| by Ruana Rajepakse
( January 20, 2013, Colombo, Sri Lanka Guardian) Anyone who has even read a novel about a trial would know that guilt has to be proven on the basis of evidence, and the judge (however he may be styled, e.g. magistrate, commissioner or whatever) must be impartial, which is to say he or she should have no stake in the outcome and not be susceptible to influence or pressure from any quarter.
Cynics will say that this does not actually happen and that everyone, consciously or unconsciously, has his or her inbuilt prejudices. Nevertheless, the only occasion where the accusers officially become the judges is when the Parliament sits in judgment over judges of the higher judiciary.
While the lower courts can be brought under the purview of the higher courts or some judicial body like the Judicial Service Commission in this country which comprises of senior judges, this dilemma arises only in respect of judges of the apex court.
This is dealt with in Article 107 of the Constitution which states that the Chief Justice, the President of the Court of Appeal, and all the other Judges of the Supreme Court and the Court of Appeal shall be appointed by the President and “shall hold office during good behavior” until they reach the age of retirement which is likewise prescribed by the Constitution.
The removal of such a Judge is dealt also dealt with in Article 107 which declares that a judge “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”.
As a further safeguard, no resolution to impeach a judge shall be entertained by Speaker unless that resolution has been signed by at least one-third of the total membership of the House.
This is basically the system that prevails in India as well, both countries having the British model of judiciary. However, recognizing the highly volatile and partisan nature of politics in the sub-continent, the Indians have built in a series of procedural safeguards which we ought to look at after last week’s impeachment of Chief Justice Shirani Bandaranayake in a highly charged and politically partisan atmosphere.
The Indian “Judges Inquiry Act” of 1968 is described in its long title as “An Act to regulate the procedure for the investigation and proof of the misbehavior or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith.” Given below is a summary of its provisions.
When a motion to impeach a Judge is presented by the required number of Legislators in the House of the People or the Council of States (i.e. the lower or upper Houses of the Legislature) and is duly admitted, the first act of the Speaker is to keep the motion pending and constitute a committee to investigate the matter
This Committee comprises of the Chief Justice or other Judge of the Supreme Court, a Chief Justice of a High Court and a person who is, in the opinion of the Speaker, a distinguished jurist.
The Committee then frames the charges against the Judge on the basis of which the investigation is to be held. The charges are then communicated to the Judge and the Judge is required to be given time to present a written statement of defence. Where it is alleged that the Judge is unable to discharge the duties of his office due to any physical or mental disability, the Committee may arrange for a medical examination of the Judge.
The Committee has power to regulate its own procedure and summon witnesses, but is required to give a reasonable opportunity to the Judge to cross-examine the witnesses and adduce evidence in his defence.
Thereafter, if the report of the Committee contains a finding that the Judge is not guilty of misbehavior, or does not suffer from any incapacity, no further steps are taken. On the other hand, if the judge is found guilty, the motion for his removal will be presented to each House of India’s bicameral legislature for a vote to be taken.
When compared to the procedure that was recently followed by the Sri Lankan Parliament, it will be seen that the key difference is that in the Indian procedure a judicial investigation takes place first, before Parliament acts on the matter.