Judging the judges – (Unedited Copy)
Posted on January 10th, 2013

Nalin de Silva

Though the so called impeachment imbroglio is presented as a case of a tussle between the Parliament and the Judiciary for supremacy it is not so. If it was such then it would have been arisen in 1984 itself when there was an attempt to impeach Mr. Neville Samarakoon. Neither there were any such problems in the case of Mr. Sarath N. Silva as he realized there was no provision for the Judiciary to challenge the supremacy of the Parliament. Mr. Anura Bandaranaike’s ruling settled the issue, but this time the Judiciary has decided to take the Parliament by the horns as they say, and it is clear that there are other forces and objectives behind the move to challenge the Parliament.

We have been saying this from the very beginning, in fact even before the impeachment was presented and it is nothing but a case of attempting to force another so called spring following the Katunayake Spring, Academic Spring etc. As this Hulftsdorp Spring is also bound to fail there could be a Cricket Spring after March, and I am not referring to the big matches between schools. The west knows that the present government cannot be defeated through elections and it is attempting to remove Mr. Mahinda Rajapakse from the Presidency and send him to the guillotine together with his brother Mr. Gotabhaya Rajapakse for alleged war crimes.

The only crime that they have done is to defeat the Tamil terrorist movement against the wishes of the westerners, and as Solheim said recently as long as Mr. Mahinda Rajapakse is the President the westerners cannot do anything against him. It is not that the westerners initiated the impeachment but it is clear from the behavior of Mrs. Shirani Bandaranayake that she is being used to fulfill the ambitions not only of the westerners but of the Tamil racists, the NGOs that propagate the western ideology and myths being funded by the western governments or other parties with vested interests and all the other anti national forces that belong to the Brahmin Class.

The western education has created a set who would act according to the letter and spirit of the western attitudes and bogus values and most of them are either in the Brahmin Class or social climbers who wish to end up as Brahmins. This is the educated rural youth, some of whom are not so young now, and it is clear that the western education would not allow them to play the role that Dr. Gunadasa Amarsekera prophesized some years ago. It is only the so called uneducated and/or those with a national political consciousness who would realize what is happening behind the scenes of the impeachment.

 When the Judicial Service Commission wanted a written invitation from the Secretary to the President to meet the latter it was clear that the Brahmins (Hereinafter social climbers are also included in this category) influenced by the westerners had already decided on a Hulftsdorp Spring. For some reason or other Mrs. Shirani Bandaranayake has decided to follow the path of Sarath the former commander of the Army and not of the other Sarath the former CJ. It was a challenge from the Brahmins to the President who with all his weaknesses – after all nobody is perfect – is the person who gave the political leadership to defeat the Tamil terrorists and defeated separatism. He has a long way to go including the abolition of the thirteenth amendment which has been shown to have no legal status by late Mr. Raja Wanasundara who was the acting CJ for some time, but it is clear that the non national forces that include the westerners, Brahmins, the Tamil racists, NGO pundits do not want the President to achieve what the common man (podu jnaya of Mr. SWRD Bandaranaike), the children of fifty six (not to be confused with educated rural youth) had wanted when they elected him as the president in 2005 and 2010.

What we now see is not a tussle between the Parliament and the Judiciary but a struggle between the Brahmins and the common man for supremacy. The Brahmins are supported by the west and their henchmen and henchwomen but the common man has only the strength of his convictions. The meeting in Geneva in March is not very significant though the west would use it to “demonstrate” that there is no independence of judiciary in Sri Lanka in addition to breaches of human rights, war crimes etc., but if the masses or podu janaya are with the government these so called international assemblies carry no weight.

There is no possibility of bringing people to the streets against the present government and all that the government has to do is to appeal to the national instincts of the masses, which the Brahmins have lost through their education. Sarath N. Silva realizing the relative strengths of the Parliament and the Judiciary backed down, but the present CJ wants to risk even the “honour” of her profession as understood by the Brahmins, as she is backed by the non national forces. She has behaved like a politician and it is superfluous for Sarath Fonseka to invite her to enter politics as she has already done so. We have described these antics in these columns and there is no need to repeat them.

 Let us also discuss below the legality of the impeachment though what is important is the political aspect. We agree that the executive has more powers than the parliament according to the 1978 constitution and though people talk of the three pillars executive, legislature and judiciary they are not of equal strength nor of equal height. The executive is superior to the legislature which in turn is superior to judiciary in Sri Lanka. (In all countries even where there are executive prime ministers it is finally the executive that calls the tune.)  This is something that Sarath N. Silva realized when he backed down but in the present struggle the Goda Perakdoruwas are instructing the present CJ that Judiciary is independent of the legislature.

The Brahmins want to destabilize the government and they want to risk even the existing powers of the judiciary to displace the president and bring down the government if possible. What will finally happen is that the judiciary will lose even the powers that they have at present and the executive will become more powerful unless some pundits in the government are working according to some other agenda. Now let us look at the law from the common man’s view. 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 powers are exercised by the Parliament, and courts etc., are only instruments of the Parliament through which the parliament indirectly exercise the judicial powers.  In the case of privileges of the Parliament, it is not prepared to use these instruments and wants to exercise the Judicial Powers directly.

 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 as part of an institution 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 (or the judge concerned fails to disprove the charges) 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.

 Nobody not even the judges of the higher courts are perfect, and somebody has to judge the judges. The western modernity with its linear thinking and rigid 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 that 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 that the charges have been proved the President need not remove the accused judge. The way 107 (3) has been worded gives the President the power to 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 emphasised 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. 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 relevant ordinances or acts. There are courts that 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 need to 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. 

The lawyers representing the CJ have deliberately confused the issue and had taken the stand that the procedures followed in various courts and in the PSC should not be different, to delay the proceedings.  The oath of the CJ is a case in point and what they had wanted was to adopt delay tactics expecting an order from the Appeal Court following a Supreme Court interpretation that the PSC has no jurisdiction. The PSC should not have allowed the CJ to take a modified oath, and permitted a group of lawyers to represent her violating the standing orders and Parliamentary procedure. 

 Now CJ wants the Appeals court to quash the decisions of the PSC. However the Appeals Court has no jurisdiction over the Parliament or the PSC in this matter. It is true that according to Article 139 (1) “the Court of Appeal may in the exercise of its jurisdiction, affirm, reverse, correct or modify any order, judgment, decree or sentence according to law it may give directions to such Court of First Instance, tribunal or other institution or order a new trial or further hearing upon such terms as the Court of Appeal shall think fit”.

The question is whether the Parliament or the PSC alone could be considered as another institution in respect of this Article. It is clear that the Parliament derives its judicial powers to impeach the CJ from Article 4 (C) read with article 107 (2) and (3), as another institution. However, it is the President and the Parliament, and not the Parliament alone that has been empowered with the jurisdiction given in Article 107 (2) to investigate into misbehavior or incapacity of the judges and to remove. The investigative powers and the powers to judge (punish) have been separated and no judgment or order has been given by the President so far in the impeachment of the CJ. Even the Parliament has not adopted the address to the President and what we have at present is only a report by the PSC that was appointed by the Speaker to help the Parliament to investigate into this case.

The PSC has come to the conclusion that CJ is guilty of three of the charges but it is not an order, judgment, decree or sentence according to the law. The order or the judgment will be given by the President, and the Appeals Court will have to wait for that judgment before it nullifies it, if it is possible, in view of immunity of the President under Article 35.  The Appeals Court cannot quash a judgment that has not been given and it leads to a paradox in Aristotelian logic that is used in Roman Dutch Law. The PSC report is not a judgment that can be nullified by the Appeals Court and the Parliament or the PSC alone constitute no judges.

The judges comprise of the President and the Parliament (and the PSC which is only a committee that helps the Parliament in the investigation) and any writ has to be issued, if at all, to the President and the Parliament taken as one entity.  In any event it is improper for the two superior courts to judge their member judges. The judges may judge all the other cases but not their own cases. The judges of the two higher courts have to be judged by the Parliament and the President taken as one unit. If the Appeals Court gives a ruling based on Article 139, on any matter connected with the impeachment, then it goes 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.

 Even the Supreme Court cannot give interpretations when it comes to cases involving judges of the two higher courts for the same reason as it would be a case of judging one’s own case, though the Supreme Court has the sole and exclusive jurisdiction to hear and determine ant question relating to the interpretation of the constitution under Article 125. In any event the Appeals Court has no jurisdiction to hear cases against the PSC as mentioned above and it should not have referred any matters regarding the PSC to the Supreme Court for interpretation.  The MPs as citizens are judged according to ordinary law and even the validity of their elections to the parliament or whether they could continue as MPs if they are found guilty of certain offences are determined by the Courts. The election petitions are heard by the Supreme Court as they involve acts committed outside the Parliament.

The courts can hear cases that involve matters that take place outside the Parliament, but not within the Parliament, and I am surprised to find some President’s counsels confusing matters that take place outside the Parliament with those that take place within the walls of the Parliament. Section (3) of the Parliament (Powers and privileges) Act of 1953 states: “There shall be freedom of speech, debate and proceeding in Parliament and such freedom of speech, debate or proceedings shall not be liable to be impeached or questioned in any court or place out of Parliament.”  Further it has to be mentioned that the Supreme Court can decide on Bills under Articles 121, 122, 123 1nd 124 but it cannot judge on Acts that have already become Law as per Article 80 (3) which states: “Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed theron, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever.”  The constitution is now law (if it is not law what is law) and hence the Article 107 (2) and (3) cannot be enquired into by any court.  This implies that the proceedings of the PSC appointed under 107 (3) by standing orders as specified in that Article cannot be enquired into by any court of law.         

 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 before the courts, and when the CJ withdrew from the PSC she gave up that right, and thus has failed to disprove the charges against her.  In this regard Article (5) has to be quoted: “Every person shall be presumed innocent until he is proved guilty: Provided that the burden of proving particular facts may, by law, be placed on an accused person.” The much talked about Latimer House Principles have not been incorporated in toto into any Act in any country including the mother country of the Brahmins, namely England (UK), and it is clear that Sri Lanka has already incorporated these principles better than England which says merely “A judge of the Supreme Court holds that office during good behavior but may be removed from it on the address of both houses of Parliament”. The Brahmins should begin a campaign in their mother country to make that government adopt the Latimer House Principles.   

 One should not come to the conclusion that the present constitution together with British Parliamentary tradition is defended in this article. There is no alternative but to act within the existing law that has been imposed on us by western education based on linear thinking and rigid hierarchical structures and the present struggle between the Brahmins and the common man should enlighten those uneducated and/or those with a national political consciousness to draft a constitution based on cyclic thinking that is suitable to our country. 

 Addendum : The above article was written before the judgment of the Appeals Court was given on 2nd January 2013 based on the Supreme Court judgment of 1st January 2013. Now the question referred to the Supreme Court was the following for an interpretation. “Is it mandatory under Article 107(3) of the Constitution for the Parliament to provide for matter (sic) relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof etc., of any alleged misbehavior (sic) or incapacity in addition to matters relating to the investigation of the alleged misbehavior (sic) or incapacity?” 107 (3) referred to is the following: “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.”.

The answer to the question is obvious. Yes it is mandatory. The Parliament shall by law or by standing orders  provide for such matters. The Supreme Court may be the sole interpreter of the constitution. However, that does not mean that it can give any interpretation ignoring parts of the Articles of the constitution. What is given is not an interpretation but how 107 (3) should have been drafted in the wisdom of the Supreme Court, ignoring or by standing orders.  The Supreme Court has gone round the bush to “show” that the Parliament has not provided by law relating to the presentation of such an address, ignoring the fact that the Parliament could do so by standing orders.   

2 Responses to “Judging the judges – (Unedited Copy)”

  1. Wakula Gunapala Says:

    It is a clear clarification of the position painstakingly and logically done. I hope some of the legal pundits reflect and ponder calmly on these ideas expressed before rushing in, as some who moved in to where angels would have feared to tread.

  2. Wakula Gunapala Says:

    It is a clear clarification of the position painstakingly and logically done. I hope some of the legal pundits reflect and ponder calmly on these ideas expressed before rushing in, as some who moved in to where angels would have feared to tread.

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