The people’s Legislative and Judicial powers

Some clarifications of last week’s events

People’s sovereignty – Legislative vs. Judicial powers

Several teams of lawyers have been attempting to uphold the Rule of Law and the Constitution over the last few weeks, as we have sworn an oath to do on behalf of the people and this Republic; some before Court arguing the legal principles, some in educating the masses across the country by public rallies, agitations and meetings and some defending the Chief Justice before the Parliamentary Select Committee (PSC).

Whilst I can in no way even assume to speak on behalf of all of these very eminent and erudite Counsel (and it is certainly not my intention to), it behoves at least one of us to place the legal and Constitutional issues before the public; a possible reason as to why we may be engaged in what we’re doing.

It is on behalf of the people that all these efforts are being made, to protect their sovereign power that they have vested in the Judicial branch of Government to which we belong and though lawyers and judges are at most times “camera-shy” (as opposed to the other two ‘Executive’ and ‘Legislative’ branches) and avoid the public gaze in their court work (mostly for professional reasons of confidentiality, ethics and integrity); this is an exceptional occasion that demands a departure from that norm, as it revolves upon the sovereignty of the Sri Lankan citizen and the protection of their right to an independent judiciary; thus the people need to know.

It is therefore important to clarify a few “miscommunications” that have been emanating, particularly from some Legislative corners of government on this whole process, which is the intent and substance of this writing.

The people and the Constitution they have promulgated is “supreme” in this Republic

The Democratic Socialist Republic of Sri Lanka (the Republic) by its 2nd Republican Constitution has vested complete, supreme and inalienable power of the Republic with its people by Article 3 and we do not, and cannot recognise any other “supreme authority” than that sovereign power in this Republic. This is the first and most important principle to comprehend, understand and clarify.

No one is above that supreme law of this Republic, the source of authority to the Executive, Legislative and Judicial branches of government is given by the people, who have opted to create (by Article 4) three distinct and separate institutions for their sovereign powers to operate; all of them for limited periods of time (as set out elsewhere), none superior or inferior to one-another, constantly being “checked and balanced” by each other; whilst all the time reposing in the people the absolute and inalienable supremacy and sovereignty.

The people, in their wisdom (working through their elected framers of the Constitution) have seen it fit to allow these three organs/institutions to operate as temporary custodians of their sovereign power, in “public trust”, for the people’s ultimate benefit and good governance. In this light let us traverse these institutions, their constitutional creation and limited (separated) mandates (excerpts only for purpose of discussion and type/print limitations).

• Sub-Article 4(a) – Legislative power of the people by Parliament, of elected representatives of the people
• Article 3 – In the Republic, Sovereignty is in the people and is inalienable ...
• Article 4 – Sovereignty of the people shall be exercised in the following manner:
• Sub-Article 4(b) – Executive power of the people by the President, elected by the People
• Sub-Article 4(c) – Judicial power of the people by Parliament through courts, tribunals and institutions created and established, or recognised by the Constitution... or by law... (except for Parliamentary privileges), etc.

Permit me also to attempt and explain (as this is constantly misinterpreted) the reference to “Parliament” in Article 4 (c); it means nothing other than the fact that as the people cannot “elect” their judges and set up courts by themselves, they have called upon their elected representatives to set up and establish a system of “courts, tribunals and institutions” in order that their “judicial power” maybe exercised by them, in due regard to the law and the Constitution.

This is all it means and nothing further (for if not there wouldn’t be a separate need for this sub-article); and this is furthermore apparent when analysing the rest of that sub-article 4(c). The people in their wisdom have also provided for an “internal check and balance” between these two organs; by providing for an exception at A 4(c) that the Legislature may deal with its own matters of privileges, immunities and powers but placing a provision at A 131 that it is the Supreme Court that can punish anyone for breach of such Parliamentary privilege; thus clearly this exception had nothing whatsoever to do with an impeachment of a judge!

With the above excerpts in mind, we will try to discern (as laymen) how the above “separation of powers” as intended by the people should operate when “impeaching a judge”:

• Article 107(1) & (2) – the People’s Executive power [A 4(b)] permits a President of the Republic to appoint and remove (after following a process of impeachment) a judge
• Article 107(2) – the People’s Legislative power [in their elected representatives – A 4(a) above] permits parliament to resolve to remove a judge (on certain given grounds)
• Article 107(3) – requires the People’s Judicial Power [A 4(c)] to operate in the “judging of that judge”, as it demands that procedure must be provided for all matters in connection with such a hearing, including the passing of such resolution, investigation and proof of the alleged misbehaviour or incapacity, etc

It is this third limb (people’s judicial power) that is presently the subject of interpretation in the Supreme Court, which is the only institution recognised by Article 125 of our Constitution as having “sole and exclusive jurisdiction” to determine such matters; as several petitioners have challenged the validity of the present Standing Order 78A (under which Parliament is attempting to carry out the present impeachment process) as being unconstitutional and in violation of the people’s judicial power.

The people have also set out in their Constitution as to how any Sri Lankan may be subject to a “judicial process” (it is expected that these same rules will apply to a judge of our highest courts) to adjudicate upon his/her innocence or guilt. The Legislature must enact a system of laws for the due enforcement of their judicial power, through courts, tribunals and institutions specifically created and established or recognised by the Constitution or by law.

“Every person shall be presumed innocent until he is proven guilty” before a competent court, according to due process under Article 13 (6) of the Constitution and Article 13 (3) stipulates that such a person charged is entitled to be heard at a fair trial by a competent Court; the Executive or Legislature may not encroach on those judicial processes set up by the PEOPLE of this Republic.

There is no “supremacy” of Parliament over other two organs in this Republic

This follows to an argument that is seen to be emanating from certain quarters of the Legislative organ of government, that “Supremacy of Parliament” is a concept operating in our Republic; it is not so, and this is clearly a misdirection of the Constitution.

The principle of “Separation of Powers” operates in its true classical sense in our 2nd Republican (1978) Constitution and that is the supreme law of this Republic; no single organ is superior or inferior to another; they each have distinct roles to play and therefore necessarily must work together.

The concept of a “Supreme Parliament” is known to monarchical or sovereign-ruled states (like the UK for instance) where in history, as a reaction to the sovereign using royal prerogative to undermine the people’s law-making power, this concept emerged with the people vesting “supremacy” in a separate law-making body called Parliament; in Sri Lanka it is hoped that we have no such issues of our laws being undermined by anyone; as it is us, the people who are meant to be sovereign (Article 3), we make our laws [Article 4(a)], we execute them [Article 4(b)] and we adjudicate upon them [Article 4(c)].

Thus such a legislative supremacy (which may occur elsewhere in the world) is distinguished from countries like ours where a “written Constitution” contemplates governance subject to the “Rule of Law”; imposing limits on each organ in their operation. This is simply to state that there is no “supremacy” in any one of them but they are meant to operate together, as intended by the people who framed the Constitution and gave them such limited power.

Analysing the order made by their Lordships of the Supreme Court on Thursday (22 November 2012), it may be seen from the language used that these strict separation of powers had been foremost in their minds; that the Judiciary will not assume a superior role to Parliament, expecting that same reciprocal courtesy from Parliament as well. The order (excerpts only) reads as follows:

“…This Court whilst reiterating that there has to be mutual respect and understanding founded upon the rule of law between Parliament and the Judiciary for the smooth functioning of both the institutions, wishes to recommend to the members of the Select Committee of Parliament that it is prudent to defer the inquiry to be held against the Hon. Chief Justice until this Court makes its determination on the question of law referred to it by the Court of Appeal.

“The desirability and paramount importance of acceding to the suggestions made by this Court would be based on mutual respect and trust and as something essential for the safe guarding of the rule of law and the interest of all persons concerned and ensuring that justice is not only be done but is manifestly and undoubtedly seem to be done…”

It is reported that this order was communicated to the members constituting the Parliamentary Select Committee (PSC) on Friday morning (23 November 2012) prior to commencing its proceedings. The Chief Justice, who in respect and regard to the Rule of Law that governs this Republic duly presented herself as summoned; some proceedings are reported to have ensued (which are privileged information) and it is also reported that further proceedings have been postponed for 4 December 2012.

Thus the following questions remain to be answered for the people of this Republic, who have vested in these two organs their sovereign power:

• By one branch of government (Legislature) continuing with a hearing process that is presently under review for its Constitutional impropriety by the other branch (Judiciary), and if, after hearing, the Supreme Court were to decide that the impugned Standing Order 78A is indeed unconstitutional thus rendering all proceedings under it unlawful, will this Republic not face a catastrophic situation with a clear conflict between its two equal organs of government?
• Will Parliament afford due cognisance to the request by the Supreme Court, to permit it to carry out its Constitutional duty and interpret the Constitution?
• If not, by continuing with a process that is presently under review by the organ of government that is the “sole and exclusive” authority to interpret this matter, is Parliament trying to arrogate to itself a power that has not been constitutionally vested in it?
• What harm (if any) would be caused by rendering an ear of “mutual respect and understanding” as the Supreme Court has requested, until they conclude their Constitutional duty under Article 125(1) and thereafter, proceed with the impeachment (if it must be done and there are clear grounds for same) under Article 107 along the constitutional guidelines and the law as propounded by the Supreme Court?

“Third parties” and Sri Lankan citizens

A quick response is demanded to the contention that only “third parties” have invoked the jurisdiction of Court, not the Chief Justice, and therefore the Courts must not intervene in the matter. Whilst even a 1st year law student may come up with several cogent arguments in response, such as the fundamentals of Public Interest Litigation (PIL), etc., I will limit mine to just a couple; primarily for the reason that some of whom were raising this argument also happen to be “learned friends” at the Bar (adorning parliamentary positions at present) to whom these arguments cannot be anything new, as we have all walked the same “judicial portals” at one time or another in our careers.

The Petitioner in the first matter that was argued (CA 358/12) was Dr. Jayampathi Wickramaratne, President’s Counsel, himself; arguably one of the leading constitutional lawyers this Republic had been fortunate to produce and appearing for him as Counsel was none other than S.L. Gunasekere, whose eminence and seniority at the Bar needs no repetition.

A simple cursory glance at the list of other petitioners in these connected petitions, all duty-conscious citizens of this Republic (who therefore hold the absolute sovereign power of this Republic), together with the array of President’s Counsel and other Counsel appearing for them begs the question, then are all these people “busy bodies” or “third parties” with nothing else to occupy their time with? Can we expect the Chief Justice, the highest judicial officer of this Republic to petition her own Courts “in person”? Are these arguments emanating after any careful legal consideration or for some other reason?

Leaving the sovereign citizens argument aside for a moment and addressing the interests of the senior lawyers who have become petitioners themselves in this clearly important constitutional matter; it may be useful information to note that “an Attorney at Law” is appointed pursuant to Rules adopted under Article 136(1)(g) of the Constitution, is very much a part of the “Judicial Organ” of government as an “Officer of Court” who owes an overriding duty to Court under Rule 50 for the due administration of justice; takes an oath upon admission under Rule 69 (similar to that taken by a member of parliament) in terms of the 4th schedule to the Constitution, to be “faithful to the Republic” and to “uphold and defend its Constitution”.

Therefore we must immediately cast aside whatever “coloured glass” that some of our own brethren in the Legislature appear to be looking through; these Attorneys are not in any manner agitating this issue as they have nothing better to occupy their professional time with, but are simply carrying out their bounden duty that they have sworn to protect and uphold on behalf of the people of this Republic who have placed them in that position.

It is sincerely hoped that at least the lawyers who have sworn that same oath in Hulftsdorp (presently occupying seats in Parliament) as indeed all others who have sworn a similar oath; would be guided by these higher principles and their conscience when they arrive at their decisions.

Finally, whichever “branch” we may belong to, if we do not immediately act (whether ‘Judicial’ or ‘Legislative’) in the best manner suited, as organs exercising the people’s sovereign powers for their best interest; I’m afraid we are leading the people and this Republic to a collision course that may not result in the securing their best interests as had been intended. It is apt, I thought, to quote those historic words set down in the Mahavamsa (as quoted subsequently in several judgments of the Supreme Court) whilst dealing with this subject of exercising the “people’s sovereign powers” in “public trust” as their custodians:

The Mahavamsa (68.8-13) - “…it does not become persons in our situation to live enjoying our own ease, and unmindful of the interests of the people…”