Impeachment proceedings:
Sole responsibility entrusted to Legislature
Speech delivered by External Affairs
Minister Professor G.L. Peiris, in Parliament on Thursday, January 10,
2013 :
Mr. Speaker, I think it is very important for us to be clear in our
minds about some basic principles. Who has the responsibility in respect
of impeachment proceedings of judges of the superior courts?
Is it the Legislature or the Judiciary? With regard to this matter,
Sir, there is a uniform and consistent practice all over the world. In
the United States, it is the Senate that is responsible for arriving at
a determination in respect of impeachment proceedings; in the United
Kingdom, it is the House of Lords and in the Philippines, it is the
Senate. The consistent practice is that responsibility in this regard is
entrusted by the constitutional structure to the legislative organ of
government.
Sir, for this, there is very compelling reason. Why is it that this
responsibility is given to the Legislature and not to the Judiciary?
There is a very cogent reason. The reason has been spelt out by courts
of the highest authority. For example, the Supreme Court of the United
States, where the previous Chief Justice, William Rehnquist, whose
tenure straddled several American administrations, gave this as a
rationale. He said, “To exercise any form of judicial review over the
Senate proceedings is just as bad as handling the matter directly”.
There is a question of bias; There is a question of public perception
of bias. If one judge has the power to quash directions against another
judge, if one judge is intervening to protect the interests of his or
her judicial brethren, there is a violation of one of the basic tenets
of natural justice. One of the basic requirements of natural justice is
total impartiality and detachment, and there must be a clear public
recognition that that is the case.
In the famous case of Pinochet, which all of us have heard about, the
English Court of Appeal gave the same reason: if the courts get involved
in this, how can they be seen as not being biased? That is the very
conceptual foundation of the principle that, in respect of impeachment
proceedings, the responsibility is that of Parliament and not the
courts.
Sir, quite recently, this principle has been applied in the
Philippines, where, towards the end of 2011, impeachment proceedings
were brought against the Chief Justice of the Philippines, Justice
Renato Corona.
In that case, the Chief Justice of the Philippines did exactly what
the Chief Justice of Sri Lanka did. The Chief Justice of the Philippines
went to court and asked for a Writ of Certiorari to quash the
proceedings.
That is what Chief Justice Shirani Bandaranayake did in this country.
What was the outcome? The courts of the Philippines categorically and
very emphatically said, “This is not a matter for us to get involved in.
We will not exercise any form of jurisdiction in respect of this matter
because this belongs to the domain of the Legislature”. They declined
jurisdiction. Unfortunately, the opposite was done by the courts of Sri
Lanka.
Violating all the established principles in this regard, the
principles which govern the basic relationship between Parliament and
the courts, the Sri Lankan courts assumed responsibility for this matter
and went so far, for the first time – this is unique in the annals of
legal history 22? as to issue a Writ of Certiorari to quash proceedings
of this august Assembly.
Supreme Court
Chief Justice William Rehnquist of the Untied States spelt out the
dangers inherent in this course of action. He said, I paraphrase, “Do
not do this. We will not do it because it is a course of action fraught
with danger”. That has proved almost to be a prophecy, Sir. If we
examine the Judgement of the Supreme Court, we can seen how flawed it is
and how serious is the erosion of public confidence in the integrity and
the objectivity of the Judiciary at its highest levels.
I would like to draw your attention, Sir, to several paragraphs in
the Judgement. The Supreme Court itself quotes Article 107(3) of the
Constitution. This is the sentence that the Supreme Court quotes:
‘Parliament shall by law or by Standing Orders provide for all
matters relating to the presentation of such an address…..”
One does not need any knowledge of the law; a simple understanding of
the English sentence is all that is required. It states, “Parliament
shall by law or by Standing Orders.” There is a clear alternative – this
or that. Parliament can, at its discretion, decide which of these
vehicles or instruments it proposes to use for the purpose of investing
with authority this Select Committee appointed under Article 107(3).
Mr. Speaker, in 1984, 29 years ago, the Parliament of Sri Lanka – not
this Government – in its wisdom, brought its mind to bear upon this
matter and decided that they would choose not legislation but Standing
Orders. Sir, amazingly, truly amazingly, the Supreme Court then goes on
to say this. At the beginning of the very next paragraph, the Supreme
Court states in its Judgement, I quote:
“There is a presumption that Parliament will not use words in vain or
unnecessarily”.
In other words, every word has to be given a meaning; there is no
word which is superfluous or redundant. Then, I ask the simple question,
what is the meaning that you are going to give to the words “or by
Standing Orders”? It must have a meaning because the Supreme Court
itself says that in no statute, least of all, the Constitution of the
Republic, would you expect a phrase or a word to be used unnecessarily.
This is basic. The Court then comes to an astonishing conclusion. It
says that Parliament must act, in this matter, only by law and by law
alone. In the Judgement, the phrase “only by law and by law alone” is
underlined.
Democratic process
How do you reconcile that with the plain meaning of the words used in
Article 107(3)?
I have read a series of statements by the Hon. Lakshman Kiriella, who
rightly insists that the function of interpreting the Constitution of
Sri Lanka belongs solely and exclusively to the Supreme Court. That is
the plain effect of Article 125, and my learned Friend is absolutely
correct in asserting that. However, there is a very clear difference
between interpretation and legislation. Interpretation requires the
court to construe the language that is used in a statute and to
attribute to that language, the plain meaning of the words.
Interpretation does not go so far as to allow the court to delete, to
expunge from statute law any words that are used in it nor is the court
entitled, on the basis of interpretation, to add to the language that is
used in a statute.
Now, Mr. Speaker, this has been clearly recognized by the most
distinguished judges of our country. I quote the Supreme Court itself in
quite a recent judgement, in 2006, in the case of the Attorney-General
vs. Thilanga Sumathipala, where it is stated:
“A Judge cannot, under the thing guise of interpretation, usurp the
function of the Legislature to achieve a result that the Judge thinks is
desirable in the interest of justice. Therefore, the role of the Judge
is to give effect to the expressed intention of Parliament, as it is the
bounden duty of any court and the function of every Judge to do justice
within the stipulated parameters. This has been the unchallenged view
expressed by the Supreme Court of Sri Lanka for almost a hundred years”.
Executive and the Judiciary
So, when the Constitution states “by law or by Standing Orders”, the
court has to recognize that there are two options; the court cannot
exclude one option. Of course, no law is written for all times. As
social priorities change, as we discover in the light of empirical
experience that laws need modification and improvement, the Legislature
must undertake that task. It is not for the court to rewrite the law. My
own distinguished teacher, Dr. A.R.B. Amerasinghe, who subsequently
became a Judge of the Supreme Court, wrote a book called “Judicial
Conduct, Ethics and Responsibilities”. Justice Amerasinghe says this in
his book, I quote this one sentence:
“If legislation needs amendment because it results in injustice, the
democratic process must be used to bring about the change”.
It is Parliament, consisting of the elected Representatives of the
people, that must undertake the law-making function. It would be
constitutional heresy to suggest or to imply that the court, however
exalted it may be, can undertake the law-making function.
Laws can be made here and here only. Nobody can usurp that function.
This is very clear from the entire conceptual framework of the
Constitution of Sri Lanka. Article 4 recognizes the doctrine relating to
the separation of powers.
Minister Prof. G.L. Peiris |
There are powers and responsibilities that are given to the
Legislature, the Executive and the Judiciary. In this case, there is no
doubt at all that the court has usurped for itself, without any
semblance of justification, powers and responsibilities which belong to
this House and to this House alone. It would be grossly irresponsible on
the part of Parliament to acquiesce in that finding. That would be a
dereliction of the public duty of Parliament. Mr. Speaker, this
judgement is replete with error, and those errors are obvious on the
face of the judgement.
I would like you, Sir, to consider these sentences at page 23. The
Supreme Court, referring to the Select Committee presided over by my
Friend, the Hon. Anura Priyadharshana Yapa, says this. I quote form the
Judgement:
“In the case of a finding made by a Select Committee Parliament has
to take cognizance of such finding that the allegations against the
Judge have been proved and make an address of Parliament to be presented
to the President for the removal of the Judge”.
The court says, “Parliament has to take cognizance of”. That is
completely wrong. The Select Committee, like any other Committee, will
submit its report to Parliament. Standing Order 78A uses the phrase,
“investigate and report”.
The Select Committee will investigate and report its findings to
Parliament. It is for Parliament to debate those findings and to decide
whether to accept them or to reject them. It is completely and utterly
wrong to say that “Parliament has to take cognizance of” such findings.
That is not the case at all. That is a fundamental error which vitiates
the reasoning in this judgement.
That is not all. The judgement goes on to say, I quote:
“….. the final decision of the Select Committee is what that
eventually takes effect”.
Again, that is fundamentally and basically wrong. There is no final
decision of the Select Committee. The Select Committee does not make any
decision at all. One the contrary, it merely arrives at a finding at the
conclusion of the investigation it conducts. There is no decision at
all, there is only a finding.
Court of Appeal
Then, truly incredibly – I am very sorry to say this because these
are my own students – (interruption) No. I think it is a very dangerous
doctrine to attribute to the teacher the sins of the student. Sir, there
is this sentence here in the judgement. I quote:
“The finding of the Select Committee is not subject to confirmation
or approval by some other authority”.
Is that correct, Sir? Is it not subject to confirmation or approval
by some other authority?
The true position is that the finding of the Select Committee is
subject to confirmation or approval not by one authority, but indeed by
two authorities. One authority is Parliament itself. The second
authority is the President because Parliament at the conclusion of this
Debate tomorrow, when the Vote is taken, will make an address to His
Excellency the President, and the final decision is to be made by none
other than the President of the Republic. The court is wrong. It is
misdirecting itself fundamentally when it says that there is no scope
for confirmation or approval by any other authority. Then, the court
says, again completely wrongly, I quote:
“…..the address of Parliament to be presented to the President is an
inevitable consequence of a finding that the charges have been proved”.
It is nothing of the sort, Mr. Speaker. It is not an inevitable
consequence at all because Parliament can reject it, entirely or in
part. There is nothing inevitable about it.
Therefore, what I am saying is that this reasoning is absolutely
flawed, and it does not reflect any credit on the highest court in this
land. All these problems arise for the basic reason that was fully
appreciated in the Renato Corona case in the Philippines.
The Supreme Court of the Philippines, to protect their brother judge
– I mean, these are judicial brethren, we are all human beings – had
every opportunity of doing what the Supreme Court and the Court of
Appeal did in this country. But they had the good sense and the
integrity not to do that. They said the entire constitutional system
works on the basis of a proper and coherent allocation of powers and
responsibilities. It is a question of delineating the limits of public
power. That is the pith and substance of the reasoning contained in the
judgement of the Supreme Court of the Philippines. They, therefore, did
not wish to get embroiled in the matter. The Supreme Court of Sri Lanka,
on the other hand, took this upon themselves and came up with a
judgement that, I say with great respect, is not worth the paper that it
is written on.
Sri Lankan Constitution
Now, Sir, see what has happened next. The Supreme Court handed down
this judgement. Then, the next step is the Court of Appeal and the Court
of Appeal concludes its judgement with these words. It is the judgement
of Justice Sriskandarajah and His Lordship says at the conclusion of his
judgement, I quote:
“ In view of the above determination ……..” - that is the
determination of the Supreme Court.
“In view of the above determination and the finding and/or the
decision or the report of the 2nd to the 8th respondents marked as
P17…..”.
-that is my Colleagues who were on the Select Committee.
“….has no legal validity and as such this court has no alternative,
but to issue a writ of certiorari to quash P17 (the Report of the Select
Committee), thus giving effect to the determination of the Supreme Court
referred to above.”
It does not appear from this language that the Court of Appeal is
doing this with any relish at all, they do not seem to be liking what
they are doing. That is why they are saying, “this court has no
alternative”.
That is, the Court of Appeal has its hands tied by the Supreme Court.
I have indicated to you, Sir, how demonstrably flawed the reasoning of
the Supreme Court happens to be. So, the Supreme Court takes away from
the Constitution of this land, words which are part and parcel of the
Constitution. In so doing, the Supreme Court is making an unpardonable
inroad into, an encroachment upon, the powers which are inherent in this
sovereign Legislature; powers that are conferred upon it specifically by
the provisions of the Sri Lankan Constitution. The Supreme Court arrives
at a finding which is incurably flawed. It is a very bad finding. Then,
the Court of Appeal says, “Because the Supreme Court has sent this
Determination to us, we have no choice but to follow the ruling of the
Supreme Court”. The source of it all is entirely tainted.
Let us examine for a moment the repercussions of this anomaly,
because those repercussions are going to reverberate through our legal
system for many more years when all of us are gone. Here, we have a
situation in which the court has destroyed the fundamental basis of the
law governing the relationship between the judicial and the legislative
branches of government.
It has departed without any semblance of logic or sound policy from
well-established principles of law, and it has set this particular
branch of public law adrift on uncharted waters with horrendous
consequences for institutions which we hold to be sacrosanct in this
country.
Mr. Speaker, I would like to indicate what the position has been up
to now. No court has hitherto dared to touch this Parliament, quite
rightly. For 350 years, the courts of the United Kingdom have evolved a
body of law which has recognized that Parliament is immune from the
exercise of the jurisdiction of Her Majesty’s Courts in respect of its
internal procedures.
That is the distilled wisdom which your distinguished predecessor,
the late Speaker, Hon. Anura Bandaranaike, expounded in his celebrated
Ruling which was delivered from the Chair which you now occupy, Sir, in
June 2001. This is what the Speaker, Hon. Anura Bandaranaike said,
encapsulating the substance of the principles which have been developed
in an uninterrupted manner for several centuries. This is a privilege
which is now being assailed for the first time, and this has
consequences for posterity, not only for the 225 Members who are in this
House today.
The Hon. Anura Bandaranaike, said, “This is a privilege recognized in
the United Kingdom from ancient times and forms an integral part of our
system of Parliamentary democracy which has drawn heavily from their
practice in the development of our own traditions.” He went on to say
that “These are principles faithfully approved and followed by our
Parliaments up to the present day”.
Rights and privileges
This is part of the cherished legacy of this nation, which the late
Speaker upheld, as you did yourself, Sir, in the Ruling which you gave
just a few weeks ago.
Mr. Speaker, you made very clear the position that no Member of this
House, least of all, you, Sir, the custodian of the rights and
privileges of this House, can be directed by any court in this country
to appear before that court in relation to any matter that has to do
with your official functions in Parliament. This is the proud tradition
which has been maintained, and there is total continuity with regard to
the maintenance of that tradition.
One of Sri Lanka’s most respect Judges, H.N.G. Fernando who
subsequently became Chief Justice, had an emphatic view to express on
this matter in the case of Attorney-General vs. Samarakkody. This is the
opinion of one of this country’s most respected judges about the
importance of the principles which are today being eroded for the first
time in the legal history of this Island. H.N.G Fernando, J. said, I
quote:
“The cumulative effect of the jurisprudence, constitutional
provisions read in conjunction with the Parliament (Powers and
Privileges) Act of 1953 as amended, in my opinion places the question of
the exercise of the Speaker’s powers and the powers of the Members of
this House, exercised both jointly and severally, outside the control of
any court.”
That is one of the coveted privileges which Parliaments, both in this
country and in all other nations of the Commonwealth and indeed even
outside the Commonwealth have safeguarded, at the cost of their lives,
in some instances. H.N.G. Fernando, J. says that these are powers which
Parliament must always exercise. There can be no challenge, and no court
has the power to trespass upon the territory which belongs only and
exclusively to the legislative organ of Government. For the first time,
we have a Writ of Certiorari actually quashing a Parliamentary
proceeding.
This is something wholly unimaginable to anybody even superficially
familiar with the cultural ethos which pervades the public law of this
country, which is based on the public law of England. It is really to
make the basic principles of law stand on their head. It is a
fundamental disservice to all that we hold to be important with regard
to the legal legacy to which we are proud heirs. It flies in the face of
an unbroken line of direct rulings by the Supreme Court.
In matters that were connected with the impeachment that was brought
against the former Chief Justice, the Hon. Sarath N. Silva – this was a
case filed by Victor Ivan, who was at that time the Editor of Ravaya,
Victory Ivan vs. Sarath N. Silva, important observations were made.
Justice Wadugodapitiya was the Chairman of a Bench that consisted of
five judges.
What is interesting, Sir, is that one of the members of that Bench
was the present Chief Justice, Dr. Shirani Bandaranayake. The others
were Justice Priyantha Perera, Justice Gunasekara and Justice Ismail. In
this Judgement – it was a unanimous decision of that Bench of five
judges – they specifically recognized that Article 107 (3) of the
Constitution provides a lawful means of removing from office the Chief
Justice of this country. In other words, the present Chief Justice
accepted that position sitting on that Bench and associating herself
with the judgement that was delivered by Justice Wadugodapitiya. There
are many other cases of acknowledged authority, I do not wish to labour
the point.
Standing Order
The Hon. M.H. Mohamed was one of your distinguished predecessors,
Sir. In the case of Gomes vs. M.H. Mohamed, which had to do with the
impeachment proceedings against the late President Ranasinghe Premadasa,
the Supreme Court said that they would not consider interfering with
Parliament or inquiring into any procedure within Parliament. That is
not for the courts; the courts will not embark upon such an exercise
because it is inappropriate and because it would constitute an affront
to the dignity of Parliament. In Gomes vs. M.H. Mohamed, the court
declined to do something even less, far less, than what the courts have
purported to do in relation to this House on the present occasion. I
think I have said enough to establish the position that what has
happened is not only contrary to all principle and precedent, but it is
something that would affect the rights of future generations of
legislators.
I would also like to draw attention to this. The very proposition
that Standing Order No. 78A is bad, because the authority of the Select
Committee is derived from Standing Orders as opposed to a law, is a
proposition which does not bear scrutiny because there are previous
instances in which this Standing Order was used in the same way by
previous Select Committees without one word of objection. I refer to the
proceedings in respect of the late Chief Justice, Neville Samarakoon.
In that case, there were two Select Committees. The function of the
first Select Committee was very limited. It was simply to ascertain
whether Chief Justice Neville Samarakoon had made a speech at
Sinnathurai Commercial Tutory. That was a question of fact – had he made
that speech or not? And the conclusion was arrived at that Chief Justice
Neville Samarakoon, in fact, did make that speech.
A second Select Committee was appointed to go into the question
whether the contents of that speech amounted to proven misbehaviour in
the relevant context because Chief Justice Neville Samarakoon
criticized, in somewhat strong terms, some of the aspects of the policy
of the Government of the late President J.R. Jayewardene. The second
Select Committee acted on the basis of Standing Order 78A. So, if this
Select Committee is bad, the previous Select Committee was also bad. If
Standing Order 78A is bad on this occasion, it was equally bad on the
previous occasion. But, it is a Standing Order which has stood without
challenge for 29 years. If we get into this situation of allowing the
Supreme Court, under the guise of interpretation, to take away selected
portions of the statute law of this country, then we are up against a
very dangerous situation in which the very phrase “statutory
interpretation” becomes a total misnomer. That is not interpretation at
all. That is lawmaking. Lawmaking can be done only by one organ of the
State, and that is the Legislature.
That is the position, Sir, and I would like briefly to indicate what
the future course of action is. What has happened so far is that 117
Members of this House presented to you, as Speaker, a Motion calling for
the appointment of a Select Committee. The Constitution requires you,
upon receiving such a Motion signed by not less than one-third of the
Members of the House, to proceed to the appointment of such Select
Committee, which you, Sir, as Speaker, duly did.
Public law
The Committee then comes into existence. The Committee derives its
vires from Standing Order 78A, which itself is a creature of statute.
The Select Committee carries on with its work – it is not a judicial
act, it is simply an investigative act – and there is in public law, a
fundamental distinction between the function of adjudication and the
function of investigation. They are two vastly different things. The
Select Committee carries out its function of investigation; it arrives
at a finding and the finding is conveyed to Parliament. The only
restriction with regard to time frames that is incorporated into
Standing Order 78A, is the compulsory requirement that there must be an
interval of one month between the submission of the Report to Parliament
and the commencement of the Debate.
The Report was submitted to Parliament on December 8 and any time
after the 8th of January, Parliament is free to debate it. Parliament is
now embarking on that Debate; the Vote will be taken tomorrow evening
and the next step is, if Parliament agrees with the findings contained
in the Report, then, in terms of Article 107, an address has to be
presented to the President. And, the President as the appointing
authority also has the power to dismiss the Chief Justice from office.
Indeed, that is expressly recognized by the Supreme Court in the last
page of its judgement.
This is, consequently, a lawful proceeding; it is a proper proceeding
and it is a proceeding which has been unjustifiably and indefensibly
assailed by courts acting entirely outside their jurisdiction.
It is for this reason that this House is duty-bound not to take
cognizance of such judgements, which are totally incompatible with the
basic powers of this House. These are powers which Parliament enjoys not
for their own sake but as an instrument of service to the people of Sri
Lanka.
The whole basis of the law relating to Privilege is that these rights
are necessary for the elected representatives of the people to discharge
their functions with acceptance. Without these powers and rights, the
representatives of the people will find themselves without the authority
that they need properly to discharge their functions.
This is the practical importance of the concept of Privilege.
Therefore, Sir, it is my submission that Parliament must jealously guard
these rights and not allow any functionary outside Parliament – be it
the courts or anyone else – to take away these rights, which we hold to
be vitally important.
Powers of judiciary
This must be recognized and understood very clearly by people who say
that we have defied the courts. We are not defying the courts. It is the
courts who have thrown to the winds all restraints and limitations which
govern the exercise of their authority and that is, by its very nature,
an arbitrary and capricious proceeding. Those who talk of the Rule of
Law must recognize that denial of impunity is an essential
characteristic of the Rule of Law.
All authorities exercising public power must be astute to confine
themselves to the boundaries within which power is conferred upon them.
This is an instance where it can be shown with crystal clarity that the
courts have overstepped their jurisdiction in defiance of the plain
language that is used in the Constitution of this country. This is why
this situation cannot be construed as one in which Parliament is seeking
to ride roughshod over the judiciary and refusing to recognize the
lawful powers of the judiciary.
On the contrary, it is the Supreme Court, without any consideration
of the consequences and with scant regard for the body of law which has
established itself over such a long period of time, with scant regard to
all of this, it is the courts that have assailed the authority of
Parliament.
I ask, Sir, if it is the unanimous opinion of this Assembly, as
indeed it was a few week ago, that no single Member of this House should
appear before the court in response to the notice that was issued and
everybody agreed with that – the government agreed with that; the United
National Party agreed with that; the Janatha Vimukthi Peramuna also
agreed with that – and not one single Member of the Select Committee
appeared before the courts.
That is in recognition of the principles that I have sought to
expound in this intervention. If that is so, Sir, how can anyone without
palpable contradiction say, “We do not go anywhere there because we do
not recognize their right to ask us to come; they have no right to
engage in that exercise at all.
Therefore, we will not go there”. There was unanimity with regard to
that. There was no cleavage of opinion in any form between the
government and the Opposition. If we were able to arrive at unanimity
with regard to that basic principle which goes to the very root of the
authority of this august Assembly, how then, I ask, Sir, is it possible
for those very people now to say, “We did not go there, but now we
recognize that judgement and we want to give effect to it even though it
transcends the lawful powers of the courts and makes a very fundamental
encroachment upon the powers of Parliament which we all individually and
collectively are bound to uphold”.
This is why I say, Sir, with due responsibility, that this is a
matter which goes beyond the specific circumstances of the impeachment
against the Hon.(Dr.) Shirani Bandaranayake. It is far more important
than that. It is a far broader set of principles that are in jeopardy on
this occasion.
Inherent value
Mr. Speaker, this is why it is important to recognize the legality
and the propriety of everything that has been done in this instance. It
is of even greater importance to acknowledge the dangers that are
inherent in allowing this kind of encroachment because if it is allowed
once, then it will happen again and again in the future. Up to now,
there was no precedent, whatsoever, which enabled the courts to do what
they have purported to do on this occasion.
The entire body of precedent, the cursus curiae is entirely against
that. Now, we have a radical departure from that and for the first time
– and this is nothing short of a constitutional heresy – the courts have
exercised their power under the prerogative writs, in this case a Writ
of Certiorari, to quash – to deprive of legal effect – a proceeding
within the precincts of Parliament.
We have to be mindful of what is implied in that departure from
established principles. I would ask you, Sir, to do everything in your
power – I think we all collectively need to discharge that obligation –
to ensure that the public in this country are made aware of what is
involved in this situation.
We must do everything possible to safeguard what is of inherent value
in all that we have inherited from those who have gone before us and we
are equally bound to hand it down in its pristine integrity to those who
will come after us.
I thank you, Sir, for your indulgence. |