A postmortem on impeachment – II

| by Udaya Gammanpila

Views expressed in this article are author own

( December 26, 2012, Colombo, Sri Lanka Guardian) A comparative study of impeachments of previous judges of the Superior Courts was done in this column last week to determine how decently the present Chief Justice (CJ), had been treated during the impeachment process.  It also discussed the repercussions of the CJ’s decision to unilaterally withdraw from the impeachment inquiry.  The focus of this column this week is the much debated impeachment procedure.
The President of the Bar Association of Sri Lanka (BASL) and opposition political parties have alleged the CJ has been denied a fair trial.   However, Parliament has strictly adhered to the provisions in the Constitution and Standing Orders, from drafting the impeachment resolution to handing over the report of the Parliamentary Select Committee (PSC) to the Speaker.   According to the United National Party (UNP), these Standing Orders are in violation of the Constitution.  The President of the Bar Association, who is a UNP parliamentarian, is of the same view.  However, they have conveniently forgotten the standing orders were drafted and adopted by the UNP.  The present government has merely used the existing legal provisions to inquire into the alleged misconduct of the CJ.
Former CJ Neville Samarakoon, and Justices D. Wimalaratne and Colin-Thome were impeached by the UNP under the very same legal provisions.  Further, the UNP and Janatha Vimukthi Peramuna (JVP) made a joint effort to impeach CJ Sarath Silva, using the same legal provisions.  Neither the UNP nor the BASL pointed out the loopholes in the present Standing Orders on those occasions.  At least, they should have attempted to amend and rectify the loopholes even after the impeachments.  Nobody was interested in providing a fair trial for the judges until the submission of the impeachment in issue. It is true there are weaknesses in the procedure for impeaching judges of Superior Courts.  Similarly, there are weaknesses in the procedure for impeaching the President as well.  There are weaknesses in the Constitution, the supreme law of the country.  The Executive Presidency and the Proportional Representation system in the Constitution have been under criticism since its inception.  Improvement to the law is a never ending continuous process.
The Civil Procedure Code has been amended nearly 100 times.  Our Constitution has been amended 18 times and several amendments are also in the pipeline.  The USA has amended its Constitution 27 times and India has done so 97 times.  No nation has so far produced an ideal piece of law and laws are always subject to amendments.  Hence, there is nothing wrong in the proposal to amend the impeachment procedure.
Cannot be suspended
The application of law, however, cannot be suspended just because there are weaknesses.  Can we suspend punishments just because there are weaknesses in the Criminal Procedure Code and the Penal Code?  The accused should be tried with the existing Criminal Procedure Code and the guilty parties should be punished under the existing Penal Code, until improved versions of the law are enacted.  This principle is applicable to the impeachment procedure as well.  Parliament has to use the existing laws to impeach the CJ, irrespective of its weaknesses.
The PSC previously decided not to summon witnesses and reversed its decision after the CJ’s withdrawal.  This decision has also attracted the Opposition’s criticism.  This criticism reflects the lack of understanding of the legal procedures.  The Court of Appeal and the Supreme Court usually do not summon witnesses.  They settle cases through affidavits and counter-affidavits.  That is why writ and Fundamental Rights applications are settled faster than cases in the lower courts.
The impeachment process is expected to finalize proceedings in a shorter period, in terms of Standing Orders, since unresolved allegations against a sitting judge would disrepute the judiciary.  Hence, the PSC decided to settle the investigation with affidavits following the procedure adopted in the Superior Courts.  When witnesses submitted affidavits, the CJ had the opportunity to counter facts contained therein with counter-affidavits.  However, the CJ decided to withdraw from the proceedings without submitting the counter-affidavits.  Hence, the PSC was forced to reverse its decision and call witnesses for cross-examination in order to verify the contents of the Affidavits.
Article 107
The PSC’s decision to ignore the Supreme Court’s request to suspend the proceedings was also heavily criticized in the media.  In terms of Article 107, Parliament can enact the impeachment procedure either as an Act or as part of Standing Orders.  Parliament decided to enact the procedure as Standing Orders with a valid reason.  When an Act is in the form of a Bill, its constitutionality can be challenged before the Supreme Court.  Hence, judges get an opportunity to modify their own disciplinary procedure.  It is similar to a scenario where criminals are given an opportunity to modify the Criminal Procedure Code.
In the light of the above analysis, it is obvious the impeachment process has been included in the Standing Orders in order to avoid judicial interferences.  As guaranteed in the Constitution and reaffirmed by Speakers Anura Bandaranaike in 2001 and Chamal Rajapakse in 2012, the Judiciary has no capacity to interfere with the parliamentary legislative process.  Standing Orders are also a part of parliamentary legislative process. If they had the opportunity to do so, Parliament would never have been able to investigate any allegation against any judge.  Hence, the decision of the PSC to ignore the request of the Supreme Court is legal and logical.
The present Standing Orders in respect of impeachment procedure were passed in 1984.  The BASL found these Standing Orders to be in violation of the fundamental rights only in 2012.  Although they took 28 years for this discovery, if there is such an anomaly, it should be corrected.  However, the Judiciary has no authority to correct parliamentary Standing Orders and it is within the powers of the Parliament.  Hence, the BASL should have discussed the issue with the Speaker instead of instituting legal action.  Alternatively, they should have tabled a suitable amendment to the Standing Orders through a parliamentarian.  However, their legal action has now caused a conflict between the Judiciary and Parliament, which has far-reaching consequences.
In an unprecedented move, the CJ has challenged the PSC decision before the Court of Appeal, and in turn the Court of Appeal has issued notices to the Speaker and the members of the PSC to appear before the Court.  As explained above, Speakers have refused to accept orders or requests of the Supreme Court in the past.  In fact, Speaker Anura Bandaranaike has explained in detail in his ruling in 2001 why he rejected the Stay Order issued by the Supreme Court.  He quoted local and foreign judgments and expert opinions on parliamentary traditions, powers and privileges.  The rumour in the town was that H. L. De Silva PC, one of the best legal luminaries produced by Sri Lanka, drafted the ruling on behalf of the Speaker.
In the light of above, both the CJ and the Court of Appeal were fully aware of the fate of the notices issued by them.  Since the Speaker has rejected the orders and requests of the Supreme Court, he will definitely reject the orders of the lower courts such as the Court of Appeal.  However, the Court of Appeal decided to issue a Stay Order and Notices despite this reality.  The Judiciary has devalued itself before the eyes of the public by issuing these Notices.  If the Speaker ignores the Notices and the Stay Order, the public will gain confidence to do the same.  Hence, the Judiciary should not lose self-respect by making itself available for political games.

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Author: Sri Lanka Guardian

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