IMPEACHMENT: PSC FULFILLED ALL REQUIREMENTS-PART II:

Impeachment essentially an 'ouster proceeding'

The following is the continuation of the article by Mark Cooray LLB (HONS)(CEY), PHD (CAMB), PHD (COL) published in the Daily News on page 3 yesterday. The earlier article (relying on an extract from the Sunday Island) examined the roots of the concept of an address presented by Parliament or Congress for impeachment. A very important distinction was drawn between minor judiciary and the highest courts, in relation to removal of judges. This article now continues from the point the earlier extract ended.

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. During the hearings of the Ritter case, Congressman Hatton W Sumners, Chairman of the Judiciary Committee of the US House of Representatives explained that impeachment was essentially an 'ouster proceeding' as opposed to a criminal proceeding.

Agreeing with this view, the presiding officer at the Ritter impeachment hearing Senator Nathan L. Bachman of Tennessee made the observation that an impeachment proceeding before the Senate "has neither of the harshness and rigidity of the criminal law nor of the civil proceedings requiring less particularity".

Congressman Sam Hobbs another Member of the House of Representatives appearing before the Senate articulated three principles on the burden of proof and evidence in an impeachment trial: 1. Impeachment trials are not criminal trials in any sense of the word. 2. The burden of proof in this case is not ''beyond a reasonable doubt'', as it is in criminal cases. 3. The presumption of innocence, which the accused has in a criminal case, is not available to a respondent in an impeachment trial. Sri Lankans should take particular note of the third point articulated by Congressman Hobbs to the effect that respondents in an impeachment proceeding are not supposed to enjoy even the presumption of innocence.

Congressman Hobbes asserted further: "If judges can hold their offices only during good behaviour, then it necessarily and logically follows that they cannot hold their offices when they have been convicted of any behaviour that is not good. If good behaviour is an essential of holding the office, then misbehaviour is a sufficient reason for removal from office".

During the US Senate trial of Judge Ritter, several Senators made observations which are of relevance here. In a joint statement, Senators Borah, La Follette, Frazier, and Shipstead said: "We did not,... seek to satisfy ourselves as to whether technically a crime or crimes had been committed,... we sought only to ascertain from these facts whether his conduct had been such as to amount to misbehaviour,...There are a great many things which one must readily admit would be wholly unbecoming, wholly intolerable, in the conduct of a judge, and yet these things might not amount to a crime".

Senator Elbert Thomas of Utah declared during the Ritter case - "Tenure during good behaviour is in no sense a guaranty of a life job, and misbehaviour in the ordinary, dictionary sense of the term, will cause it to be cut short..."

In Congressman Sumner's (The House of Reps Judiciary Committee Chairman) final argument before the Senate in the Ritter impeachment, he made the following points:

1. We do not assume the responsibility of proving that the respondent in this case is guilty of a crime as that term is known to criminal jurisprudence.

2. We do assume the responsibility of bringing before you a case, proven facts, the reasonable and probable consequences of which are to cause the people to doubt the integrity of the respondent. 3. We take the position, first, that justice must be done to the respondent. The respondent must be protected against those who would make him afraid. 4. But we take the position also that when a judge on the bench, by his own conduct, does that which makes an ordinary person doubt his integrity, that judge must go. 5. If confidence in the courts of this country is destroyed it is going to be destroyed from within by the judges themselves. That is one thing which neither the House nor the Senate can permit. 6. When the people put him (the respondent) there, they said to him, ''All we ask of you is to behave yourself.'' Good behaviour! What does that mean? It means obey the law, keep yourself free from questionable conduct, free from embarrassing entanglements, free from acts which justify suspicion; hold in clean hands the scales of justice. 7. That means that he shall not take chances that would tend to cause the people to question the integrity of the court, because where doubt enters confidence departs. When a judge on the bench, by his own conduct, arouses a substantial doubt as to his judicial integrity he commits the highest crime that a judge can commit under the Constitution. 8. It is not essential to prove guilt. There is nothing in the Constitution and nothing in the philosophy of a free government that holds that a man shall continue to occupy office until it can be established beyond a reasonable doubt that he is not fit for the office. It is the other way. When there is resulting from the judge's conduct a reasonable doubt as to his integrity he has no right to stay longer. Judge Halstead Ritter was sacked.

This concludes the reliance on the article published in the Sunday Island of December 23, 2012.

Article 107 and Standing Order 78A

Article 107(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978 enacts: "Every Judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehavior or incapacity:..."

The word "address" and power to Parliament for dismissal of a superior court judge was used first in the Act of Settlement of 1701. Under the present Constitution what is required is an address by Parliament and an order by the President, which follows the principle in the Act of Settlement, 1701 and re-enacted in same wording more recently.,as stated above. Many counties have adopted this principle.

The words "address" and "Parliament" raise immediate connections with the Westminster constitutional system. A fundamental and elementary principle which extends to all Parliaments, and also Congress Senate and House of Representatives in United States is that the internal procedures of Parliament are not justiciable. They are not subject to judicial review. The procedure of legislation is not justiciable, unless there is a mandatory constitutional provision. The workings of Parliament including proceedings of Parliament are not justiciable and cannot be subject to judicial review. Judicial review is for completed legislative and executive action.

The functioning of a Parliamentary Committee can never be the subject of judicial review. A Parliamentary Committee is not bound to follow principles of natural justice. This is both a fundamental and an elementary principle of constitutional law. This topic is analysed in my books Reflections on the Constitution and the Constituent Assembly and Constitutional Government in Sri Lanka 1796-1977.

Constitutional lawyer, President's Counsel and former UNP Minister N K Choksy has stated his views on the impeachment in The Sunday Island December 16, 2012 and The Sunday Observer, December 16, 2012.

He says: "Article 107 specifies that a judge of the Supreme Court cannot be removed from office, "except by Order of the President made after an address of Parliament is presented to the Parliament for her removal". Article 107(2) stipulates that the address of Parliament to the President must be supported by a majority of the total number of Members of Parliament". He expressed the view that action in relation to the impeachment had proceeded in accordance with the Constitution.

I agree. The provisions of the Constitution are brief. They may be inadequate. But they are being followed.

Choksy also said that if Parliament decides to impeach the Chief Justice, and the President decides otherwise, a conflict arises. He says that the will of Parliament, consisting of the elected representatives of the people must prevail.

This is clearly wrong. An analogy to the position of our President receiving an address from Parliament, is a Head of State under the Westminster system or the President under the United States Presidential system, receiving a Bill from Parliament or Congress or the legislature. In such a situation there is a legal power for the Head of State, to assent or refuse to assent to the Bill which the legislature has enacted. The power to refuse to assent exists, but is generally not and only exceptionally exercised.

The Head of State and the legislature must combine for enactment of legislation.

Likewise in the current situation, there are two parties, Parliament and President, who must combine for the impeachment of a Chief Justice. There is no conflict situation. The impeachment is valid if Parliament presents an address and the President assents and proclaims an order.

The word "address" in the context of dismissal of a judge was used first in the Act of Settlement of 1701.

Under the present Constitution what is required for removal of a judge is an address by Parliament and an order by the President. Article 107(1) of the Constitution is as follows:

107 (1) The Chief Justice, the President of the court of Appeal and every other Judge of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand.

(2) Every Judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity:

Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of the Members of Parliament and sets out the full particulars of the alleged misbehavior or incapacity. (3) Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including all the procedure for the passing of such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such Judge to appear and to be heard in person or by representative. (4) Every person appointed to be or act as Chief Justice, President of the Court of Appeal or a Judge of the Supreme Court or Court of Appeal shall not enter upon the duties of his office until he takes and subscribes or makes and subscribe s before the President, the oath or the affirmation set out in the Fourth Schedule. (5) The age of retirement of Judges of the Supreme Court shall be sixty-five years and of Judges of the Court of Appeal shall be sixty-three years. The President has an important role in the appointment, the oath and dismissal of a judge. The word "shall" in 107(3) has been interpreted by the Supreme Court as being a mandatory requirement.

I question that. It is a rule of statutory interpretation that "may" could mean "shall" and "shall" could mean "may" depending on the context. Thus the use of the word "shall" is not conclusive. The context is all important. From the context it is my opinion, based on reasoning that follows, that shall means "may" in Article 107. Further, what is said in the early part of this writing about the history of impeachment for misbehaviour, dating from the Act of Settlement, 1701, is relevant. A constitutional lawyer finds it strange that on a fundamental principle of dismissal of a judge, that the Constitution abdicates and gives power to Parliament to add to or fill in the Constitution. For this reason, I do not regard 107 as a mandatory requirement.

Article 107 is ripe for constitutional amendment

There is a more important reason for this conclusion. Wherever the concept of dismissal through address has been adopted, all over the world, it has been regarded as a matter between head of state and the legislature.

The consequence is that the dismissal of a judge is dependent on (i) an address by Parliament and (ii) an order of the President or Head of State. That is the top line and the bottom line.

Each MP makes up his mind on evidence available and exercises his vote. The President makes up his mind and proclaims the order or does not do so.

78A of the Standing Orders enacts:

*78A (2) Where a resolution referred to in paragraph (1) of this Order is placed on the Order Paper of Parliament, the Speaker shall appoint a Select Committee of Parliament consisting of not less than seven members to investigate and report to Parliament on the allegations of misbehaviour or incapacity set out in such resolution. (6) At the conclusion of the investigation made by it, a Select Committee appointed under paragraph (2) of this order shall within one month from the commencement of the sittings of such Select Committee, report its findings together with the minutes of evidence taken before it to Parliament and may make a special report of any matters which it may think fit to bring to the notice of the Parliament; The Select Committee "investigates", and "reports". The words "investigates" and reports are important. The word "decides" is not used. An investigation is not an activity which is the basis for judicial review, unless defamatory comments are made. Section 107 refers to the word "investigation"

Judicial review, judicial power and natural justice

There is a clear constitutional principle, which is explained in this writing and earlier published books and other writings. The conclusion is that the internal affairs of Parliament cannot be questioned in a court of law. Where there is legislation the Courts cannot (HAVE NO POWER) to go beyond the Speaker's certificate. The internal affairs of Parliament are not justiciable. This is so even if there is clear error in the Certificate of the Speaker. Only Parliament through the Speaker can make a correction.

The assent of the Head of State to what Parliament has decided on the basis of the Speaker's certificate is not justiciable. "Justiciable" means that the matter cannot be raised or taken up in a court of law.

Principles of judicial review and natural justice are irrelevant.

Where legislation has been enacted, the words of the Act may be examined and reviewed by the Courts, PROVIDED THERE ARE ARTICLES IN THE CONSTITUTION FOR REVEIW. But the procedure of legislation may not be questioned.

This is a principle of British constitutional law. The United States have adopted the same principle and use the phrase "justiciable" and "non justiciable".

Section 78A of the Standing Orders has complicated the situation.

The first factor to note is that section 78A is a standing order and not a law. Has it added on to clause 107 of the Constitution? Has it qualified clause 107?

My inclination is that 78A has added on to clause 107. I do not discuss this issue further as it is not relevant in the present context. It could have been raised before or when the SPC was appointed.

The original Constitution has made no provision for the proving of an allegation against the Chief Justice. When an actual situation occurred, the effort of the Jayewardene government to deal with WHAT IT THOUGHT was a failure on its own part in drafting the Constitution, was a hurriedly drafted standing order 78A. In terms of practice all over the world in relation to address and impeachment of superior court judges the SPC was not necessary. The difference between inferior court judges and superior court judges is explained earlier in this writing. The idea of a standing order regulating the Constitution is strange for a constitutional lawyer. Likewise it is also strange for an Act of Parliament to regulate the Constitution.

The procedure as explained above is for Parliament to examine the facts in the Special Committee Report as advice for each MP on how to vote. Each MP makes up his own mind. No MP is bound by the Report the SPC. The word "investigates" and "investigation" supports this conclusion.

If a body with judicial power made a determination it would undermine the power of Parliament.

Judicial intervention

The question I have for those who argue that there is a right of judicial review: is what are the Articles of the Constitution which provide authority for court to intervene in the constitutional provisions relating to address and President's order under article 107? The practice in other countries referred to above is relevant.

Where judicial review exists in a constitution there are specific articles in the constitution which provide the extent and limits of judicial review. The example in the present constitution for judicial review are the freedoms and rights provisions. But review is confined to specific areas. There is also a time frame within which a bill must be challenged. There is also a time frame within which the judicial decision must be made, which is totally inadequate and which courts sometimes do not observe. But Courts respect the time frame within which a proposed law may be challenged.

I ask the question from those who make the assertion that the courts have the power of judicial review, what is the Article which provides court authority to intervene in relation to a procedure which involves the Parliament and the President. There is no Article which supports judicial review in relation to the address and the President's order. During "litigation" in relation to impeachment Articles 125 and 126 have been referred to. These Articles confer power which provide for judicial review on the basis of Articles of the Constitution which SPECIFICALLY provide authority, such as the rights provisions. The word "litigation" is put in inverted commas, because there is no authority to courts to permit litigation. It is not right for a lawyer or anyone to assert that "judicial review" exists in a vacuum as it were. They must cite specific provisions of the Constitution which support the right of the court to interpret the Constitution on the specific matter. The answer must be based on what the Constitution says or permits.

Articles 125 and 126 enact principles relating to interpretation of the Constitution and judicial review.

Article 125-26 must be interpreted in the light of powers given by the Constitution or in some circumstances Acts enacted by Parliament. It is totally wrong to cite article 125-26 to justify intervention in the internal affairs of Parliament, where there is no specified power to intervene and it is contrary to history and practice. The constitution of no country confers a power of judicial review in the abstract or in every conceivable situation. The Constitution states the circumstances in which judicial review is permissible. An example is in relation to freedoms and rights provisions. But even where there is a power to court to review, there are limitations. Article 15 provides limitation on review in relation to rights. This is elementary. But a recent emission from a court in relation to impeachment made a pronouncement which contravened this elementary principle.

The impeachment issue is between the President and Parliament. The constitution gives the court no role. Sarath Silva, a former Chief Justice made this point on Articles 125-26 in the DAILY NEWS January 8 2013.page 4. Sarath Silva is a critic of the present government and this adds credibility to what he says. His intellect is widely respected.

Address by Parliament to President

The above analysis of the constitutional and legal principles are in conflict with some of what has come out (emissions) from Court. The words are carefully chosen. The Courts must not move into areas where they have no power what so ever. They should decline jurisdiction.

The dismissal of a superior court judge, is a matter for Parliament and President. The procedures followed by Parliament so far are constitutional.

The cause of a chaotic situation

The Daily Mirror of December 22, 12 on Page 1 says: The Court of Appeal while observing that the executive and legislature cannot take away the court's constitutional power of 'judicial review,' yesterday cautioned the 'relevant authorities' from acting in derogation of the rights of the petitioner Chief Justice Shirani Bandaranayake disregarding the court proceedings as it may lead to a 'chaotic situation.'

Did the court say that if rights of petitioner were disregarded it would lead to a chaotic situation? Is that what the court said? Chaos and violence is a choice. Where there is chaos or violence, the protesters are the cause, through disobedience to law or over zealousness in believing in their point of view and disregarding other views and legal authority of government. They are responsible for a chaotic situation.

A court of law must encourage citizens to peacefully exercise the fundamental rights of free expression and free assembly.

The President and Parliament

The President may seek advice from any source. He may take advice from any source. He may seek the advice of experts and make the right decision according to his conscience. The President taking advice is an action which is not specifically stated in the Constitution. It is not constitutional. BUT IT IS NOT ILLEGAL OR UNCONSTITUTIONAL, provided he receives nothing more than advice.

The President (like any Head of State under the Westminster or Federal systems) may seek advice from any source. Generally the advice is sought in private conversations and writings. But there is no restriction to private communications. The President may seek advice from any source, within the established British constitutional convention that the head of state may seek advice from any source, but is not bound by such advice.

To be continued