The logic of the impeachment – (The Island did not carry the article attached.)
Posted on December 20th, 2012

Nalin de Silva. 

The economists usually say that on one hand this is the situation explaining some phenomenon related to economics, and then continue to tell us in the same breath that on the other hand the situation is exactly the opposite. The lawyers usually present their case listening to the other side only if the opposition presents a weak case. It is a case partly heard, but as far as the law is concerned it does not matter much. There are eminent lawyers arguing for or against the impeachment of the CJ without ever coming into any agreement on the important points. As laymen I have followed the debate but I find it difficult to understand some of the “points” raised by some eminent lawyers who argue that the impeachment is not constitutional, not according to the law etc. It may be due to my ignorance in law but when I consider the “solutions” suggested by them I know that their knowledge of law is not heads and shoulders above my knowledge which is absolutely minimal. The Bar Association is clearly divided on the issue as seen by the fights but I was flabbergasted when I heard that an important resolution on the impeachment had been accepted unanimously without even putting it to the meeting on last Saturday. When the learned President was asked by a journalist why no vote was taken on the resolution the reply that the latter got was that there was no need to put to the meeting a resolution that would be adopted unanimously. (Ekamathikava sammatha vena yojanavakata chande ganne ona nehe). I am not blaming the lawyers for their queer logic as the academics would give the lawyers a run for their money. During the year of 2011 when the University Teachers’ Association of the University of Kelaniya discussed the resolution to engage in trade union action I opposed it. The resolution was passed and soon a Professor in Economics declared that the resolution has been passed unanimously. When I reminded the meeting that I voted against the resolution the learned Professor said except for the Professor (me) the resolution has been passed unanimously (Mahacharyathuma herunuwita yojanawa ekmathikava sammathai). It appears that some learned people have a different opinion on the concept of unanimous which I find difficult to understand.

 As a schoolboy who studied Civics in the GCE (Ordinary Level) class, albeit without sitting for the examination in that subject, I came across these so called three pillars of western democracy. The textbooks give the impression that the three pillars executive, legislature, judiciary are absolutely equal, and it is unfortunate that most of us have this feeling that the three pillars are equal. What is not understood is that they are equal only as a general principle and the so called separation of powers on an equal footing is only found in the text books stemming from the unfinished bourgeois revolution in England. In theory the three pillars may be equal but in practice the pillars are neither of equal height nor strength depending on the constitution of the particular country. In Sri Lanka as well as in USA the sovereignty is with the people in the abstract but the three different sections of sovereignty are exercised by different organs. The western modernity that has a linear logic has to have somebody at the apex though in theory powers are supposed to be separated on an equal footing. According to the 1978 constitution of Sri Lanka the executive has more powers than the legislature which in turn has more powers than the judiciary. We may not agree with the constitution, but whether it is bahubootha or not we have no alternative but to abide by it until it is amended or repealed according to the very same constitution, unless of course a revolution puts an end to the constitution.

 The relevant articles of the constitution for this purpose are 4 (C), 107 (2) and 107 (3). Then we have the standing orders 78 (A) of the Parliament, which have been referred to, often without quoting them. The Article 4 (C), without denying the sovereignty of the abstract people establishes that the Parliament is superior to the Judiciary in Judicial matters. It says “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, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law”. The judicial power of the people is exercised by the Parliament and not by the Courts that are mere instruments used by the Parliament. The question is asked whether the Parliament could directly exercise the judicial power of the people who exist in theory in the abstract, other than in matters relating to privileges etc., of the Parliament and its members. The answer to that question is yes if the Parliament is recognized by the constitution as an institution through which the judicial power of the People is exercised by the Parliament for a specific purpose. That is if the Parliament itself is recognized by the constitution as an institution through which judicial power is exercised by the Parliament. 

 Now Articles 107 (2) and 107 (3) of the constitution recognize the Parliament together with the President (President is also recognized for this particular purpose) as an institution through which judicial power of the People is exercised by the Parliament in the case of impeachment of the judges of the two higher courts of the country. This is what 107 (2) says on this matter. “Every such judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity.”  As article 107 (1) empowers the President to appoint such judges, the constitution gives the power to remove the judges also to the President. However he cannot do so on his own and only the Parliament has the power to initiate the process and make an address to the President to remove such judges. The Parliament on the other hand can address the President only on the ground of proved misbehaviour or incapacity. Thus the Parliament has to prove to itself the misbehaviour or incapacity of the judge and the Article 107 (3) of the constitution quoted below provides for procedure as well as the investigation and proof of the alleged misbehaviour or incapacity.  “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 a 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.”. What is clear is that the standing orders alone could make such provision.

 The judges of the higher courts are not perfect, and somebody has to judge the judges. The western modernity with its linear thinking and hierarchical structures has a problem in such cases and in this case the power to judge the judges has been invested in the Parliament and the President, recognized as an institution by the constitution for the specific purpose. This again proves that in our constitution Parliament is superior to the Judiciary in exercising the Judicial powers of the abstract people. However, in this particular case the investigation and judgment (including punishment or otherwise) have been separated. The Parliament has the investigative powers (of the judicial powers) and the President has the power to remove the particular judge if the Parliament finds that the charges have been proved. It should be pointed out that even if the Parliament finds the charges have been proved the President need not remove the accused judge. The way 107 (3) has been worded gives the President power either to remove or retain the judge even if the Parliament finds that the particular judge is not suitable to continue in that capacity. The President can exercise his discretion proving that according to the constitution the executive is superior to the Parliament. If the President decides to retain the judge, it does not imply that he has neglected the Parliament or Parliamentary Select Committee but he has only exercised power given to him by the constitution. It is up to the President to consult anybody, a so called independent committee or even individuals before coming to a decision on the removal, though no such course of action is provided by the constitution. It has to be mentioned that if the Parliament finds that a judge is not guilty then the President does not have the power to remove such judge.

 According to 107 (3) the Parliament has the power to act as specified in standing order 78 (A) and thus the Parliamentary Select Committee (PSC) appointed under 78 (A) (2) for the purpose has the investigative power in a case of impeachment of a judge. It is the standing order 78 (A) (6) that has specified the period during which a report has to be presented by the PSC to the Parliament, and all the other procedural matters are governed by standing orders 78 (A). In particular 78 (A) (3) among others says: “The Select Committee appointed under paragraph (2) of this Order shall have power to send for persons, papers and records”. There is no provision to call for witnesses and to listen to evidences as such specified by the ordinances or acts. There are courts who do not summon witnesses and the procedure adopted by Labour Tribunals is different from that of the district courts or the higher courts. The PSC is governed by standing orders and no courts could challenge the PSC on any procedural matters or on anything pertaining to the investigation by the PSC. The PSC has the power to call for persons and those persons are not witnesses that could be cross examined. A person called by the PSC is not a witness in the sense of the ordinances and acts pertaining to evidence, and no court can challenge any findings of the PSC made according to the standing orders.       

 There are some MPs as well as lawyers who want a panel of retired judges, commonwealth judges, or others to sit on the impeachment. While the people in the abstract cannot agree to withdraw their sovereignty in Judicial powers by appointing foreigners to sit on judgment on impeachment of their judges in the higher courts, it is clear that new laws cannot be enacted to judge a person after he/she has been accused. The CJ has to be judged according to the existing laws of the country, the supreme law being the constitution, and the laws should not be changed even in the case of the CJ. The CJ   unfortunately has not respected the constitution. According to standing order 78 (A) (5) which says that “The Judge whose alleged misbehaviour or incapacity is the subject of the investigation by a Select Committee appointed under paragraph (2) of this Order shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce evidence. oral or documentary, in disproof of the allegations made against him”. The onus of disproving the charges falls on the judge unlike in the  cases in the courts, and when the CJ withdrew from the PSC she gave up that right.

 Then finally the question arises as to the interpretation of the Articles mentioned above, especially with regard to the Parliament using Parliament as an instrument to exercise the Judicial powers of the people. There is no ground for such interpretation as the Parliament so far has acted according to the constitution, and further the Supreme Court cannot decide on a case involving the impeachment of one of its judges, even if it is an interpretation. It is against the maxim of not judging one’s own case and all such interpretations, if needed, have to be made by the Speaker of the Parliament.     

13 Responses to “The logic of the impeachment – (The Island did not carry the article attached.)”

  1. Mohan Says:

    Here we go. Nalin also has joined the bandwagon of Mahindapala et al. No wonder Island did not publish this. There is nothing new in the article. Quoting all constitution etc is ok. We agree that according to the constitution Parliament has the power to investigate the judges. CJ may be guilty of all 14 charges. But did the CJ get the opportunity to defend herself? She was verbally abused at the PSC and less than 24 hours given to provide the defend. If government had all the proof, why was it rushed through? If the CJ of the country does not get a chance to properly defend him or her, what rights the ordinary poor citizens will have?

  2. Leela Says:

    Mohan,
    Reading and listening to countless arguments on impeachment, I am sure, very many simple people like us must have become a kind of experts on this particular section of the constitution by now. Hence, as per 78 (A) (5), one could argue that the onus of proving CJ’s defence lies primarily with her. But it is obvious that the CJ and her lawyers have been trying to shift the onus of proving her defence onto the PSC. This is the crux of the matter.

    In addition, it was clear from the very beginning, that the CJ and her lawyers have come up with all sorts of arguments to turn the PSC inquiry to a hearing that follow rules and regulations of a traditional court in spite of no such specifics were there as per 78(A) (3).

    Nalin has been saying these things throughout his writing and in the TV all along. Very rightly, Nalin has concluded that the CJ has the right to defend herself as per 78 (A) (2) but she gave up that right by withdrawing from the PSC.
    Leela

  3. lingamAndy Says:

    she gave up that right by withdrawing from the PSC.- She did not give up but she has been chased out (using uncivilied language to a woman)!

    My concern is , this what our CJ get to defent herself than what chance remining 770 LTTE will get (not come to the court last 4 years ? )

  4. Fran Diaz Says:

    We agree with Prof Nalin de Silva’s assessment of the CJ case. The Constitution is the Top Power, followed by the President, Parliament & the CJ&Supreme Court. However, the Chief Interpreter of Constitution, the CJ, in this particular case, is the Accused (of breaking the Law) & the Defence for the Accused, apart from her own group of legal defence, are the various Sri Lankan Legal Organizations. These legal fora have created various power blocs in unethical ways, pushing aside dissenting lawyers within the organizations, thus breaking the governing rules of those organisations.

    The Constitution is clear as to who is to judge the Judges if they erred, but the Judges do not want to accept the Constitutional rules.

    Now the CJ has gone to the Appeals Court, after a verdict of ‘guilty’ on three charges was delivered by the PSC (appointed as per the Constitution), requesting that the verdict of guilty be removed. But the Court of Appeal has to follow the Constitution too, isn’t that so ?

    And President has said (more or less) that he hopes to have a unique kind of solution (outside the books) for this particular case.

    So let’s wait and see.

    ——–

    Andy,

    You are referring to the remark by one PSC member who said ‘pissu gani’ (mad woman) to the CJ. This one remark is construed as ‘uncivilised language’ but possibly a large number of people in Sri Lanka may agree with that the remark, however ill placed it was, was apt, as Sinhala people know in what context it was made. Remarks in Sinhala language such as this particular one does not imply that the person is really mad, but appears irrational, or even might be a remark made in exasperation that the CJ has created more trouble in the troubled time, adding to the woes of GoSL.

    Perhaps the person who made that remark ought to apologise and close the matter once and for all.

    As for the hard core ltte members – do you/we have any idea just how damaged their psyches are ? And are they mentally fit to come to Courts ? Please read Dr Ruwan Jayatunge’s articles on Post Trauma Disorders (at this website).

  5. lingamAndy Says:

    Fran Diaz
    Agrred ‘pissu gani’ / ‘Visar Manisi’ (mad woman) is causual word we use in our day to day life in Sri Lanka but we never use to calll any not even Police contable woman ( madam) !

    are they mentally fit to come to Courts ? aggred but land of law say that is court should decite!
    Do not you think 4 years is too long any mental person ( inclue one woman with a child) out of 770 to come to court ?

  6. Fran Diaz Says:

    Andy,

    It’s the unexpected and unusual stress created by the CJ situation that prompted such a remark, and it ought to be overlooked. But since it has become such an issue, an apology is appropriate. Yes, such remarks ought not to be made in a Court setting.

    How can anyone pass normal judgement on the ltte hard core, when these poor people were taken in mostly as young children by the ltte and trained to hate & kill ? They cannot even be held responsible for the own actions. They are in truth certain types of Psychiatric patients and ought to be treated as such under the law.

    In my humble view, they have to undergo a long period in rehab, and taught skills, and to live normal lives. It will take a long time. I am not sure how long, but may vary from case to case. It is foolish to let them lose into normal society and expect them to live normal lives. Besides, they may be victimised once more by unscrupulous people.

  7. lingamAndy Says:

    Besides, they may be victimised once more by unscrupulous people- Fully aggred !

  8. Charles Says:

    Thank you Professor Nalin de Silva.

    You make the whole question of Impeachment and the Independence of the Executive, Legislative and the Judiciary absolutely clear. The leading Lawyers like S.L.Gunasekara do not seem to have understood at all what an Impeachment is and what it is all about.

    All those anti-Impeachment black coats, Opposition MPS, Lakshman Kiriella and the rest had better read the article several times before they open their mouths again to speak on the Impeachment of the CJ Shirani Bandaranayaka.

    It is best every body waits to talk about it if they want to after the Parliamentary Debate on the PSC report. It is more honourable for CJ Shirani Bandaranayaka to be patient and keep her mouth shut until after the Parliamentary Debate as there is a chance that the President may still exercise his discretion and retain her in her position as the CJ.

    No wonder the ISLAND News Paper did not want to publish it, because of its Editor’s pronouncements in ignorance of what is an Impeachment.

  9. Marco Says:

    Did the Daily News carry this?

  10. douglas Says:

    Two matters to draw the attention:

    1. In paragraph 4 of above presentation it is correctly stated that:”………..removal on the ground of PROVED misbehaviour or incapcity”. What is the interpretation given to the word “proved”? I believe it is none other than by an inquiry or investigation conducted by authorized persons in a “judicious”, “responsible”, “fair”, “democratic”‘
    “accountable” and “transparent” manner. In this particular case, it is pointed out by three members of the PSC and the accused (CJ) and her representing lawyers, that the proceedings of the investigation did not at all conform to the standards expected of such a body. Therefore the “verdict” of guilt is questioned. I suppose that is what the CJ is doing through her application to the Court of Appeal. In this forum the representations are to deal with matters of “interpretation” of Constitution and other relevant “International Agreements and Covenants” that Sri Lanka may have signed and agreed upon. But unfortunately Prof. Nalin de Silva does not deal with such matters, excepting to lay down what is in the Constitution which I believe most of the people are now aware of.

    2. The Presidential Power: This presentation also says correctly “…. if even the Parliament find CJ guilty, The President can decide to “KEEP THE CJ” in the position. That is why even Mr. Charles Perea tells CJ “be patient and keep her mouth shut”. Is this a correct thing to go on living with? In my opinion NO.

    This reminds me President J.R.Jayawardana’s sayng: “THE PRESIDENT CAN DO ANYTHING EXCEPT TO MAKE A MAN A WOMAN AND A WOMAN A MAN”. This was accepted and heavily supported by Late Mr. Lalith Athulathmudali who was a brilliant lawyer and democratic political leader. No wonder that some other prominant leagal personnel who went to see him and advise against it were “chased out”. (This story I read in one of the presentations in this web page)

    Every President who came after Hon. J.R.Jayawardana, and Hon. R.Premadasa vowed to do away with this burden of “Executive Presidency”. Have they done it. NO. Why? Answers are too many to lay down in a comment like this. Please remember, it is because of this power even a Mayor of a Municipal Council who embazelled counncil funds and went on a shopping spree was given a “PARDON” by the President, after he was convicted and sentenced to prison by court of law and upheld in a higer court in an appeal.

    My opinion is (a) a person, must be found guilty or not guilty after a judicious, responsible, accountable inquiry/investigation and then only he/she can be decalred “PROVED” of any wrong doing. (b) Once the person has been PROVED and FOUND guilty, he/she should not be PARDONED even by the President of the country.

  11. Dilrook Says:

    Leela is correct on the interpretation. The onus is on the Chief Justice and she has been given the opportunity to do so. She walked out of the second PSC hearing which is totally unprofessional. In doing so, she failed to make use of the opportunity.

    However, this whole episode of the impeachment is a wrong move. Supreme Court judgement on Divineguma Bill was correct as per the law made by the Parliament. The obstacle to the Bill is the damned 13A, not the Supreme Court that interpreted the law. Thanks to the hype about this needless impeachment, the momentum that was gathering against 13A has been supressed and diverted.

    This is a slide towards dictatorship. Important it is to remind ourselves it was dictatorship that imposed 13A in 1988. This is the curse of the two thirds majority. Now the government is in another dilema to appoint the next Chief Justice who is subservient to the ruling family. For some reason, this search is going to be very difficult without introducing a totally new face to the Supreme Court panel of judges. At the end of this whole drama, the nation will be left with 13A and 13P, a puppet judiciary and helpless people where Indians (including Tamil expansionists) ruling the country at will through these tools and a pro-Indian ruling family panicking in the fear of war crimes investigations willing to sell the country to save their skin. Little they realize the ungrateful IC, India and Tamil voters will anyway drag them to the Hague regardless of what they do when the majority deserts the ruling family for appeasing Tamils too much at the expense of Muslims and the Sinhalese. Politicised courts will be their worst enemy then.

  12. Leela Says:

    Whether the judgement at the parliament by MPs will be based or on the PSC report or not, everyone knows that they will vote the CJ guilty. But must not forget that this impeachment has become so politicised, the people have become the jury.

    It is perfectly clear that the entire alliance that had lined up behind SF at the last presidential election is now standing behind the CJ. So much so, they have become absolutely blind for CJ’s wrong doings however one proves it. For those people, the CJ is innocent no matter what. This is where, as Dilrook says, if Rajapakses are to avoid Hague, they have to retain with them all those that voted for MR at the last Presidential election and win every election to come. It’s better if they realize, whatever the government does for Tamils, they will not vote for MR or his party.

    Whether Rajapakses expected it or not, this impeachment has now become a bare knuckle fight. There will not be any reconciliation as Charles says. That stage has passed for manipulators have taken their positions from the very beginning. Just read the letter that CJ’s son released to the press at the very beginning. Clearly, it was the first pre-planned battle cry to rally troups. So, I do not believe for a moment that both Shriyani Badaranayake and Mahinda Rajapakse can come to an understanding where both could hang-on to their positions. It will be fought out just like SF vs MR. Only this time, it will be won not at an election but on rallies, gatherings and smartness. I think Rajapakses will win in the end. I hope, they will attend to 13A immediately afterwards.
    Leela

  13. Fran Diaz Says:

    We think that the initial GoSL knee jerk reaction to the CJ matter was that there was a presumed Security Issue at stake.

    Whichever way we slice it, and whichever government that comes into power (after Independence 1948), in post-Cold War Sri Lanka, there will be elements to topple that government, however well that government performs by the People. Going with regional power blocs is a smart move, while keeping a sense of BALANCE there too. GoSL has done fairly well in balancing the powers that be as well as the various -isms. Various small power blocs in Sri Lanka that were built up during the Colonial times practicing the ‘divide & rule’ principles, will hang on by the skin of their teeth and attempt to oust the GoSL.

    What the People need to do is to see clearly through the fog of ‘side shows’ that are being put up, that Justice is done by the People, and those who commit inequities against the State itself are exposed and justice meted out accordingly, Sri Lanka style.

    The bulk of the People must help the President & GoSL to ease out of the 13-A, with alternative, life supportive systems in place.

    The challenge to the People is to keep a sense of Balance when some well known folks are losing theirs. The mass of Sinhala people have always generally acted through their Hearts, at the cost of being slammed left, right and centre by various small power blocs with vested interests. The human Mind can concoct all sorts of Games for Power & Money, but in the end Truth/truth wins. That is the immutable Law.

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