Parliament is right in rejecting Supreme Court judgement

H. L. D. Mahindapala

Now that the sound and fury of the brouhaha about the former Chief Justice Shirani Bandaranayake have subsided it is time look back and assess not only the triumph of the Legislature over the Judiciary but also why the legal pundits who backed the doomed case failed, particularly in cooking up legal fictions to make the guilty look innocent.

The first significant outcome to be noted is the inevitability of the clash between the Legislature and the Judiciary. Both were testing each others' nerves for some time. The two major contests -- one with Chief Justice Neville Samarakone and the other with Chief Justice Sarath N. Silva -- petered out earlier without climaxing in a dramatic legal contest. The head-on clash arose when the former Chief Justice, Shirani Bandaranayake, challenged the authority of the Parliamentary Select Committee (PSC) to judge her on 14 allegations accusing her of misbehaviour. Though she fronted up before the PSC she had also mounted a legal challenge arguing that Parliament had no authority to judge her. But it was common knowledge that Article 107 (3) of the Constitution -- the supreme law of the land -- had given Parliament the option of judging the conduct of judges accused of "misbehaviour or incapacity" either "by law or by Standing Orders". The Parliament following the precedents established before, decided to judge her through a PSC.

So there were two processes in motion dealing with her case. When her case came up before the Judiciary the bench grabbed the opportunity to play its role of the interpreter/ judge knowing that it had the power to tilt the case in favour of one or the other. Earlier the Judiciary decided to intervene, somewhat craftily, and requested Parliament not to proceed with the impeachment until it had decided on the constitutionality of Parliament sitting in judgement over judges. This was the first error of judgement. The Judiciary was deliberately intervening in the "powers of Parliament and of its Members" despite Article 4 (c) saying that Parliament is out of bounds for courts. According to the Constitution -- and also according to precedents established in Sri Lanka and abroad -- the Legislature was empowered to sit as an ad hoc quasi-judicial body authorised to investigate and report on charges levelled against judges. In Sri Lanka that power was vested in the Standing Orders by the law stated explicitly in the Constitution -- i.e., Article 107. Parliament's reaction was predictable.

It rejected this intervention saying that the Judiciary had no power to intervene in "the powers of Parliament or its Members" (Article 4 (c). )

Judicial powers

With both parties refusing to budge the inevitable occurred: the two institutions were going at each other like two engines speeding from two opposite ends of the same rail track. The crunch came when the Supreme Court quashed the findings of the PSC as being null and void saying that it does not have the legal power or authority to sit in judgement over judges.

The underlying argument for this move was that only courts, tribunals and other institutions established by law could try judges and not the Legislature which has no judicial powers. In the heat of the contest it was obvious that both institutions were claiming to be superior to the other.

The Judiciary, relying on Article 125, proceeded on the basis that it had the "sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution." There is no doubt that Article 125 gives the Judiciary the ultimate power of interpretation.

But the snag is in the open-ended space available for the Judiciary to interpret the law according to its perceptions/ biases/political and personal agendas -- all of which are characteristics inherent in the Judiciary despite its claim to be objective.

The absolutely horrendous perversions of the judiciary were revealed by senior judges at the last annual session of Magistrates and Judges held on December 22, 2012.

In the context in which the contest was played out between the Legislature and the Judiciary the natural tendency would be for the interpreters (i.e, the judges) to interpret the law in order to strengthen their grip as the superior force that can quash the Legislature, particularly when the tenure of judges and the overall interests of the judiciary as a separate and independent arm of the state -- an issue labelled as "the independence of the judiciary" – were seen to be at stake.

Parliament is supreme

Former Chief Justice Sarath N. Silva

As in the case of individuals, institutions too tend to use all means to strengthen its power bases by legal or psuedo-legal means, by fair or foul means.

For instance, when it comes to the making of constitutions legislators would tend to grab and consolidate the power of legislatures as much as possible. The judiciary would not be any better when it comes to its turn to interpret the constitution. So would the Executive in exercising its powers to push its political agenda. Right now President Obama is facing charges of being 'dictatorial' for signing 20 executive orders without the consent of the Congress. Pushing the boundaries to test how far each can go into the others' territory is a common practice in any sphere of life.

Predictably the Courts quashed the findings of the PSC, appointed under Standing Orders as stated in Article 107 (3) of the Constitution. Put simply, the judgement said that the PSC had no powers or authority to sit in judgement over the judges as the Standing Orders were not lawfully constituted by an Act of Parliament. How valid is this interpretation? Does this interpretation conform to the fundamentals laid down in the Constitution -- the supreme law of the land? Can an interpretation of the Supreme Court deny the supreme law enshrined in the Constitution?

New constitution

The powers of the Supreme Court are limited to test whether the laws passed by the Legislature conforms to the requirements of the Constitution. It has no powers to go beyond that to deny, brush aside or reject the supreme law in the Constitution according to its predilections, preferences, and prejudices to write new laws into the Constitution. That is the function of the Legislature. Just as much as the Legislature and the Executive must conform to the Constitution so must the Judiciary. So did the Judiciary step out of its boundaries to be the supreme law, higher than even the Constitution, when it decided to redraw the Constitution by quashing the right of Parliament to act under Article 107 (3) of the Constitution? When the Constitution states categorically that Parliament has the power and the right to set up an institution (namely, PSC under Standing Orders), which will be on par with courts and tribunals, to investigate and report on the conduct of judges by what superior law and logic did the Supreme Court decide to quash the findings of the Parliament and, consequently, the Constitution, in which these powers are enshrined?

As these issues arise from an interpretation of the Constitution of 1978 it is necessary to deal with the making of a constitution which, in the case of 1978 Constitution claims in the Preamble to be "the supreme law" of the land. In making constitutions it is customary for the Founding Fathers to assemble in an appropriate place of their choice to draw up a constitution to establish a new order, a new social contract, for the security of the people and good governance. It become the ultimate reference point for political morality. The new constitution replaces the old order and/or status quo to initiate a new order based on a new legal foundation. Any order -- new or old -- must have a legal base and the legal foundation for the new order is invariably laid down in the new constitution. This necessitates a new politico-legal framework of principles, procedures and institutions to create, establish and recognise the new order.

It is the constitution that defines and encompasses the new principles, procedures and institutions by creating, establishing and recognising the necessary principles, procedures and institutions for the sustenance of the new order. For this purpose the constitution assumes the status of being the supreme law, overriding all other existing laws, unless otherwise stated. Accordingly, the Constitution of 1948 replaced the colonial constitution creating the new independent order. The second constitution of 1972 replaced the order of the 1948 constitution tinged with touches of colonialism. The new order broke away from the old order linked to the Queen of England by creating a republic. The new order derived its power from the sovereign people and not from the sovereign in UK. The third constitution of 1978 replaced the 1972 Constitution to create the new order which derived its power from the people to strengthen and consolidate the power of the "de Gaullist" Executive with a mixture of constitutional strands drawn from the American, French and Indian models.

Whatever the sources, the influences and the political objectives may be, the primary legal framework, laid down in the Constitution, stands as the supreme, inviolable law. It is the ultimate reference point for the creation, establishment and recognition of institutions and other laws to follow. The supremacy of its law cannot be altered except in the manner prescribed. Until then it remains as the supreme law. As in other instances, the new Constitution of 1978 was drawn to establish a new order and it was meant to be the most powerful legal instrument which could do anything except transform "a man into a woman", as stated by its Founding Father, President J. R. Jayewardene. Rightly or wrongly, the main objective of the 1978 Constitution was to acquire and consolidate as much power as can be legally obtained and place it in the hands of the Executive, with the Legislature aiding and abetting the Executive to be the all-powerful head. If there was any lacuna in the law both the Executive and the Legislature moved jointly to fill the gap with the necessary legislation. The Constitution was amended 16 times during the time of "JRJ". Today it stands with 18 Amendments.

Supreme law of the land

On the first occasion when it was discovered that there was no instrument in Parliament to judge the judges (i.e, the case of Chief Justice Neville Samarakone) the Executive and the Legislature moved on April 4, 1984 to create and establish Standing Order 78 (A) as the instrument of Parliament to implement the supreme law created, established and recognised in Article 107 (3) in the Constitution. There was nothing illegal or irregular about it. The supreme law in the Constitution had stated categorically in Article 107 (3) that the Parliament shall by Standing Orders provide means for the impeachment of judges. The legal force, authority and power for Parliament to create Standing Orders as an ad hoc quasi-judicial body to judge judges of superior courts were enshrined in Article 107 (3). There was no legal requirement for Parliament to acquire additional power by passing an Act to legalise the appointment of an ad hoc quasi-judicial body for the purpose of judging judges because the supreme law in the Constitution had authorised it. So following the law laid down in Article 107 (3) Parliament adopted Standing Order 78 (A) by way of a resolution and not as an Act of Parliament to legalise the appointment of a Parliamentary Select Committee to judge any "misbehaviour" or "incapacity" of judges. Standing Order 78 (A) was adopted as a resolution adding to the existing Standing Orders which are 100 years old.

In principle Standing Order 78 (A) is the logical legal extension of the Constitution which recognises Standing Orders as a part of the supreme law of the land.

That is to say, the Constitution had handed over the powers of providing the necessary procedures, instrumentalities and other means necessary to enforce the supreme law contained in Article 107 (3) to Standing Orders. Consequently, the creation and establishment of Standing Order 78 (A) derived its validity from the supreme law of the land. Coming as it does from the Constitution it can stand on its own two legs without using the crutches of other secondary/ subsidiary/ subordinate laws to gain legal power or authority. There was, therefore, no legal necessity to pass Standing Order 78 (A) through an Act of Parliament because Article 107 (3) of the Constitution has already created, established and recognised Standing Orders as a part of the supreme law that needed no additional Acts of Parliament to make it the law. In short, Standing Order 78 (A) is a part of the body of Standing Orders created, established and recognised by the Constitution. Since 78 (A) is a part of the Constitution -- the supreme law -- what more authority and power does it need from other external , or extra-Constitutional sources to be the law? An Act of Parliament would have been necessary ONLY (emphasis added) if the Constitution did not lay down Standing Orders as a part of the supreme law of the land.

This makes the Sri Lankan Constitution the exception among other parliaments which recognise Standing Orders as only in-house rules for Parliaments to conduct its internal house-keeping. No other Constitution recognises Standing Orders as a part of the law. It was so in Sri Lanka too. Before the new social contract was established in 1978, Standing Orders were merely in- house rules for the conduct of its internal business like in all other Parliaments. But after the 1978 Constitution "created, established and recognized" Standing Orders as an integral part of the supreme law in the new order its status changed from that of being mere in-house rules to the higher level of being an integral part of the supreme law of the land. The Constitution not only created, established and recognised Standing Orders to be included as a part of the supreme law of the Constitution but went further to make it the parallel instrument for judging judges like courts, tribunals and other institutions established by Parliament as stated unequivocally in Article 107 (3).

Sovereign people

So Standing Orders stand among other principles, procedures and institutions created, established and recognised by Constitution as the the supreme law of the land.

And like all other institutions created, established and recognised by the Constitution, Standing Order 78 (A) stands in its own right without needing secondary/ subsidiary/ subordinate laws to gain legal power or authority. Any argument, conclusion or judgment that demand an additional Act of Parliament to confirm the supreme law in the Constitution is otiose. It is like demanding an affidavit on top of the birth certificate -- the equivalent of the supreme law --to confirm that the former Chief Justice Shirani Bandaranayake is a woman.

The supreme law in the Constitution derives its power from the autochthonous source of the sovereign people. Consequently, if the Constitution is accepted as the repository of the "general will" (Rousseau) of the sovereign people then the law in the Constitution must stand on its own, with or without any secondary/subsidiary/subordinate laws coming into play. Otherwise the Preamble which declares the Constitution to be the supreme law has no meaning or force.

But the legal pundits laboured strenuously to demand additional proof in the form of an Act passed by Parliament to re-confirm that which is stated in Article 107 (3) is the law. These pundits were relying on the controversial Article 170 which states: " “law” means any Act of Parliament and any law enacted by any legislature at any time prior to the commencement of the Constitution and includes an Order in Council." This definition refers only to the body of laws "enacted at any time prior to the commencement of the Constitution" and not after the establishment of the 1978 Constitution. It is, therefore, debatable whether this was written to define the meaning of "law" in both constitutions or whether it was included to maintain continuity of the pre-existing body of laws by incorporating it in the new constitution. A closer scrutiny will reveal that the definition relates ONLY to the law that existed "prior to the commencement of the Constitution..." It is clearly a definition introduced to legalise the pre-existing body of laws into the new constitution . Period.

Any attempt to extend the meaning of the "law" beyond this limited definition is pure fiction. For instance, if the pundits accept ""law" as an Act of Parliament and any law enacted by any legislature at any time prior to the commencement of the Constitution" as the meaning of the "law" then what happens to the Acts of Parliament after the commencement of the Constitution? Again, if an Act of Parliament alone constitute the meaning of "the law" what is the status of the law in the Constitution which claims to be the "supreme law"? These issues make it clear that the "law" defined here is intended to prevent the exclusion of the body of laws passed by Parliament before the commencement of the new Constitution in 1978 and nothing more. It is not meant by any stretch of imagination to be a comprehensive definition of "the law" before and after the establishment of the 1978 Constitution. The framers of the new Constitution were faced with the issue of recognising the entire corpus of Acts of Parliament prior to 1978. For pragmatic reasons and sheer necessities those Acts of Parliament written before 1978 must continue to be a part of the new Constitution. So it was to give validity to the pre-existing body of laws that the definition in Article 170 was introduced.

The definition in 170 is stating the obvious when it begins by saying that the " “law” means any Act of Parliament and any law enacted by any legislature ".

Everyone knows that. But is the purpose of the definition to state the obvious or is it point to a time frame contained in the latter half of the sentence which states "time prior to the commencement of the Constitution and includes an Order in Council?" Clearly this definition is not meant to define the law per se but the time frame which contains the pre-existing law that must necessarily become an integral part of the new Constitution.

The new Constitution recognises that the pre-existing body of laws passed by the preceding Parliaments needs to be validated for the new Constitution to maintain continuity. For pragmatic reason the pre-1978 laws cannot be thrown out and it must be defined to make it absolutely clear that the pre-1978 laws will continue to be an integral and essential part of the post-1978 Constitution. The primary objective is to confirm that the force of the Acts of Parliament that prevailed before the commencement of the Constitution will continue to be in force under the new Constitution too.

This is made clearer in the preceding definition in Article 170 which states that the ""existing law" and "existing written law" mean any law and written law, respectively, in force immediately before the commencement of the Constitution which under the Constitution continue in force;". Here it is made crystal clear that these definitions refer to a time frame and not to a definition of law per se. Besides, to accept the extremely narrow definition that the " "law" means any Act of Parliament and any laws enacted by any legislature" is to deny the overarching supremacy of the law declared unequivocally in the Preamble to the Constitution. According to the Preamble it is the Constitution that is "the Supreme Law" and not Acts of Parliament. So if the pundits accept the "interpretations" in Article 170, which refers ONLY (emphasis added)to Acts of Parliament before 1978 what happens to the declaration that the Constitution is "the Supreme Law"? Is the Preamble to be discarded for a mere narrow and questionable definition in Article 170?

The plain fact is that there cannot be two definitions of the "law" in the Constitution. It can't say in the Preamble that the Constitution is the "Supreme Law" and then say in another place that the "law" is confined to Acts passed by Parliament prior to 1978. Article 170 definition of "law" does not include the definition in the Preamble which states unequivocally that the Constitution is the "supreme law". So does this exclusion mean that the "law" is limited only to Acts passed by Parliament and not those in the Constitution? Any definition that excludes the supremacy of the law stated in the Constitution cannot be the law. All Acts of Parliament gains its validity because it is derived from the Constitution -- and this is stated categorically in 170 which defines the pre-1978 law as a part of the new social contract.

Restoring Standing Orders to its due legal place in the Constitution invalidates the theoretical fictions of the legal pundits who deny that Standing Orders is not law. More than that, it has serious consequences to the judgement of the Supreme Court which quashed the findings of the PSC as being invalid because it was not created, established and recognised by an Act of Parliament. The legal tactic of the Supreme Court was to brush aside the critical part in the Constitution which recognised "Standing Orders" on the same level as courts and tribunals. It was by denying the status of Standing Orders that the Courts could maintain the legal fiction that the PSC lacks the same legal force as courts and tribunals. The judgment conveniently underplayed the Constitutional powers given to Standing Orders to act as an alternative to courts or tribunals to judge judges of superior courts only. So when Supreme Court deny the validity of the Standing Orders to judge the judges they also deny the Constitution. They are going beyond their powers to deny what has already being created, established and recognized by the Constitution. Though the Supreme Courts have the power to interpret the Constitution it cannot go as far as denying what is written in black and white in the Constitution. Any interpretation must begin with the Courts acknowledging the supremacy of the Constitution over the Acts of Parliament.

The Courts jumped over to the wrong side of the law when it denied what is written down in the Constitution. It assumed that it could get away by selectively amputating parts of the Constitution that do not fit into their political agenda. Because it has the sole power to interpret the Constitution it assumed the unwarranted role of being superior to the Constitution. It is at this point of protecting and preserving the superiority of the Constitution that Parliament stepped in quash the judgment of the Supreme Court. Of course, the Legislature is permanently engaged in the business of revising, correcting, adjusting the law, including rejecting any arrogant interpretations of the Constitution. And the rejection of the Supreme Court judgment was a step in the right direction.

To begin with the Judiciary had no right to violate Article 4 which clearly told the judges to keep off the "powers of Parliament and its Members". In violating the fundamentals stated in the Constitution the Judiciary went overboard to meddle in the "powers of Parliament and its Members." Parliament and its Members derive their power to legislate from the sovereign will of the people enshrined in the Constitution -- the supreme law. The Supreme Court has no power/right to curtail the powers of Parliament given in the Constitution.

Besides, in the latest contest between the Legislature and the Judiciary it must be conceded that the PSC observed the legal procedure for impeachment meticulously. The Supreme Court had no excuse to quash the findings of the Parliament except through legal fictions. The ultimate legal fiction was when the Supreme Court, in the guise of interpreting the Constitution, denied the powers defined and handed to Parliament by the Constitution. Parliament is not obliged to accept a judgment of any court that denies the supreme law in the Constitution.

And if the Supreme Courts fail in their duty to be the fair judge of what is written in the Constitution then the Parliament has the right to correct it. And that is what the Parliament did in rejecting the direction of the Supreme Court quashing the findings of the PSC.

The victory of the legislature over the judiciary will go down in the legal annals as a landmark event. It defined the parameters of both institutions in the foreseeable future.