| by Udaya
Gammanpila
Views expressed
in this article are author own
( December 26,
2012, Colombo, Sri Lanka Guardian) A comparative study of impeachments of
previous judges of the Superior Courts was done in this column last week to
determine how decently the present Chief Justice (CJ), had been treated during
the impeachment process. It also
discussed the repercussions of the CJ’s decision to unilaterally withdraw from
the impeachment inquiry. The focus of
this column this week is the much debated impeachment procedure.
The President of
the Bar Association of Sri Lanka (BASL) and opposition political parties have
alleged the CJ has been denied a fair trial.
However, Parliament has strictly adhered to the provisions in the
Constitution and Standing Orders, from drafting the impeachment resolution to
handing over the report of the Parliamentary Select Committee (PSC) to the
Speaker. According to the United
National Party (UNP), these Standing Orders are in violation of the
Constitution. The President of the Bar
Association, who is a UNP parliamentarian, is of the same view. However, they have conveniently forgotten the
standing orders were drafted and adopted by the UNP. The present government has merely used the
existing legal provisions to inquire into the alleged misconduct of the CJ.
Former CJ
Neville Samarakoon, and Justices D. Wimalaratne and Colin-Thome were impeached
by the UNP under the very same legal provisions. Further, the UNP and Janatha Vimukthi
Peramuna (JVP) made a joint effort to impeach CJ Sarath Silva, using the same
legal provisions. Neither the UNP nor
the BASL pointed out the loopholes in the present Standing Orders on those
occasions. At least, they should have
attempted to amend and rectify the loopholes even after the impeachments. Nobody was interested in providing a fair
trial for the judges until the submission of the impeachment in issue. It is
true there are weaknesses in the procedure for impeaching judges of Superior
Courts. Similarly, there are weaknesses
in the procedure for impeaching the President as well. There are weaknesses in the Constitution, the
supreme law of the country. The
Executive Presidency and the Proportional Representation system in the
Constitution have been under criticism since its inception. Improvement to the law is a never ending
continuous process.
The Civil
Procedure Code has been amended nearly 100 times. Our Constitution has been amended 18 times
and several amendments are also in the pipeline. The USA has amended its Constitution 27 times
and India has done so 97 times. No
nation has so far produced an ideal piece of law and laws are always subject to
amendments. Hence, there is nothing
wrong in the proposal to amend the impeachment procedure.
Cannot be
suspended
The application
of law, however, cannot be suspended just because there are weaknesses. Can we suspend punishments just because there
are weaknesses in the Criminal Procedure Code and the Penal Code? The accused should be tried with the existing
Criminal Procedure Code and the guilty parties should be punished under the
existing Penal Code, until improved versions of the law are enacted. This principle is applicable to the
impeachment procedure as well.
Parliament has to use the existing laws to impeach the CJ, irrespective
of its weaknesses.
The PSC
previously decided not to summon witnesses and reversed its decision after the
CJ’s withdrawal. This decision has also
attracted the Opposition’s criticism.
This criticism reflects the lack of understanding of the legal
procedures. The Court of Appeal and the
Supreme Court usually do not summon witnesses.
They settle cases through affidavits and counter-affidavits. That is why writ and Fundamental Rights
applications are settled faster than cases in the lower courts.
The impeachment
process is expected to finalize proceedings in a shorter period, in terms of
Standing Orders, since unresolved allegations against a sitting judge would
disrepute the judiciary. Hence, the PSC
decided to settle the investigation with affidavits following the procedure
adopted in the Superior Courts. When
witnesses submitted affidavits, the CJ had the opportunity to counter facts
contained therein with counter-affidavits.
However, the CJ decided to withdraw from the proceedings without
submitting the counter-affidavits.
Hence, the PSC was forced to reverse its decision and call witnesses for
cross-examination in order to verify the contents of the Affidavits.
Article 107
The PSC’s
decision to ignore the Supreme Court’s request to suspend the proceedings was
also heavily criticized in the media. In
terms of Article 107, Parliament can enact the impeachment procedure either as
an Act or as part of Standing Orders.
Parliament decided to enact the procedure as Standing Orders with a
valid reason. When an Act is in the form
of a Bill, its constitutionality can be challenged before the Supreme
Court. Hence, judges get an opportunity
to modify their own disciplinary procedure.
It is similar to a scenario where criminals are given an opportunity to
modify the Criminal Procedure Code.
In the light of
the above analysis, it is obvious the impeachment process has been included in
the Standing Orders in order to avoid judicial interferences. As guaranteed in the Constitution and
reaffirmed by Speakers Anura Bandaranaike in 2001 and Chamal Rajapakse in 2012,
the Judiciary has no capacity to interfere with the parliamentary legislative process. Standing Orders are also a part of
parliamentary legislative process. If they had the opportunity to do so,
Parliament would never have been able to investigate any allegation against any
judge. Hence, the decision of the PSC to
ignore the request of the Supreme Court is legal and logical.
The present
Standing Orders in respect of impeachment procedure were passed in 1984. The BASL found these Standing Orders to be in
violation of the fundamental rights only in 2012. Although they took 28 years for this
discovery, if there is such an anomaly, it should be corrected. However, the Judiciary has no authority to
correct parliamentary Standing Orders and it is within the powers of the
Parliament. Hence, the BASL should have
discussed the issue with the Speaker instead of instituting legal action. Alternatively, they should have tabled a
suitable amendment to the Standing Orders through a parliamentarian. However, their legal action has now caused a
conflict between the Judiciary and Parliament, which has far-reaching
consequences.
In an
unprecedented move, the CJ has challenged the PSC decision before the Court of
Appeal, and in turn the Court of Appeal has issued notices to the Speaker and
the members of the PSC to appear before the Court. As explained above, Speakers have refused to
accept orders or requests of the Supreme Court in the past. In fact, Speaker Anura Bandaranaike has
explained in detail in his ruling in 2001 why he rejected the Stay Order issued
by the Supreme Court. He quoted local
and foreign judgments and expert opinions on parliamentary traditions, powers
and privileges. The rumour in the town
was that H. L. De Silva PC, one of the best legal luminaries produced by Sri
Lanka, drafted the ruling on behalf of the Speaker.
In the light of
above, both the CJ and the Court of Appeal were fully aware of the fate of the
notices issued by them. Since the
Speaker has rejected the orders and requests of the Supreme Court, he will
definitely reject the orders of the lower courts such as the Court of Appeal. However, the Court of Appeal decided to issue
a Stay Order and Notices despite this reality.
The Judiciary has devalued itself before the eyes of the public by
issuing these Notices. If the Speaker
ignores the Notices and the Stay Order, the public will gain confidence to do
the same. Hence, the Judiciary should
not lose self-respect by making itself available for political games.
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