MARK COORAYƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  LLB (HONS)(CEY), PHD (CAMB), PHD (COL)--Courtesy The Daily NewsƒÆ’-¡ƒ”š‚ 

PART I –

REFLECTIONS ON THE IMPEACHMENT DEBATE ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” THE CONSTITUTIONAL ISSUES
THE CONSTITUTIONAL AND LEGAL IMPLICATIONS OF THE IMPEACHMENT AND THE BACKGROUND

Three constitutions and the independence of the judiciary

Sri Lanka has a constitution which has many defects. The 1931 Constitution was not perfect. The 1948 Constitution was not perfect. The 1972 Constitution was not perfect. The 1978 Constitution was not perfect. Where do you find a perfect Constitution, on this side of heaven and eternity?

I express some views on the Constitution and what constitutes independence of the judiciary.

I have in my books; The History of Constitutional Government in Sri Lanka 1796-1972, Reflections on the Constitution of Ceylon and Essays on the Constitution of Ceylon and other writings in local and foreign (UK, Canadian, Australian) academic publications commented on the 1948 and 1972 Constitutions. I have at some length examined the sections in the 1972 Constitution on judicial review and exposed severe short comings. I have not written on the 1978 Constitution. I believe the 1978 Constitution made worse, an existing bad situation, in relation to the independence of the judiciary under the previous Constitution.

Each of the three Constitutions was imperfect. There is no perfect Constitution. Each Constitution was progressively more imperfect. The source of our problems today around the independence of the judiciary are the two immediately prior Constitutions. The 1948 Constitution was neutral and British conventions relating to independence of the judiciary were observed. The following Constitutions wilfully undermined the independence of the judiciary.

Differentiate between the legal and the other dimensions

The analysis to follow focuses on (i) constitutional and legal consequences (ii) the rights and wrongs of specific actions, based on ethical values and (iii) the wider ethical, philosophical, social, political and other factors.

It is important to understand the difference, between what is illegal and unconstitutional and also between what is not legal and not constitutional, but permissible.

The clear and honest thinker keeps (i) separate from (ii) and (iii). I believe in the importance of obedience for fundamental laws of a state. I might disagree with content, but I believe in obedience. The debate on the impeachment has tended to blur these dimensions.

The background to dismissal of judges of superior courts and inferior courts

An article published in the Sunday Island, December 23, 2012 provides an useful background to the analysis to follow. What follows is the entire article. The authorƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s name is not given in the newspaper.

The Court of Appeal relied on an interpretation of Article 138(1) of the constitution which gives it the power to ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-correct all errors in fact or law which may be committed by any court of first instance, tribunal or any other institutionƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. Why the Court thinks it has the jurisdiction to correct perceived ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”errors in fact and lawƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ made even by parliament is because of the phrase ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”any other institutionƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ which also appears in Article 140, which the Court has emphasised in bold letters in its determination. Even a cursory reading of articles 138 and 140 will show that the term ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-any court of first instance, tribunal or any other institutionsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ refers to judicial bodies below the Court of Appeal (written from the high to the low).

The term ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-any other institutionƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ in articles 138 and 140 obviously refers to minor judicial bodies ranking below even the tribunals. If the term ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-any other institutionƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ is so broad that it includes the Parliament, then it has to inevitably include the Supreme Court as well. Does that mean that the Court of Appeal has the power to ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”correct all errors of fact or lawƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ that may be committed by the Supreme Court?

Brushed off

This kind of determination will be summarily brushed off by Parliament. Constantly having their decisions publicly ignored will do no good to the judiciary in this country. The Parliament Powers and Privileges Act of 1953 is very clear on the powers of Parliament.

Section 7 of the Act states that the immunities and powers of members of Parliament will be those conferred by this act and those exercised by the UK House of Commons. The Joint Committee on Parliamentary Privilege of the British Parliament of 1999 had the following to say: Section 229 ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-What happens within Parliament is a matter for control by Parliament alone. Such matters will not be reviewed by the courts. So far as the courts are concerned, they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privilegesƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. Section 232 ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Both Houses have long claimed, and succeeded in maintaining, the right to be the sole judges of the lawfulness of their own proceedings and to determine, or depart from, their own codes of procedure.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Courts of law accept ParliamentƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s claim that they have no right to inquire into the propriety of orders or resolutions of either House relating to their internal procedure or management. Except for purposes of statutory interpretation, the courts do not ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”look behind the ActƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ or consider themselves competent to consider the processes within Parliament preparatory to enactment. In the processes of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality, unless and until it is amended or repealed by ParliamentƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.

Landmark

In the landmark Privy Council case of Madzimbamuto v Lardner Burke (1969) Lord James Reid said the following about the powers of the courts vis-a-vis the Parliament: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalidƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.

The UNP has taken the position that the CJ should be removed only through a process based on the Latimer House Principles. As such it is pertinent to examine the argument put forward regarding the Latimer House principles. The Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence dated 19 June 1998 had the following to say about the procedure to remove judges ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence and to be judged by an independent and impartial tribunal. Grounds for removal of a judge should be limited to:

(a) inability to perform judicial duties and
(b) serious misconductƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.

The important phrase here is ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-to be judged by an independent and impartial tribunalƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.

Interesting

Britain is the head of the Commonwealth and we may perhaps gather what exactly was meant in terms of the Latimer House Principles by studying the British Constitutional Reform Act of 2005 which was promulgated long after the ratification of the Latimer House Principles were formulated. One of the most radical aspects of the British constitutional reform was that a new 12-member Supreme Court was created to be highest court in Britain and it would function outside the House of Lords breaking with centuries of British tradition. The interesting thing is to note how these judges of the Supreme Court were to be removed. Article 33 of the British Constitutional Reform Act of 2005 is as follows:

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of ParliamentƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.

That is all this huge 323-page Act of Parliament says about the removal of judges of the Supreme Court. This provision to remove Supreme Court judges basically follows the time honoured British practice.

There is no talk of an ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”impartial tribunalƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ or about filing charges, hearings and the right to defend oneself. Somebody files a motion in parliament and after due debate, parliament will decide whether to sack or retain the judge.

This was the good old system that the British bequeathed to us when we gained independence.

Article 52(2) of the Ceylon Constitution of 1947 was identical to the above quoted article in the British Constitutional Reform Act of 2005. When Ceylon became a republic, the same tradition was followed and Article 122(2) in the 1972 Republican Constitution also had the identical wording as the 2005 British Act.

Even though the 2005 British Constitutional Reform Act does not apply the so-called Latimer House Principles to the Supreme Court, these principles have been applied to the lower courts.

Good behaviour

Take Articles 133 and 135 of this Act which lays down the rules for the removal of judges in Northern Ireland. It stipulates that the Chief Justice, Justices of Appeal and judges of the High Court of Ireland hold office during good behaviour and they can be removed only by an address presented to the British parliament in Westminster (not the Northern Ireland Assembly) and before such an address is presented to parliament, the allegations have to be inquired into by a three member tribunal which will recommend whether such an address for removal should be made to parliament. Such a tribunal will comprise of a judge of the British Supreme Court, a sitting or former judge of the Appeal court of England or Scotland and a person from outside the legal profession.

Thus we see that the British Constitutional Reform Act of 2005, gives much greater protection to the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Lord Chief JusticeƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ of Ireland than to a member of the British Supreme Court. We must take care not to be misled by nomenclature here. According to the British Constitutional Reform Act of 2005, England, Ireland and Scotland all have ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Chief JusticesƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ but these so called chief justices are all ranked below the 12-member British Supreme Court.

The person who holds a position analogous to that of the chief justice in Sri Lanka is the President of the Supreme Court of Britain. The important thing to note is that the Latimer House Principles have been applied by Britain only to the subordinate judiciary ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” not to the highest court. The British Judicial Discipline (Prescribed Procedures) Regulations 2006 which complements the Constitutional Reform Act of 2005 confirms this application of the Latimer House Principles to the lower judiciary.

Judicial body

What this means is that the British constitutional experts have given due recognition to the fact that being in the highest judicial body is a different ball game altogether and the rules that may apply to the lower judiciary cannot be applied to the highest court. The Constitutional Reform Act of 2005 shows clearly that the British like the Americans believe that the most competent body to remove judges of the highest judicial body is the legislature. Like the Americans, the British too have placed the fullest confidence in their legislature to be able to make a considered decision to remove a judge of the highest court.

Australia is the current Chairman of the Commonwealth. In Australia, until a few days ago, the provisions relating to the removal of judges of the highest courts was identical to Article 33 of the 2005 British Act. According to Article 72(ii) of the Australian Constitution, judges of the highest court can be removed on an address presented to both houses of parliament.

Impeachment motions

Then just this month, the Australian Parliament passed the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of 2012, which on the face of it seems to bring the judges of the highest Australian courts under the Latimer House Principles. Article 13 of this brand new Act, has provided for the appointment of ad hoc ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”parliamentary commissionsƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ to inquire into the conduct of a judges before impeachment motions are proceeded with. Such a commission will consist of three individuals appointed by the prime minister after consulting the leader of the opposition. At least one member of such a commission should be a former senior federal or state judge. Even though this new piece of legislation appears to indicate that Australia has implemented the Latimer House Principles in full, closer scrutiny will show a different picture. In this regard the following should be taken note of:

1. The Australian Judicial Misbehaviour and Incapacity (parliamentary commissions) Act No; 188 of 2012, does not alter in any way, Article 72(ii) of the Australian constitution which says that judges of the highest courts can be removed by means of an address in both houses of parliament.

2. The appointment of a Parliamentary Commission to inquire into allegations does not take place automatically when parliament receives a motion to remove a judge. Separate motions have to be presented in both houses of parliament (in the same session) to institute such a parliamentary commission.

3. There is no permanent Parliamentary Commission to examine impeachment motions ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” they will be created (if at all) only as and when an impeachment motion comes before parliament.

4. There is no mandatory requirement that the Australian parliament has to appoint such a parliamentary commission every time an impeachment motion comes before them.

5. Section 3(2)(a) of the Australian Judicial Misbehaviour and Incapacity (parliamentary commissions) Act itself states that this Act is not necessary to institute a parliamentary commission to investigate allegations of misconduct against judges which means that commissions of inquiry can be appointed even outside the provisions of this act if the Australian parliament decides that such would be the best course of action.

6. Even if a Parliamentary Commission is appointed to inquire into the allegations against judges, section 3(2) (b) of the Act stipulates that the findings of such commission will NOT be the only means by which parliament will decide whether to impeach the judge concerned. What this means is that the decision of the Parliamentary Commission is not binding on the Australian parliament and whatever the decision arrived at by the Commission, parliament will still be free to do as it sees fit. Hence what we see here is that even in the Australian constitution, the original Article 72(ii) which allowed for the removal of judges on an address in both houses of parliament is completely intact. That right has not been undermined one whit. All that Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of 2012 has done is to give the Australian parliament the OPTION of appointing a parliamentary Commission to inquire into allegations of conduct. There is also the added convenience that this Act lays down a procedure for such inquiries.

The Australian parliamentary commissions to inquire into the conduct of judges will be both non-binding and non-exclusive. The report of the Parliamentary Select Committee that inquired into the impeachment motion against the CJ came out last week, printed in two thick volumes. When examining the transcripts of the arguments that went on in the PSC, it always seemed to centre on matters of procedure with John Amaratunga asking at one point what the burden of proof was going to be. The burden of proof in impeachment motions has been well established.

Natural justice

The Australian Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act which we have just referred to, states in article 19(1) that the parliamentary commission set up under this Act are ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-not bound by the rules of evidence and may be informed on any matter in any manner it thinks fitƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. Article 20 of this Australian Act stipulates that a parliamentary commission must act in accordance with the rules of ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”natural justiceƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ which was specified as

(a) giving the defendant particulars of the allegation being investigated
(b) offering the defendant a reasonable opportunity to make an oral or written statement in his defence

(c) offering the defendant reasonable access to any documents or other things acquired by the Commission for the purposes of the investigation

(d) giving the defendant a draft of the report and an opportunity to give comments on the draft report. (If one reads the voluminous report of the PSC in the Shriani Bandaranayake case, all the above requirements seem to have been fulfilled except the last which obviously could not be done because the defendant and her lawyers walked out of the proceedings.) With regard to the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”burden of proofƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ in impeachment proceedings, the 1933 impeachment trial of Federal Judge Halsted Ritter in the USA is of special significance.

To be continued

The Australian Freedom Coalition, Melbourne, Victoria, Australia, a branch of the World Freedom Movement, presented the Australian Valiant for Freedom Award to L.J.M. Cooray LL.B (Cey), Phd (Camb), Phd (Col) who Received this Award at The Seventh Annual Celebration in Melbourne of World Freedom Day On March 15, 1987 with the Citation: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…- With a rare determination, in the face of all kinds of difficulties, he has promoted the cause of freedom in his adopted country Australia, especially with his writing he has confounded educationalists and the media as well as ordinary Australians, with commonsense views and challenged us all to treasure our freedom and to use it with responsibilityƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚