The Judicial Interpretation of Article 107(3)

| by Elmore Perera

( January 30, 2013, Colombo, Sri Lanka Guardian) A rational person (whether natural or juristic) is deemed to intend the logical consequences of his/her/its acts. Any other person who refers to such acts without express disapproval is also deemed to endorse such intentions.

The dire consequences of the clearly unjust acts being perpetrated at will, do not permit us to sit back and leisurely enjoy the "free entertainment" provided by the strenuous efforts being made by usually sensible Sri Lankans. Many of them are falling over each other in a maddening scramble to interpret constitutional provisions so as to "justify the unjustifiable".

Article 107(3) reads "Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such judge to appear and to be heard in person or by representative". (The "address" referred to is the address to be presented to the President for removal of a superior court judge on the ground of proved misbehaviour or incapacity).

Notwithstanding the mandatory requirement to do so contained in Article 107(3), Parliament had failed to provide for any of the relevant matters by law or by Standing Orders until after the motion to impeach Chief Justice Samarakoon was received by the Speaker on April 3, 1984. A Parliamentary Select Committee was appointed to inquire into the allegations and report. Standing Order 78A was hurriedly adopted on April 4, 1984 and another PSC was appointed to consider the findings of the first PSC and report. The six government MPs on the Select Committee appointed under S.O. 78A unanimously held that the alleged (and admitted) conduct of the Chief Justice did not amount to proved misbehavior and the PSC process was duly terminated in spite of the 5/6th majority of the government in Parliament. The three Opposition members on the PSC, viz. Anura Bandaranayake, Dinesh Gunawardena and Sarath Muttetuwegama, went one step further and, in a separate report

(i) stated that seeking to inquire into whether or not the Chief Justice was guilty of "proved misbehaviour" was violating the provisions of Article 4(c) of the constitution,

(ii) urged the House to amend S.O. 78A to provide for the process of inquiry preceding the resolution to remove a judge be conducted by judges chosen by the Speaker from a panel appointed for this purpose, and

(iii) urged the President to refer this matter to the Supreme Court for an authoritative opinion thereon, under Article 129(1) of the constitution.

Article 129(1) reads, "If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon".

However, neither President Jayawardena, nor President Premadasa, nor President Wijetunga, nor President Kumaratunga, nor President Rajapaksa cared to refer this matter to the Supreme Court for an authoritative opinion. This was in spite of the fact that two resolutions for impeachment of Chief Justice Sarath N. Silva were both thwarted by the President by resorting to the Executive powers vested in her.

Even when the question of impeaching Chief Justice Bandaranayake was first mooted, President Rajapaksa did not seek the authoritative opinion of the Supreme Court, and deliberately left it to his minions in Parliament to interpret the relevant provisions of the constitution in a manner that he indicated and to act according to such interpretations which were in clear violation of the provisions of Article 125(1) of the constitution.

Article 125(1) reads, "The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution, and accordingly, whenever any such question arises in the course of any proceedings in any court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination of such question".

The validity of the hurriedly arrived at purported findings of the Parliamentary Select Committee, appointed under Standing Order 78A as adopted in 1984, was challenged in the Court of Appeal. The question arose in the Court of Appeal as to whether or not S.O. 78A was consistent with the provisions of Article 107(3) of the Constitution. In terms of Article 125(1) the Court of Appeal was specifically divested of any power to determine that question and forthwith referred same to the Supreme Court for determination as required by the said Article 125(1).

Either genuinely unaware of, or deliberately suppressing any knowledge of the fact that the "Supremacy of the Legislature" which existed during the brief period of five years from 1972 had been abolished with the promulgation of the 1978 constitution, the Speaker, all government MPs, including the Deputy Speaker and PSC Members and even some Opposition MPs, arrogated to themselves the power to interpret the constitution on the entirely false premise that "Parliament was Supreme". Unaware of, or in callous disregard of the clear provision in Article 125(1) of the 1978 constitution that the sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the constitution was vested in the Supreme Court, supporters of President Rajapaksa from all walks of life, propounded their own theories supporting the Rajapaksa regime’s interpretation of the constitution. This support was based on the singularly false premise that "Parliament was Supreme" and therefore Parliament’s determination necessarily superseded any interpretation that the Supreme Court may choose to make.

Though altogether tragic, it was indeed hilarious to see and hear, on the electronic media, the pontifical assertions of the constitutionality of every single act of the Parliamentary Select Committee made by persons who were apparently not even aware of what the relevant constitutional provisions were. Statements reported in the print media were no less hilarious but were couched in less offensive language.

The authoritative determination of the Supreme Court in respect of the aforementioned "reference" was announced in the Court of Appeal on January 3, 2013. The Supreme Court, acknowledged by the Speaker in October 2012, as having the sole and exclusive jurisdiction in interpreting any and all matters relating to the constitution, unequivocally declared that the PSC and the proceedings therein were unconstitutional and therefore illegal. The Deputy Speaker was extensively reported in the print media to have stated categorically that, in accordance with relevant constitutional provisions, the PSC was only mandated to investigate and report, but not to arrive at a finding of guilt, in respect of the allegations. As expected, he thereafter made valiant and apparently effective statements to reinterpret the constitution to override his spontaneous assertion aforementioned.

A Writ of Certiorari was issued by the Court of Appeal quashing the findings of the PSC. The all-powerful combine of the Executive, the legislature, the sycophants in the judicial arm of the state and the hordes of those who could neither see nor hear of any wrong doing by the regime would have none of this and worked overtime to nullify and even ridicule the "authoritative decision of the Supreme Court" and the Court of Appeal order quashing the PSC findings.

On January 22, 2013, The Island newspaper gave great prominence to an article on "the judicial interpretation of Article 107(3)", which gave prominence to several non-issues, viz.

(i) The Supreme Court carried out the duty cast on them by the constitution to authoritatively interpret the constitution whenever the need to do so arose. (The legislature refused to abide by this and proceeded to act in violation of the constitution by asserting an imagined jurisdiction to do so).

(ii) A possible consequence of the interpretation of the Supreme Court determination is that it may need a revision of the constitution to reflect the wording in the SC interpretation. (The interpretation of the Supreme Court is strictly limited to the existing constitutional provisions and does not extend to possible amendments).

(iii) Judiciary trespassed the domain of the legislature. (The provisions of Article 129(1) only required the Supreme Court to provide the President with an authoritative opinion on Article 107(3) as presently in the constitution and certainly NOT to advise on any amendment of the constitution. It would be going outside its domain if in fact it did so. That would have been trespassing into the domain of the legislature).

(iv) A clear understanding of what constitutes misbehaviour, as referred to in Article 107, does not exist. (That is precisely the reason that a forum capable of defining it objectively is necessary).

(v) Since appointments of Superior Court Judges are dependent on good behaviour, the threshold needed to satisfy ‘good behaviour’ should in fact be low (This will only perhaps qualify rapists, murderers, robbers and cheats who have successfully evaded the long arm of the law to be appointed to the judiciary. How that will fulfil the appearance of justice defies understanding).

(vi) The last citadel of Rule of Law is an independent judiciary and an important aspect of good behaviour is the ability of the judiciary to resist interference from any quarter. (He seems to be blissfully ignorant of the fact that it was the Chief Justice’s strenuous efforts to protect the judiciary from interference by the Executive when the Executive was ‘knocking at its gates’ that sparked off this entire dark episode).

(vii) The judiciary had no jurisdiction to precipitate revisions to the constitution which it is committed to uphold under oath. If revisions are not needed the Supreme Court should advise Parliament on how to accommodate its determination under Article 129 or RE-VISIT its determination to fit within existing constitutional provisions. (The only duty cast on the Supreme Court by the constitution is to interpret the existing provisions of the constitution as at that time. It is for the legislature to abide by that authoritative interpretation in that instance, and, if so desired, for the legislature to amend the constitution for the future).

There is a set procedure to review or "re-visit" the determination of the Supreme Court. That was the only valid option lawfully available to the Executive or the legislature. Rejecting it with disdain and acting in flagrant violation of it was certainly not an available option.

It is abundantly clear that we have a problem because the legislature that makes the law has assumed the exclusive right to decide whether or not they themselves have broken the law.

How accurate Bertrand Russel was, when he observed that "Government can easily exist without law, but law cannot exist without government".