IMPEACHMENT: PSC FULFILLED ALL REQUIREMENTS – PART 111 : PSC “investigated” and “reported” on the allegations
Posted on January 13th, 2013

Courtesy The Daily News 

The following is the continuation of the article by Mark Cooray LLB (HONS) (CEY), PHD (CAMB),PHD(COL) published in the Daily News on page 7 of Saturday, January 12. The earlier article (relying on an extract from the Sunday Island) examined the roots of the concept of an address presented by Parliament or Congress for impeachment. A very important distinction was drawn between minor judiciary and the highest courts, in relation to removal of judges. This article now continues from the point the earlier extract ended.

This convention has been followed in Britain and in Sri Lanka and all parts of the world.

Such advice is generally given and received in private. But there is no objection to the President taking advice and publicising the advice.

Parliament COLLECTIVELY AS A WHOLE, on whom the responsibility of submitting an address to the President falls, DOES NOT DECIDE.

The PSC “investigated” and “reported” on the allegations. These are the words used in Article 107 and section 78A. The PSC did not DECIDE. If the PSC decided it would be ultra vires.

The procedure is for each MP to examine the evidence and make his/her own decision and vote. She/he is not bound by the report. The collective will of Parliament emerges from the final votes of individual members of Parliament.

A natural justice based hearing or judicial inquiry is not consistent with the concept of an “address”, in terms of practice in UK, US and other countries, as detailed above.

THE PSC

A few words on the establishment and work of the Parliamentary Select Committee.

The PSC was asked to do a difficult job. The difficulty arose from the concept of dismissal through an “address”.

Where the concept of “address” arises it provides no scope for natural justice, judicial review or judicial power.

The difficulty of the task of the PSC came from the Constitution and a hastily inserted provision through standing orders introduced by the Jayewardene Governemnt.

Where in the world do we have standing order regulating conduct under the Constitution?

Where in the world do we have a Court which does not know or understand the difference between standing orders and law (in 78A law means Act of Parliament).

The fault for the difficulties that have arisen for the Special Committee lies at the feet of the Constitution and the drafters of section 78A. A Parliamentary Select Committee NEVER exercises judicial power. By its very nature a select committee is under no obligation to follow rules of natural justice. What is the constitutional provision or article which requires this?

It must be emphasised for many who do not know, (lay people and even some lawyers) that standing orders are rules made by a parliament or a legislative house in relation to functioning of parliament or House. Examples of legislative houses are the Senate and Parliament under the 1948 Constitution or Senate and Congress in the United States.

The concepts of natural justice, judicial review and judicial power have been tossed around during the recent controversy. They are totally irrelevant. In my view, it is impossible for anyone from within or outside the Parliament, who knows about Parliament and the concept of judicial power, to think of a parliamentary or legislative committee exercising judicial power.

In my view, it is equally impossible for anyone from within or outside the Parliament, who knows about Parliament and the concept of natural justice, to believe that the courts can investigate a parliamentary or legislative committee exercising judicial power in its internal working.

The concept of judicial power first surfaced in Ceylon (as it then was) when it was used by Privy Council to invalidate legislation under the 1948 Constitution. The drafters of the 1972 Constitution were at pains to bury the concept of judicial power and it was equally shut out by the 1978 Constitution, in relation to actions unconnected with SPECIFIC powers given to the NSA or Parliament.

I have written about judicial power. The present leader of the opposition was a student to whom I taught constitutional law in the University of Colombo. The President was a student at the Law College when I was a Reader at that institution.

The present opposition leader Ranil Wickremesinghe’s failure to attend court, was perhaps due to understanding of the functioning of Parliament. This is to be commended. His stature as a statesman will be enhanced, if he openly expresses the beliefs which I think are within him about justiciabilty and the absence of power of court to interfere in the internal working of the Parliament. The exception is where it is specifically given power by Parliament or the Constitution in relation to parliamentary privileges.

It is desirable, WHERE APPROPRIATE, for a Parliament in a particular situation, to follow principles of natural justice or subject itself to judicial power in its internal workings.

Where in the world however has there been a demand for a Parliament or a special committee to follow principles of natural justice AS A PRINCIPLE OF LAW to be reviewed by the courts?

It is also important to note that section 78A under which the Committee was established is a standing order.

The report and investigation of the PSC is not binding on Parliament or President. It gives information for guidance of individual Parliamentarians and President.

The conduct of opposition members of the PSC

The opposition members walked out of the PSC. They thereby lost the opportunity to present a dissenting report.

They had an opportunity to present the causes for their opposition in a reasonable and rational manner. The conclusion is inescapable that that did not have valid reasons to present. Were some of them more concerned in causing disruption. Even after the walk out they could have prevented reasoned response to allegations made.

The alleged wrongs are not crimes or are minor offences.

Supporters of the Chief Justice tend to brush aside the reports on the allegations or state that they are fabricated. Some who support the Chief Justice argue that if the three allegations which the PSC determined are true, they are not crimes or, or if they are crimes are minor offences. This arguement is without merit. The Golden Key allegation is not a minor matter, if it is true. It is a dishonourable act which raises a cause for resignation.

Was the motive for the walk out by the opposition members in the PSC, that there was substance in some of the charges. There was no defence to some things. Therefore they could not write a dissenting report. The motive of some is to disrupt the government and create disruption and turmoil in the nation. What is the agenda of the TNA?

Was the chief Justice’s walk out from Committee proceedings due to the same cause?

A newspaper report contained a response by lawyers to some of the allegations. There was no report of a response to allegations on Golden Key issue, and alleged interference in appointment of judges hearing case involving husband. There was also no response on failure to follow judgement of Justice Mark Fernando in an order delivered by court.

The Golden Key issue demanded a response from those who opposed impeachment.

Non violent expression of opinion

Persons may express their views on demerits of what is being done. But after that good citizens must accept what is done legally and constitutionally.

A former speaker and UNP mayor speaks sense

A former UNP Mayor and Speaker of the House of Representatives M H Mohamed made a plea (Sunday Observer, December 16, 2012):

“The developments in relation to the impeachment of the Chief Justice are being used by various elements to politicise a simple procedural process of a functioning democracy aimed at reaffirming the supremacy of the people.

The source of all executive, legislative and judicial power in Sri Lanka is derived from the Constitution. The Constitution unequivocally states that the sovereignty of the people shall be exercised and enjoyed through the legislative, executive and judicial power of the people. Section 107 of the Constitution clearly lays down the manner of appointment of and removal of judges of the Supreme Court and Court of Appeal. The section makes it abundantly clear that the Government has followed the due process in initiating the impeachment motion against the Chief Justice.

Politicising a duly constituted procedural aspect of the Constitution to circumvent the mandate of a democratically elected government … needs to be condemned in the strongest possible terms in the very name of democracy.

As a senior politician I call upon all citizens to rally round President Mahinda Rajapakse and the government … to solve this matter through due process and protect the sovereignty of the people”.

Issues outside the legal and constitutional

Having commented on the legal issues, I proceed to make some comments on the ethical and non legal issues and the accompanying public debate.

A few words on public comment that has taken place.

At the outset I said there must be clear distinction between the legal and the ethical issues. There has been no such separation and the waters of debate have been muddied.

Freedom of expression with full scope for opposing views is the cornerstone of democracy. Yet in the debate there has been little respect for opposing views.

The public debate outside of Parliament has been at a very low level.

There are some who are motivated by hopes of an imminent Asian Arab Spring. There are some virulent opponents who may not intend an Asian Arab Spring, but who are unwittingly supporting or being used to establish conditions for an Asian Arab Spring.

There are those who blindly support the government with wild arguements. There is too much focus on parliamentary supremacy and too little on non-justiciability.

There are those who speak and write making submissions with respect for opposing views, honestly stating their point of view.

On all sides there is aggressive assertions and lack of respect for opposing viewpoints. The persons who express their views with respect for opposing views are in a minority in the debate.

Constitutional law is a very specialised subject. Many lawyers and lay people speak with lack of understanding of constitutional law and principles. The case for the government has been inadequately made.

The US government criticism of the impeachment is prepared and made by those with ignorance of the way in which their own state and national legislatures have functioned, which has been described above.

The Bar Council has held a meeting. It is alleged that proper procedures were not followed, an opportunity was not given for expression of views contrary to that of proposers of the motion and a proper vote or count of votes did not take place.

There are imperfections in all constitutions. The three post independence Constitutions are no exception.

Constitutions must be followed.

Persons may non violently and with respect for dissenting opinions of others, campaign to change the constitution. I will in a future writing suggest corrections for the present constitution including judicially enforceable rights, with no limitations of time within which action must be instituted, in relation to legislative and executive action which discriminates against citizens on grounds of caste, community, language, religion or race.

I also believe in need for amendments to the rights and freedoms provisions to remove limits of time within which a challenge is made.

Others may likewise campaign, non violently and with respect for opposing opinions, for amendments to constitution they believe are important.

(Concluded)

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