H. L. D. MAHINDAPALA

One of the arguments thrown in to defend the Chief Justice, Dr. Shirani Bandaranayake, claims that nowhere in the world does Parliament / legislature sits as accuser, judge, juror and executioner. It is argued that this is a violation of Baron de Montesquieu’s political theory of separation of power where the legislature, executive and the judiciary are compartmentalised to prevent one dominating the other.

A large crowd held a picketing campaign outside the Supreme Court Complex on December 4 protesting against the attempts made by the Judiciary to challenge the powers of the legislature and demanding the protection of people’s sovereignty. Picture by Vasitha Patabendige

This theory argues, quite correctly, that the concentration of the powers of all three branches of the state in the hands of one single centre leads to dictatorship. Concerned about life, liberty and happiness of individuals the founding fathers of the US Constitution embraced this principle of separation of power in toto and enshrined it as one of the pillars of the US Constitution.

The unwritten British constitution operated successfully on these principles, after taming the monarchical dictatorship, without writing it down in black and white. In fact, Montesquieu developed his theory of separation of powers after seeing it in operation in Britain. But in the context of the impeachment of the CJ Bandaranayake, where the issue of the separation of powers is hotly debated, it is the precedents set in the American Constitution, where the separation of powers shines at its best, that are most relevant.

The central issue in the current controversy over the separation of powers boils down to this: can Parliament/legislature sit in judgment over the CJ/judiciary, particularly when the legislature has accused the CJ of misconduct? How can the accusers be the judges, jurors and executioners?

It seems a fair question except that the Parliament has already set two precedents in exercising its judicial powers despite the claims of separation of powers: 1. A Parliamentary Select Committee was placed on the order paper of the House on September 5, 1984, to hear the case against Chief Justice Neville Samarakoon which completed its proceedings including passing a determination saying: “We cannot find anything in the speech and its contents even remotely of being interpreted as proved misbehaviour (of the Chief Judge).

We are therefore of the view that in the circumstances there exists no bias whatsoever for the removal of the said Samarakoon; 2. A Parliamentary Select Committee sat in judgment over the case of Harold Peiris, the former Editor of the Sunday Observer, on a charge of violating Parliamentary privilege and fined him Rs. 1,000. Though the issues are different, the underlying reality in both cases has been the same: the Parliament has been the accuser, the judge, the juror and the executioner.

Parliamentary privileges

However, the provisions of Article 4(c) of the Constitution stipulates that except in matters concerning parliamentary privileges, the judicial power of the people shall be exercised exclusively through the Courts. Which can mean that Parliament had no right to sit in judgment on cases which are outside the prescribed Parliamentary privileges. So did the hearing of the case of CJ Neville Samarakoon by Parliament violate Article 4(C)? Here’s the rub. As opposed to Article 4 (c), there is written provision in the Constitution for the Parliament to sit in judgement ONLY over superior court judges when they face charges of misconduct, as alleged in the case of Chief Justice Samarakoon.

Under Article 107 ( 3 ) the Constitution equates the Courts and Parliament as legally valid instrumentalities for hearing cases against judges of superior courts ONLY. So does Article 107 (3) stand in conflict with Article 4(C) which says that the judicial power of the people shall be exercised exclusively through the Courts? This, of course, leads to another question. If the judicial power is vested solely in the judiciary why did the Constitution equate Standing Orders on par with the law in Article 107 (3)? By including Article 107 did not the Constitution legalise and validate Parliament as another judicial entity to hear ONLY the judges of the superior courts?

Chief Justice Dr. Shirani Bandaranayake

And because this power is enshrined in the Constitution, the supreme law, is there a legal obligation or a necessity to pass an additional Act of Parliament to make the Standing Orders the “law”? Those who say “yes” and challenge the powers vested in Parliament through Article 107 in the Constitution must ask how many Acts of Parliament are needed to legalise and validate the provisions stated categorically in the Constitution.

Judging judges

The following quote from Article 107 (3) is the most relevant text in the Constitution that defines the power of Parliament to sit in judgment over judges of superior courts: “Parliament shall by law OR BY STANDING ORDERS (emphasis is mine) 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 misconduct or incapacity…………..” This clarifies and give Parliament the power to “provide” (the operative word) either by law OR BY STANDING ORDERS (no ambiguity here) for (1) all matters relating to the presentation of such an address, (2) including the procedure for the passing of such resolution, (3) the investigation and proof of the alleged misconduct or incapacity” of the judge.

Doesn’t this mean that the ONLY exception made in the Constitution, despite Article 4, is when it declares that the Parliament can act as judges in judging judges? Article 107(3) also make it mandatory for Parliament to “provide all matters related to the presentation” of the impeachment. For instance, in the case of Samarakoon CJ the PSC fully exercised the powers vested in Article 107 (3) and acted as judges in judging the allegations made against CJ Samarakoon. That Parliamentary Select Committee did not say that they did not have the powers to judge judges. Nor did the PSC appointed to hear the case of the current CJ challenge the legality of its creation, existence or authority and refuse to accept the appointment as members of the PSC. On the contrary, the previous PSC (Samarakoon), asserting that “the Parliament is supreme”, merely asked for an interpretation of the Constitution from the Supreme Court to clarify any doubts that may arise from 107.

The legal team of CJ, Dr. Shirani Bandaranayake, too is asking for an interpretation of this provision from the Supreme Court. The question before the Supreme Court is simply this: if Article 107 places Parliament unambiguously on par with the courts, and gives the powers of hearing the cases of misconduct of superior court judges ONLY to Parliament, can the Courts grab the powers vested in Parliament and hand it over to courts which would, no doubt, favour the CJ who is in the middle of controversial case?

Wouldn’t a new interpretation of this existing law, especially after being operative in two previous cases, give an unfair advantage to the CJ who is facing allegations of her misconduct? Second, in the current heat of the tensions, arising mainly from the power struggle between the judiciary and legislature, will not the judiciary be tempted to grab power from Parliament and hand it over to the judiciary, especially because (1) the judges hearing the case will be appointed by the Chief Justice and (2) the judiciary has been conditioned, at least to some extent, by the pressures of the prevailing politicized ambience to act in favour of the CJ?

Supreme Court

The legal manoeuvres in the Supreme Court is to influence the judiciary to interpret the law to mean that the Parliament has no right to act as judges. On the surface of it there seems to be a justification based on the principles of separation of powers. But despite Article 4 (c), which confirms the separation of powers, the framers of the Constitution have deliberately and consciously written Article 107(3) equating Parliament with the courts and handing over judicial powers to Parliament ONLY to hear cases of superior courts judges. The salient point to note here is that Parliament has not been given the total judicial powers turning it into a parallel or alternative body of judges. The separation of powers enshrined in Article 4 ensures that. The Constitution is very specific in saying that it is ONLY in case of hearing superior court judges that the Parliament can act as an alternative judiciary.

Parliamentary Select Committee

It must be reiterated that the supreme law stated in the Constitution gives total judicial powers to the judiciary with two exceptions: 1. Parliament to decide on its own house rules which are contained in Standing Orders and 2. in judging impeachment cases of the judges in superior courts. The second exception is, indeed, significant because it overrides the solid principles of the separation of powers governing the Constitution. Coming as it does from the supreme law declared in the Constitution there can be no doubt about it. Only a questionable interpretation tilted in favour of the judiciary yearning to stage a legal coup can grab the powers vested in the Parliament by the Constitution and hand it over to the courts.

If there is any doubt about the legislature acting as the judiciary, particularly when the separation of powers is enshrined in the constitution, it can be clarified with the precedents set under the provisions of the American Constitution. Despite the categorical separation of powers in theory in practice the Constitution has set precedents where the legislature crossed its boundaries and acquired powers of judiciary ONLY for limited purposes of impeaching judges and presidents.

The example that is most relevant to the case of CJ is the trial of President Bill Clinton by the House of Representatives and the Senate. The following time-line, culled from a website, outlines the process in which President Bill Clinton was tried by the Senate. First the House of Representatives debated whether he should be tried or not and then approved the two articles of impeachment.

On December 18, 1998, the House of Representatives engaged in a fierce, daylong debate whether to impeach President Clinton or not. On December 19, 1998, after 13 1/2 hours of debate over two days, the House of Representatives approved two articles of impeachment, charging President Clinton with lying under oath to a federal grand jury and obstructing justice. The trial of Clinton went to the Senate.

On January 7, 1999 trial of President Bill Clinton began in the Senate, with the senators sitting as jurors.

On January 8, 1999, the Senate unanimously agreed on a process for continuing the trial. January 25, 1999, the Senators heard arguments about dismissing the charges against President Clinton and then deliberated in secret.

January 27, 1999, in 56-44 votes, the Senate refuses to dismiss the charges against President Clinton and agrees to seek depositions from Monica Lewinsky, Vernon Jordan and Sidney Blum.

January 28, 1999, in a party-line vote, the Senate OKs a Republican plan for the impeachment trial’s deposition phase, and sets February 12 as a target date for the trial’s end.

The rest, of course, is history.

Judicial system

As shown above, the cases of Chief Justice Neville Samarakoon, Harold Peiris and Bill Clinton demonstrate amply and clearly that the impeachment of CJ Bandaranayake by Parliament has been done within legally valid principles, precedents and parameters. In fact, when CJ appeared before the Parliamentary Select Committee she too acknowledged and conceded by her presence that she recognises the PSC as a legally valid instrument to hear her case. She walked out questioning not the validity or the legality of the PSC but procedures adopted by the PSC.

It is the Parliamentarians who had not appeared before the Courts — and is not likely to appear before Courts — on the ground that Parliament is supreme and they are not subject to the law of the courts on this issue. The counsel representing the Parliamentarians are also bound to question the authority of the court to summon them.

The courts of course, can deliver an ex-parte judgment. But it will be a futile exercise. Who is going to enforce their judgments? The writ of the judges will not run beyond the borders of the paper on which they write their judgment against the Parliament. Whereas the joint power of the Parliament and the Executive can be enforced to the letter. This is not a value judgment. This is only a recognition of the reality — and reality is 9/10ths of the law.

Faced with this reality the latest moves of the Chief Justice is to strike back with political moves of her own. First she realised that the black-coated “coconut crackos” have no political or legal force. After that she used her powers to summon her troops (magistrates/judges in the courts ) to show her strength. But that didn’t take her anywhere either. When she summoned the heads of courts she knew that she was making use of the judiciary as a political tool, partly as a show of strength and partly as a move to challenge Parliament.

In other words, she was stepping out of the legal domain — her legitimate grounds — to flex her political muscle. She showed her absolute disrespect for the judiciary when she used it to advance her politics disregarding how it would affect the interests of the people who had taken their cases to all the courts, not knowing that the magistrates/judges had closed shop without prior notice.

When the courts closed the doors to the people, acceding to her request, she was denying the basic justice due to the sovereign people about whom her “coconut crackos” in black coat talk so much about. Without inconveniencing the public and disrupting the daily operations of the judicial system she could have achieved the same objective by addressing a communiquƒÆ’†’ƒ”š‚© to all the judges which would be more in keeping with the dignity of her office. But her ill-advised move smacks of politicizing the judiciary to serve her political needs. It raised the obvious question: are the courts there to serve the CJ or the people? If it is argued that the Executive is using the Legislature against her then it can be argued that the CJ is using her courts as a political platform to hit back.

Financial documents

In any case, it is a defeat for the CJ because in lining up the judges behind her, she has tarnished the image of the independence of the judiciary and removed whatever legitimacy the courts had in hearing her case at any level. How can the tainted judiciary adjudicate in cases related to the state when they have openly declared that they are for the CJ? Of course, not all judges are with the CJ. Nevertheless, her action projects the judiciary as a tool of the CJ. The black-coated “coconut crackos” can crack all the coconuts in Sri Lanka if they want to. But judges are demeaning their own status and exposing themselves as willing tools of the CJ when they participate in a session summoned by the CJ which they know is a deliberate attempt by her apparatchiks, with the consent of the CJ, to politicize her case.

With her knowledge of the law she also should know that the legitimate forum for her is to take up her case in the courts and there are several cases pending in courts. To arbitrarily deprive the sovereign people of their day in court is a denial of justice. Justice delayed, as they say, is justice denied. Her ordering the judges of the lower courts to appear before her — a working day for the courts — is an act of tying the judges, hand and foot, to serve her political needs. Only other person who had tied a public servant is Mervyn Silva. Has she come down to that level?

Besides, she has a battery of lawyers to defend her. Which lawyer will take class action claiming costs from the judiciary for the losses incurred by the sovereign people because of her arbitrary decision to do a Mervyn Silva?

Morality can cut both ways. The morality she applies to her accusers must apply to her with twice the force because she is expected to be above politicians.

In her fight back she has taken the extreme political move of walking out of the PSC. She has the right to do so because the procedures adopted militated against all accepted norms of justice. That apart, it looks as if she had blundered because it has opened the door for the PSC to deliver their judgment the day she quit. She had given the upper hand to the PSC because there was no point in holding hearings without her. She has also deprived herself of the opportunity of cross-examining witnesses.

As lawyer V. K. Choksy stated, quite correctly, “if the Chief Justice was not guilty to the charges framed against her what she should have done was to participate in the PSC proceedings rather than boycotting it. Her walking away from the investigation process had denied the people from getting to know whether she is not guilty of the charges levelled against her in the impeachment motion against her.”

All this makes her look as if she had reached a critical stage where she has no defence and, therefore, decided to attack as the best form of defence. It was the wrong move to make especially after she had been handed the financial documents. She was asking for it and this was the time for her to challenge the evidence handed to her using whatever tactics available to gain time for perusal. But for her to cut and run at this critical stage makes it dicey for her.

She should have waited at least till the courts delivered their verdict. In quitting she has handed over the next move to the PSC. She has handed over all her rights on a platter to Parliament. By her action she has declared that Parliament is supreme and she has no option but to accept its verdict.