| by M. A. Sumanthiran
“All rights secured to the citizen under the Constitution are worth nothing and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.” - Andrew Jackson
( January 21, 2013, Colombo, Sri Lanka Guardian) Friday, the 11th of January 2013 will go down in the history of Sri Lanka, as a day marked by the accomplishment of a feat but not a victory, a day of conquest but riddled with cowardice, a splendid display of power but not strength, a day of triumph but drenched in iniquity.
All through the island was heard the death knell…of the judiciary, its independence, but even more: of justice, freedom, liberty, security and rights – our rights. The notion of rights as a nation, a people or an individual is now nothing more than a mere bubble… a fanciful world of utopia only to be imagined but not to be experienced…. to be touched but not grasped.
What does the impeachment of the 43rd Chief Justice of the Democratic Socialist Republic of Sri Lanka have to do with the death of rights? Everything.
As James Madison, the 4th President of the United States of America stated, “the accumulation of all powers, legislative, executive and judiciary in the same hands, whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny”.
It is indeed otiose to state that inasmuch as power corrupts, absolute power corrupts absolutely and one cannot expect anything but detriment and a downward plunge in every sphere of life and in every social strata, if all powers are vested in the same hands. Such is true in ordinary day-to-day life: in our homes, schools, society and institutions. It is more so in the case of a nation where millions of citizens have reposed the power they possess, the sovereignty vested in them by the Constitution, in trust upon the arms of government.
This is precisely the reason as to why having proper checks and balances among each of the three arms of government, namely the parliament, the executive and the judiciary which constitutionally have supremacy in their respective realms, is not just a beneficial accessory but a necessity, without which the life of the nation will surely perish. Unfettered discretion and exercise of power is a concept alien to any country based on the rule of law, as such is a contradiction in terms with democracy. Democracy is by no means majority rule alone, but necessarily entails respect for human rights and the rule of law, without which we are reduced to the rule of mere men, based upon nothing but their whims and fancies which could be anything now and something completely different five minutes from now. Worst of all, there is nothing that can be done about it, as none can have recourse to the law. Even if they did, it would be futile.
In Sri Lanka, up to now, there was at least a guise of maintaining an appearance of independence and separation, as much a sham as it was quite often. However, as of Friday, there has clearly been a blatant disregard of any such constitutional separation, giving rise to a situation where all powers are now exercised by the executive-controlled parliament, manifestly self-appointed to act in such capacity…indeed a personification of tyranny. In such a case of tyrannical rule, one can expect nothing but abuse, corruption and a complete disregard to the rule of law, perpetuating a whimsical rule of the powers (or tyrants) that be.
In the process of upholding the rule of law, which in fact is the purpose of each arm of government, it is imperative that each constituent does, not what they like, but what they ought. Such, of course is determined by the law of the land. As such, if one constituent oversteps their mark or encroaches on the powers vested by law in another constituent, there must be remedial measures in place stipulated by law, with the sole purpose of upholding the rule of law which is an integral part of the life of the nation.
Thus the Constitution of the Democratic Socialist Republic of Sri Lanka, of necessity stipulates the proper, lawful mechanism to be adopted for the impeachment of among other constituents, a judge of the Supreme Court or Court of Appeal. Article 107(2) and (3) of the Constitution provides for such mechanism and as such the Hon. Chief Justice cannot be removed by any other extra-legal method.
Article 107(3) of the Constitution provides as follows:
“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.”
In the past few weeks there has been much controversy as to the proper interpretation of this provision. However, Article 125 of the Constitution, the highest law of the land, clearly stipulates that the Supreme Court has the sole and exclusive jurisdiction to interpret the Constitution, which necessarily excludes any excuse for an interpretation proffered by any other person, institution, the executive or even parliament. In fact, such position was endorsed even by the Hon. Speaker of Parliament on 9th October 2012 when he stated that the right to interpret the Constitution is the province solely of the Supreme Court.
As such, the Supreme Court in its determination of this issue has very clearly elucidated the interpretation of the provision and has expounded the ambit of its stipulations. Accordingly, it was determined that the use of the word ‘or’ in the provision was not superfluous as parliament is presumed not to act in vain. The procedure for impeachment, as per the said provision, necessarily includes the presentation of an address and passing a resolution, but also includes the investigation and proof of the alleged misbehaviour or incapacity and also the right of the judge to appear and be heard in person or by representative. Does this then mean that it is left to the imagination of parliament to arbitrarily choose which procedures can be provided for by law and which can be provided for by Standing Orders? Absolutely not as such would be inconsistent with the basic tenets of the rule of law.
The Supreme Court therefore possessing the constitutional authority to interpret this provision, clearly stated that the reason why the word ‘or’ is used in the provision and not ‘and’ is because with regard to the procedural matters of the Select Committee, parliament has a choice. Parliament can conduct such internal affairs either by Standing Orders which are nothing but mere in-house rules or by incorporating it in an Act of Parliament. It does not make logical sense to state that it must be provided for by an Act of Parliament and by a Standing Order.
In addition to procedural matters of the Select Committee however, the process of impeachment also necessarily requires provisions as to the mode of proof, the standard of proof and the burden of proof etc. which cannot be provided for by Standing Orders, as to do so would be a manifest violation of the Constitution.
Article 4(C) of the Constitution provides that the judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established or recognized by the Constitution or created and established by law.
It is superfluous to state that engaging in an exercise of investigating and proving whether the Chief Justice of the country, the highest judicial officer of the land, is guilty of misbehaviour or is incapacitated is an exercise of judicial power. However, according to Articles 4(a) and 4(c) of the Constitution, legislative power of the people can be exercised by parliament directly, and judicial power in relation to parliament’s powers and privileges. This exercise, of engaging in investigating and proving, the alleged misbehaviour or incapacity of the Chief Justice is by no means a legislative act, nor does it involve the powers and privileges of parliament.
Therefore as per Article 4(C), the procedure to be adopted in relation to the investigation and proof of alleged misbehaviour or incapacity of a superior court judge can be provided for only by ‘law’ and Article 170 of the Constitution defines ‘law’. Evidently, Standing Orders are not laws. They fall within the definition of ‘written law’, if at all achieving the status of subsidiary legislation.
Thus, the entire procedure adopted by parliament with regard to the impeachment of the Chief Justice is fundamentally flawed and is completely unconstitutional. Furthermore, taking the matter up for debate in Parliament despite the order of the Court of Appeal quashing the purported findings of the Parliamentary Select Committees is a deliberate flouting of the Constitution which each Member of Parliament took an oath to uphold, but the government members have successfully upheld it more in the breach.
The Government went ahead and took a vote on a resolution on Friday. That was the identical resolution that was placed on the Order Paper of parliament on the 6th of November 2012 – resolving to appoint a Parliamentary Select Committee to investigate and report on the allegations contained in the resolution, albeit, in order to make an address to the President to remove the Chief Justice from office. The operative part of the resolution was still ‘to appoint a select committee’. Even after this was pointed out the parliament went ahead and voted on it, and resolved ‘to appoint a select committee of parliament’! This is the resolution on which HE the President will now act and purport to remove the Chief Justice from office!! This whole episode is tragic as it is comic.
This situation however is not merely a matter of Constitutional debate and intellectual argument. It is the death of the independence of the judiciary and the death of the rule of law.
If this is the predicament of the Chief Justice of the Country, what might be the predicament of the ordinary man on the street? You never know when it might be your turn to be a mere pawn in the hands of a tyrant…you may not realize it, but it has just begun.
