judiciary.
Differentiate between the legal and the other dimensions
The analysis to follow focuses on (i) constitutional and legal
consequences (ii) the rights and wrongs of specific actions, based on
ethical values and (iii) the wider ethical, philosophical, social,
political and other factors.
It is important to understand the difference, between what is illegal
and unconstitutional and also between what is not legal and not
constitutional, but permissible.
The clear and honest thinker keeps (i) separate from (ii) and (iii).
I believe in the importance of obedience for fundamental laws of a
state. I might disagree with content, but I believe in obedience. The
debate on the impeachment has tended to blur these dimensions.
The background to dismissal of judges of superior courts and inferior
courts
An article published in the Sunday Island, December 23, 2012 provides
an useful background to the analysis to follow. What follows is the
entire article. The author’s name is not given in the newspaper.
The Court of Appeal relied on an interpretation of Article 138(1) of
the constitution which gives it the power to “correct all errors in fact
or law which may be committed by any court of first instance, tribunal
or any other institution”. Why the Court thinks it has the jurisdiction
to correct perceived ‘errors in fact and law’ made even by parliament is
because of the phrase ‘any other institution’ which also appears in
Article 140, which the Court has emphasised in bold letters in its
determination. Even a cursory reading of articles 138 and 140 will show
that the term “any court of first instance, tribunal or any other
institutions” refers to judicial bodies below the Court of Appeal
(written from the high to the low).
The term “any other institution” in articles 138 and 140 obviously
refers to minor judicial bodies ranking below even the tribunals. If the
term “any other institution” is so broad that it includes the
Parliament, then it has to inevitably include the Supreme Court as well.
Does that mean that the Court of Appeal has the power to ‘correct all
errors of fact or law’ that may be committed by the Supreme Court?
Brushed off
This kind of determination will be summarily brushed off by
Parliament. Constantly having their decisions publicly ignored will do
no good to the judiciary in this country. The Parliament Powers and
Privileges Act of 1953 is very clear on the powers of Parliament.
Section 7 of the Act states that the immunities and powers of members
of Parliament will be those conferred by this act and those exercised by
the UK House of Commons. The Joint Committee on Parliamentary Privilege
of the British Parliament of 1999 had the following to say: Section 229
– “What happens within Parliament is a matter for control by Parliament
alone. Such matters will not be reviewed by the courts. So far as the
courts are concerned, they will not allow any challenge to be made to
what is said or done within the walls of Parliament in performance of
its legislative functions and protection of its established privileges”.
Section 232 – “Both Houses have long claimed, and succeeded in
maintaining, the right to be the sole judges of the lawfulness of their
own proceedings and to determine, or depart from, their own codes of
procedure.
“Courts of law accept Parliament’s claim that they have no right to
inquire into the propriety of orders or resolutions of either House
relating to their internal procedure or management. Except for purposes
of statutory interpretation, the courts do not ‘look behind the Act’ or
consider themselves competent to consider the processes within
Parliament preparatory to enactment. In the processes of Parliament
there will be much consideration whether a bill should or should not in
one form or another become an enactment. When an enactment is passed
there is finality, unless and until it is amended or repealed by
Parliament”.
Landmark
In the landmark Privy Council case of Madzimbamuto v Lardner Burke
(1969) Lord James Reid said the following about the powers of the courts
vis-a-vis the Parliament: “It is often said that it would be
unconstitutional for the United Kingdom Parliament to do certain things,
meaning that the moral, political and other reasons against doing them
are so strong that most people would regard it as highly improper if
Parliament did these things. But that does not mean that it is beyond
the power of Parliament to do such things. If Parliament chose to do any
of them the Courts could not hold the Act of Parliament invalid”.
The UNP has taken the position that the CJ should be removed only
through a process based on the Latimer House Principles. As such it is
pertinent to examine the argument put forward regarding the Latimer
House principles. The Latimer House Guidelines for the Commonwealth on
Parliamentary Supremacy and Judicial Independence dated 19 June 1998 had
the following to say about the procedure to remove judges – ” In cases
where a judge is at risk of removal, the judge must have the right to be
fully informed of the charges, to be represented at a hearing, to make a
full defence and to be judged by an independent and impartial tribunal.
Grounds for removal of a judge should be limited to:
(a) inability to perform judicial duties and
(b) serious misconduct”.
The important phrase here is “to be judged by an independent and
impartial tribunal”.
Interesting
Britain is the head of the Commonwealth and we may perhaps gather
what exactly was meant in terms of the Latimer House Principles by
studying the British Constitutional Reform Act of 2005 which was
promulgated long after the ratification of the Latimer House Principles
were formulated. One of the most radical aspects of the British
constitutional reform was that a new 12-member Supreme Court was created
to be highest court in Britain and it would function outside the House
of Lords breaking with centuries of British tradition. The interesting
thing is to note how these judges of the Supreme Court were to be
removed. Article 33 of the British Constitutional Reform Act of 2005 is
as follows:
“A judge of the Supreme Court holds that office during good behaviour,
but may be removed from it on the address of both Houses of Parliament”.
That is all this huge 323-page Act of Parliament says about the
removal of judges of the Supreme Court. This provision to remove Supreme
Court judges basically follows the time honoured British practice.
There is no talk of an ‘impartial tribunal’ or about filing charges,
hearings and the right to defend oneself. Somebody files a motion in
parliament and after due debate, parliament will decide whether to sack
or retain the judge.
This was the good old system that the British bequeathed to us when
we gained independence.
Article 52(2) of the Ceylon Constitution of 1947 was identical to the
above quoted article in the British Constitutional Reform Act of 2005.
When Ceylon became a republic, the same tradition was followed and
Article 122(2) in the 1972 Republican Constitution also had the
identical wording as the 2005 British Act.
Even though the 2005 British Constitutional Reform Act does not apply
the so-called Latimer House Principles to the Supreme Court, these
principles have been applied to the lower courts.
Good behaviour
Take Articles 133 and 135 of this Act which lays down the rules for
the removal of judges in Northern Ireland. It stipulates that the Chief
Justice, Justices of Appeal and judges of the High Court of Ireland hold
office during good behaviour and they can be removed only by an address
presented to the British parliament in Westminster (not the Northern
Ireland Assembly) and before such an address is presented to parliament,
the allegations have to be inquired into by a three member tribunal
which will recommend whether such an address for removal should be made
to parliament. Such a tribunal will comprise of a judge of the British
Supreme Court, a sitting or former judge of the Appeal court of England
or Scotland and a person from outside the legal profession.
Thus we see that the British Constitutional Reform Act of 2005, gives
much greater protection to the “Lord Chief Justice” of Ireland than to a
member of the British Supreme Court. We must take care not to be misled
by nomenclature here. According to the British Constitutional Reform Act
of 2005, England, Ireland and Scotland all have “Chief Justices” but
these so called chief justices are all ranked below the 12-member
British Supreme Court.
The person who holds a position analogous to that of the chief
justice in Sri Lanka is the President of the Supreme Court of Britain.
The important thing to note is that the Latimer House Principles have
been applied by Britain only to the subordinate judiciary – not to the
highest court. The British Judicial Discipline (Prescribed Procedures)
Regulations 2006 which complements the Constitutional Reform Act of 2005
confirms this application of the Latimer House Principles to the lower
judiciary.
Judicial body
What this means is that the British constitutional experts have given
due recognition to the fact that being in the highest judicial body is a
different ball game altogether and the rules that may apply to the lower
judiciary cannot be applied to the highest court. The Constitutional
Reform Act of 2005 shows clearly that the British like the Americans
believe that the most competent body to remove judges of the highest
judicial body is the legislature. Like the Americans, the British too
have placed the fullest confidence in their legislature to be able to
make a considered decision to remove a judge of the highest court.
Australia is the current Chairman of the Commonwealth. In Australia,
until a few days ago, the provisions relating to the removal of judges
of the highest courts was identical to Article 33 of the 2005 British
Act. According to Article 72(ii) of the Australian Constitution, judges
of the highest court can be removed on an address presented to both
houses of parliament.
Impeachment motions
Then just this month, the Australian Parliament passed the Judicial
Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of
2012, which on the face of it seems to bring the judges of the highest
Australian courts under the Latimer House Principles. Article 13 of this
brand new Act, has provided for the appointment of ad hoc ‘parliamentary
commissions’ to inquire into the conduct of a judges before impeachment
motions are proceeded with. Such a commission will consist of three
individuals appointed by the prime minister after consulting the leader
of the opposition. At least one member of such a commission should be a
former senior federal or state judge. Even though this new piece of
legislation appears to indicate that Australia has implemented the
Latimer House Principles in full, closer scrutiny will show a different
picture. In this regard the following should be taken note of:
1. The Australian Judicial Misbehaviour and Incapacity (parliamentary
commissions) Act No; 188 of 2012, does not alter in any way, Article
72(ii) of the Australian constitution which says that judges of the
highest courts can be removed by means of an address in both houses of
parliament.
2. The appointment of a Parliamentary Commission to inquire into
allegations does not take place automatically when parliament receives a
motion to remove a judge. Separate motions have to be presented in both
houses of parliament (in the same session) to institute such a
parliamentary commission.
3. There is no permanent Parliamentary Commission to examine
impeachment motions – they will be created (if at all) only as and when
an impeachment motion comes before parliament.
4. There is no mandatory requirement that the Australian parliament
has to appoint such a parliamentary commission every time an impeachment
motion comes before them.
5. Section 3(2)(a) of the Australian Judicial Misbehaviour and
Incapacity (parliamentary commissions) Act itself states that this Act
is not necessary to institute a parliamentary commission to investigate
allegations of misconduct against judges which means that commissions of
inquiry can be appointed even outside the provisions of this act if the
Australian parliament decides that such would be the best course of
action.
6. Even if a Parliamentary Commission is appointed to inquire into
the allegations against judges, section 3(2) (b) of the Act stipulates
that the findings of such commission will NOT be the only means by which
parliament will decide whether to impeach the judge concerned. What this
means is that the decision of the Parliamentary Commission is not
binding on the Australian parliament and whatever the decision arrived
at by the Commission, parliament will still be free to do as it sees
fit. Hence what we see here is that even in the Australian constitution,
the original Article 72(ii) which allowed for the removal of judges on
an address in both houses of parliament is completely intact. That right
has not been undermined one whit. All that Judicial Misbehaviour and
Incapacity (Parliamentary Commissions) Act No; 188 of 2012 has done is
to give the Australian parliament the OPTION of appointing a
parliamentary Commission to inquire into allegations of conduct. There
is also the added convenience that this Act lays down a procedure for
such inquiries.
The Australian parliamentary commissions to inquire into the conduct
of judges will be both non-binding and non-exclusive. The report of the
Parliamentary Select Committee that inquired into the impeachment motion
against the CJ came out last week, printed in two thick volumes. When
examining the transcripts of the arguments that went on in the PSC, it
always seemed to centre on matters of procedure with John Amaratunga
asking at one point what the burden of proof was going to be. The burden
of proof in impeachment motions has been well established.
Natural justice
The Australian Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Act which we have just referred to, states in article 19(1)
that the parliamentary commission set up under this Act are “not bound
by the rules of evidence and may be informed on any matter in any manner
it thinks fit”. Article 20 of this Australian Act stipulates that a
parliamentary commission must act in accordance with the rules of
‘natural justice’ which was specified as
(a) giving the defendant particulars of the allegation being
investigated
(b) offering the defendant a reasonable opportunity to make an oral or
written statement in his defence
(c) offering the defendant reasonable access to any documents or
other things acquired by the Commission for the purposes of the
investigation
(d) giving the defendant a draft of the report and an opportunity to
give comments on the draft report. (If one reads the voluminous report
of the PSC in the Shriani Bandaranayake case, all the above requirements
seem to have been fulfilled except the last which obviously could not be
done because the defendant and her lawyers walked out of the
proceedings.) With regard to the ‘burden of proof’ in impeachment
proceedings, the 1933 impeachment trial of Federal Judge Halsted Ritter
in the USA is of special significance.
To be continued
The Australian Freedom Coalition, Melbourne, Victoria, Australia, a
branch of the World Freedom Movement, presented the Australian Valiant
for Freedom Award to L.J.M. Cooray LL.B (Cey), Phd (Camb), Phd (Col) who
Received this Award at The Seventh Annual Celebration in Melbourne of
World Freedom Day On March 15, 1987 with the Citation: “ With a rare
determination, in the face of all kinds of difficulties, he has promoted
the cause of freedom in his adopted country Australia, especially with
his writing he has confounded educationalists and the media as well as
ordinary Australians, with commonsense views and challenged us all to
treasure our freedom and to use it with responsibility” |