Lawyers playing politics with the Constitution
Posted on December 21st, 2012

H. L. D. Mahindapala

The central issue argued before the Supreme Court was to decide whether the Parliamentary Select Committee (PSC) has the judicial power to inquire into the allegations made against the Chief Justice, Shirani Bandaranayake, or not. The argument came down to question the right of parliamentarians to judge the judges. Tied to this was also the question of whether the Legislature was superior to the Judiciary or vice versa. If the Constitution had given powers to Parliament to judge the judges then obviously the Legislature is superior to the Judiciary. CJ’s team mounted an argument to negate this on the principle of separation of powers. It claimed that the Legislature had no right to sit in judgment over the superior court judges even though the Constitution — the supreme law of the land — had  stated in Article 107 (3) that Parliament (specifically Standing Orders of Parliament) “shall provide for all matters relating to the presentation of such an address..”.(i.e., impeachment of superior court judges).

The task before CJ’s legal team was to deny the right of Parliament to judge the judges because Standing Order 78 A, according to their claim, was not law passed by an Act by Parliament. According to this team the Supreme Court should have first reviewed Standing order 78 A to test whether it was a Constitutionally valid instrument to try judges. Of course, they are not quite sure whether their argument is valid or not. So they are asking the Supreme Court to interpret the law to invalidate Article 107 of the Constitution — one of the key Articles in which judicial powers are vested, with absolute linguistic clarity, in Parliament. This Article unambiguously has equated Parliament with the law to judge the judges. Placing Parliament on par with the law to judge judges has thrown CJs team into a dither and forced them to seek the assistance of the Supreme Court to interpret the law in their favour. That is to say, they are asking the Supreme Court to take away the powers vested by Constitution in the Parliament and hand them over to the Judiciary.

Of course, there would have been no doubt in the law if Article 107(3) has stated directly that “Parliament shall by law……provide all matters relating to the presentation….” (etc) of an impeachment of superior court judges. This would hand over all matters relating to an impeachment of judges only to the “law”. But this is not what the supreme law of the land says. The CJ’s team is stumped by the critical clause which states “Parliament by law or by Standing Orders (emphasis mine) provide for all matters relating to the presentation” of an impeachment of superior court judges. It is the addition of the critical clause “or by Standing Orders” that empowers Parliament to act as a judge. Not knowing how to get out of the clearly stated law  in the Constitution which empowers Parliament to try judges, CJ’s team is craftily appealing to the Court to interpret the law in favour of CJ by taking away the powers granted in the Constitution.

This team relies primarily on Article 4 (c) of the constitution which states 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, 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”. According to CJ’s team this Article confirms the separation of  judicial and legislative powers granting the legal powers exclusively to the judiciary. Their case depends primarily on the Courts accepting this interpretation.  

A closer reading of the Article 107, however, reveals that this is another article in the Constitution which empowers Parliament to exercise judicial powers through institutions “created and established, or recognised by the Constitution”. In Article 107 (3) the Constitution has  “created and established” Standing Orders as an institution that can exercise judicial powers. So Standing Order 78 A has its birth in the Constitutional law enunciated in Article 107 (3).  It has been “created, established (and) recognised by the Constitution” as an instrument with judicial powers only for the trying of judges  in superior courts. The Constitution recognises and confirms the overlap with Article 4(c) without leaving any doubt. The separation  of powers, however, is  clearly demarcated when the Judiciary  is forbidden to step into the Legislature. In Article 4 the framers have excluded the judiciary from stepping into the legislature by stating categorically that they can make laws “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”.

Read together both Articles agree that Parliament has the power to exercise judicial power through “….institutions created and established, or recognized, by the Constitution…”  This gives power not only to “courts and tribunals” but also to “INSTITUTIONS” (outside courts and tribunals) “created, and established, or recognized by the Constitution.” Standing Order 78A has been created, established and recognized by the Constitution and, therefore, it needs no additional Act of Parliament to be accepted as law. So the contention that the separation of powers excludes the Parliament from dealing with judges is not quite accurate because the Constitution recognizes  Standing Orders as an alternative “institution” to that of the courts and tribunals to judge judges ONLY. In Article 107 the Constitution spells out the creation of Standing Orders as an alternative judicial institution when it states “Parliament by law or by Standing Orders (shall) provide for all matters relating to the presentation of an address” (of impeachment).  All in all, it is redundant for Parliament to pass another Act, in addition to what is stated in the Constitution, to create, establish and recognize Standing Orders as a lawful body entitled to pass laws. Such an argument must  necessarily deny the supremacy of the Constitution to create, establish and recognise laws above acts of Parliament. However, it should  be noted that this legal power is limited only to judge judges. In all other matters the courts are supreme.

Of course,  CJ’s team never fails  to argue at every turn that the law that exists does not give the parliamentarians the power to turn into a body judges. Nevertheless, their arguments  implies in principle that there is a law, empowering parliamentarians to sit in judgment, irrespective of whether it is bad or weak. It is because that a law exists, in whatever shape or form, that CJ’s legal team is asking for an interpretation that would take away the powers of parliament to sit in judgment and hand it over to the judiciary.  However, to argue their case they are focusing on a technicality. They are asking: Can Standing Order 78A acquire legal powers to judge judges without acquiring those powers from an Act passed by Parliament, reviewed by the Supreme Court and passed by a referendum? As stated earlier, since the Constitution has recognised Standing Orders as an alternative institution to courts and tribunals to  judge cases of ONLY judges of superior courts why does it  need another Act of Parliament to make  it law? Their objective is to downgrade Standing Orders as lacking in same legal status as an Act of Parliament which would then make Article 107 in the Constitution  — the unassailable legal force that creates, establishes and recognises Standing Orders as a parallel judicial institution — an illegal irrelevancy. 

Their argument rests on questioning the legal status of Standing Orders. They claim that the Standing Orders (the House rules) do not have the same legal status as that of an Act passed by Parliament. Though it is technically/superficially correct in that it was not passed by an Act of Parliament it lacks substance. In pragmatic, real and operational terms this argument is totally irrelevant because all acts of Parliament come through Standing Orders. No law is valid if it violates one comma of the Standing Orders. So can a law come out of a process (i.e., Standing Orders) which is not lawful , or valid as an Act of Parliament?   

This argument can be illustrated by the anecdote that should be known to most lawyers. In the case of the Chinaman vs. Policeman the former took the latter to court on the issue of paternity. The Chinaman won the case on the simple argument which he presented to court. He argued: “Potato planting potato coming. Tomato planting tomato coming. How Chinaman planting Policeman coming?” Similarly, laws can come only out of the womb of laws. Courts, tribunals and institutions must  be recognised by law to produce laws. So it is because Standing Orders are “created, established and recognised by the Constitution” (Article 107) that they have the identical legal status of an Act of Parliament to produce laws.

The argument of the CJ’s team also ignores the basic fact that the Standing Orders  of Sri Lanka have a history of 100 years at least, as known in the record books, through which all laws  came into being. According to historical records, the Standing Orders were first introduced in 1912 for the conduct of the Legislative Council of colonial times — the first legislative body through which all laws were introduced, scrutinised and passed. The power vested in the Standing Orders to govern the process through which all laws are passed is accepted universally. All the laws of the Legislative Council (twenties), State Council (thirties), and in independent Parliaments (late forties) which operated under three Constitutions, passed laws according to the original Standing Orders with, of course, amendments approved by each legislature from time to time.  Legislatures came and went but the Standing Orders stood there like the Mosesian laws carved in rock. 

This is confirmed in Article 74 (2) which states: “Until Parliament otherwise provides by law or by resolution, the Standing Orders of the National State Assembly, operative immediately prior to the commence­ment of the Constitution, shall, mutatis mutandis, be the Standing Orders of Parliament.” Article 74 (2)  not only maintain continuity but also gives added meaning and force to make Standing Orders a legally valid process for making  laws. It says that Standing Orders need not necessarily be passed by an Act of Parliament to become law. Even if it passed by a resolution it is good enough to be the law. This is obvious because Parliament is the only legal body established by the democratic will of the people solely to pass laws and  everything that comes out of it  either “by law or by resolution” shall be the law. So the primacy of the Standing Orders as a legal  entity entitled to make laws is unassailable. Besides, it can be argued that a history of 100 years , affirmed in Article 74 (2), has bestowed upon  Standing Orders the force of a convention which, in common law, is the equivalent of a statutory law.

But CJ’s team argue that Standing Order 78A is not the law because it has not been passed by an act of Parliament approved by the Supreme Court and the people at a referendum.  So does everything require an act of Parliament to be accepted as the law? Constitutional experts and the legal fraternity unanimously accept that not all laws come from Acts of Parliament. For  instance, the  original framework of the mother of all Parliaments, the British Constitution, is based on laws that were never passed by acts of parliament. That is why it is described as the unwritten/uncoded constitution. By and large the British Constitution came out of conventions, case laws which, over time, acquired legal validity as good as  acts  passed by Parliament. Consequently, conventions have the same legal force as acts of parliaments. The Sri Lankan Standing Orders  not only came from  precedents encoded in the British Constitution but also have stood the test of time  (100 years)  to be accepted as the law by which laws are passed. A convention of 100 years should have the same legal force as an Act of Parliament more so because it is this convention that continues to process the law and will continue to do so in the future, unless amended.  

The rules that govern Parliament are also the identical rules that govern the process by which laws are made to govern the nation. In short, without Standing Orders, which governs the supreme law-making body, there can be no laws. Standing Orders have been accepted as the unwritten law by which laws are made. To invalidate Standing Orders because it has not been written down by Acts of Parliament is to reject laws  as a product of an illegal process. Though unwritten as an Act of Parliament it is the due process that validates all laws. To argue on  a technicality like this, which is more a red herring, is a common tactic of  lawyers huffing and puffing hot air in courts when  they don’t have a  leg to stand on.

This  became clear when K. Kanag-Iswaram told the Supreme Court in melodramatic terms: “Barbarians are at the gate of the Temple of Justice. You let them in, they will destroy all that is sacred to us and install at the Altar of Justice, false prophets.” It is a statement filled more with rhetoric than reality. It sounded more like a plaintive dirge of hired female mourners from Negombo beating their chests and weeping for the death of someone they never knew, or cared for.

He was merely using hyperbolic clichƒÆ’†’©s to drive the fear of Moses into the Court by raising the bogey of the end of the world for justice if the Chief Justice is removed. This is utter balderdash. Sri Lankan judiciary has faced bigger challenges than this and come through with head held high. It had come through “Kudu” kings of the underworld gunning down judges on their way home. It has survived the stoning of judges’ houses. It has survived previous impeachments of judges. It has survived the sacking of the entire Supreme Court. It has survived witnesses being shot  dead in open court.  It has survived the autocratic rule of oppressive judges. It has survived threats from fascist JVP and Tiger terrorists. It has survived judges being hit with faeces, or chairs by angry convicts. It has survived corrupt lawyers undermining the integrity and the purity of the judiciary. If it has survived all this and more will the removal one Chief Justice be the doomsday for the judiciary?    

4 Responses to “Lawyers playing politics with the Constitution”

  1. dhane Says:

    Yes Mahindapala, it will survive after sacking manipulative first female Chief Justice Shirani Bandaranayaka. She can joint the bans wagon of SF

  2. douglas Says:

    Mr. Mahindapala – You have given an excellent representation as regards the present challenges to the Constitutional provisions that arose with the whole process of the Impeachment against the CJ. The main challenge, as I perceive is: Are the Standing Orders of the Parliament considered “Laws of the Land”? You argue it in the affirmative. That is fine.

    Then the challenge to this affirmative is : The Standing Orders of the Parliament are not Laws of the Land until and unless those are enacted by Act of Parliament. I believe this is another issue canvassed before the Courts and it is pending as at present day.

    The other matter that is much discussed and put before the public is the “conviction of CJ” by the PSC on three charges out of five. This has now gone before the Court of Appeal and an interim determination has been made by a pannel of three judges. In supporting this application before the Court of Appeal, it has been presented that the the PSC must adhere to the rules of natural justice in its investigation/inquiry and non-adherence to such rules would attract judicial review. It has also been stated “Indeed nowhere either in the relevant constitutional provisions or the standing orders seek to exclude judicial scrutiny of the decisions of the inquiring committee”.

    It is also stated: “Article 140 of the Constitution provides that, subject to the provisions of the Constitution, the Court of Appeal have full power and authority to inspect and examine the records of any court of first instance or tribunal or other institution and grant and issue, according to law, orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo waranto against the judge of any court of first instance or tribunal or other institution or any other person” (Please note above quoted statements are taken from the Judgement of the Court of Appeal made on 21-12-2012)

    In the above circumstance, my appeal to the relevant Authorities, viz the Attorney General to go before the Courts for and on behalf of the Governemnt and other persons and argue this matter,( perhaps in the same manner that Mr. Mahindapala has done,) very strongly defend the action of the PSC as legal and constitutional. That is what the PUBPLIC wants and wish the Governemnt to do for an on behalf of them.

    Your last paragraph, sorry to say (after reading such a brilliant analysis) is more subversive than constructive. Anyway, it was good to read the rest. Thank you.

  3. Leela Says:

    As we all know there have been impeachment proceedings of superior judges before. Only this time though we have experienced the CJ being tied ‘pirith nule’ at Supreme Court complex, and black coats smashing coconuts in front of the SC to curse the President and the PSC, and then they and many accused cheering jayawewa, and a heap of whatnots shaking hands with the CJ to wish her best as she left the SC to face the PSC inquiry. If these are not political and propaganda moves to wind people then what are they?

    Then there is the case that the CJ filed at the Appeal Court to squash impeachment proceedings against her. Is it not a clear cut case of ‘naduth hamuduruwange, baduth hamuduruwange.’ We have never ever heard this kind of legal wrangling before. We shouldn’t be naive to believe that this is the result of a resolve by an iron willed woman.

    It is obvious that the entire alliance that had lined up behind SF at the last presidential election have now elevated the CJ as their idol. Reading the web and talking some of them, I see that they are blind for any wrong doing by their new heroine. Instead, they are concerned the ‘natural justice’ denied to her. But what about the ‘normal justice’ she had denied to GK depositors. It is those black coated sharks that smashed coconuts and those that were paid by NGOs and their paymasters stand behind all this to make a ‘Haultsdorf spring’.

    Needless to say then, this is a planned move by NGOs and their paymasters. If only one reads the letter that CJ’s son released to the press at the very beginning of this drama he would no doubt understand it. To me, that letter was the first battle cry to rally anti government but divide opposition. But NGO Mafiosi may well have positioned themselves around the CJ long before that. Anyway, there cannot be reconciliation now for entire impeachment has changed to be a political game.

    So, whether judgement by MPs at the parliament will be based on the PSC report or not, MPs will vote the CJ guilty. But they must not forget that the people have become the jury.

    So much so, people see this has become a bare knuckle fight between Shriyani Badaranayake and Mahinda Rajapakse. They see, both cannot hang-on to their positions. The CJ who is found guilty by the PSC inquiry or the President must go. If we are to believe her son’s letter; the CJ would never resign. The president will have to keep people on his side and remove her. It will have to be done not through brawn but on propaganda, stings and smart moves.

    I am positive Rajapakses will win in the end, and soon she would be gone with the wind. I hope they will then attend to 13A without delay and break the backs of the Mafiosi for good.
    Leela

  4. Fran Diaz Says:

    Leela,

    We agree with your analysis of the situation.

    ————–

    What factors move some Sri Lankans to act against their own country ?

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