Impeachment of the CJ: Did she get a fair trial?

By K.D.C. Kumarage

Some citizens including lawyers have filed petitions in the Court of Appeal seeking writs restraining the Parliamentary Select Committee (PSC) from inquiring into allegations mentioned in the impeachment motion submitted to parliament by some Member of Parliaments (MPs). The court of appeal has referred them to the Supreme Court (SC) since there is a Constitutional problem involved.

In the meantime, some Fundamental Rights (FR) cases have also being filed in the SC stating that the Standing Order 78 (A) violates FRs under various articles of constitution. Having considered these applications a panel of three judges of the SC has issued notices to the members of the PSC. And everyone knows now that the speaker has made an order to the effect that no court could issue process on the speaker or any committee appointed by him. However, the SC has decided to go ahead with the inquiry.



Neville Samarakoon impeachment inquiry

Let us take our memory back to the impeachment inquiry appointed by the speaker to impeach Neville Samarakoon the then Chief Justice (CJ). S. Nadesan QC who represented the respondent CJ took up a preliminary objection that standing order 78 (A) is ultra vires the Constitution and that the said select committee had no power to proceed with this inquiry because it violates article 4 (C) of the Constitution which stipulates that except in matters concerning Parliamentary privileges the judicial power of the people has to be exercised exclusively through the courts.

In its report at the conclusion of the inquiry a majority of members (five members) representing the Government in the PSC writing a separate report dealt with the objection taken up by Nadesan as follows.

While the members of the committee have certain reservations regarding the validity of Nadesan’s contentions particularly in view of the specific provision of Article 107 of the Constitution of the Democratic Socialist Republic of Sri Lanka, this committee feels that notwithstanding any objections it is duty bound to carry out the mandate given to it by Parliament according to the terms of reference specified. In carrying out this task the committee is fortified by the fact that the exercise of disciplinary power over the higher Judiciary in a large number of countries almost without exception is a right which has been exercised by the Parliament. Furthermore under the standing order 78(A) Parliament exercise its power in the fulfilment of its duty under Article 107(3) of the Constitution.

Although the majority report of the PSC has stated that the exercise of disciplinary power over the higher Judiciary in a large number of countries almost without exception is a right which has been exercised by Parliament, the majority report has failed to state that countries like India, Singapore and New Zealand amongst many others the Parliament appoints panels of inquiry consisting of Judges of the highest court of those countries and eminent jurists to hold such inquiry and to report back to Parliament. When the committee stated that it exercises powers under 78(A) which in the fulfilment of the Constitution is untenable in that Standing Orders of Parliament are not laws passed by Parliament and cannot be inconsistent with the provisions of the Constitution which is the supreme law of the country.

Submissions made by S. Nadesan Q.C. on behalf of Neville Samarakoon C.J. that “In a constitution such as that of our country, in which separation of powers is jealously protected, the Committee in seeking to go on with the inquiry as to whether or not Samarakoon was guilty of “proved misbehaviour,” was violating the provisions of Article 4(c) of the Constitution , which stipulates that except in matters concerning parliamentary privilege – the judicial power of the people shall be exercised by the courts.”

Findings of the separate report

What is more significant in the present context is findings of the separate report of the three Members of Parliament, of the Opposition namely, Sarath Muththettuwegama, Anura Bandaranaike, and Dinesh Gunawardane who happens to be a Cabinet Minister and the Leader of the House in the present Government.

Their separate report states: “Although Nadesan’s argument has considerable cogency they were unable to come to a definite conclusion on that matter. Therefore they urge H.E. the President to refer this matter to the Supreme Court for an authoritative opinion thereon – under Article 129(1) of the Constitution.”

Moreover the separate report goes onto state: “The signatories to this statement however feel that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a supreme court judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose. We therefore urge the House to amend Standing order 72A accordingly.”

It is not difficult to understand how MP Dinesh Gunawaradane who took up the said strong position against the Standing Order 78A in their separate report in the Neville Samarakoon impeachment inquiry did a completely somersault in the present impeachment inquiry against the incumbent Chief Justice.

It is important to look at the procedure stipulated in the Constitution to impeach the President of Sri Lanka. Under Article 38(c) of the Constitution once a resolution is passed by not less two -thirds of the whole number of members (including those not present) voting in its favour, the allegation or allegations contained in such resolution shall be referred by the Speaker to the Supreme Court for inquiry and report. It is common knowledge that the Supreme Court holds such inquiry observing all fair trial and due process guarantees applying accepted rules of evidence.

It will be pertinent to discuss the procedure adopted by India, Singapore and New Zealand, amongst other countries, in impeaching judges of the apex courts.



India

In India, The Judges Inquiry Act of 1968 provided for the impeachment of higher court judges. Provision of this section is read with Article 124(5) of the Indian Constitution. This was later developed further by the New Judicial Standards and Accountability Act 2012. It enables the Parliament to proceed with the resolution for the removal of the Supreme Court Judge only after the President of India has forwarded a report to the National Judicial Oversight Committee which comprises, a retired Chief Justice of India, a Judge of the Supreme Court, a Chief Justice of the High Court of the State, the Attorney General of India and an eminent member nominated by the President of India. The President of India holds no executive post unlike counterpart in Sri Lanka.

Once when the impeachment motion is submitted to the Parliament, the speaker of the Lokh Sabha refers the allegations to the above panel who will go through it and if they find the charges are not well founded they will inform the speaker accordingly and the matter ends there. If they find that one or more of the allegations merits inquiry they will hold a judicial inquiry guaranteeing all fair trail and due process rights to the responded Judge. At the end of the inquiry if they find that the charges are proved they will submit the report to the Speaker of the Lokh Saba. Thereafter the resolution for impeachment must be adopted by both houses of Parliament i.e. Lokh Saba and Raja Saba by a two third of MPs, including those not present.

In Singapore, a tribunal of not less than five members are appointed by the President at the request of the Prime Minister or the Chief Justice (Article 98(4) of the Constitution). The tribunal will consist of Judges of the Supreme Court or equivalent tribunals in Singapore or any other country of the Commonwealth if it appears expedient. In this tribunal too the respondent Judge is afforded every protection under the written law of the country, international law and the principles of natural justice in relation to fair trial and due process.



New Zealand

In New Zealand, under the Judicial Conduct Act, a commission is appointed by the Governor General on the recommendations of the House of Representatives. Before such appointment is made the Attorney General, who is also a Member of Parliament must consult the Chief Justice of New Zealand or the Highest Pusine Judge, if the respondent is the Chief Justice. The Commission shall request the Attorney General to appoint a panel of Judges The Attorney General in consultation with the Chief Justice appoint the three-member Judicial Conduct Panel (JCP), two from the Supreme Court or a retired judge of the Supreme Court or a Barrister or a Solicitor of Seven years Standing. The third member of the JCP will be a lay person.

Section 26 of the Act specifically states that the panel has and may exercise the said powers of the commission appointed under the Commission of Inquiry Act 1908. The panel follows the principles laid down in Section 26 of the Judicial Conduct Panel Act of 2006. The Attorney General has to appoint a special counsel to assist the Judicial Conduct Panel who acts impartially and in public interest. All fair trail guarantees are provided to the respondent Judge.

It is clear therefore from the above examples how fair, the impeachment procedure of Judges is under the respective legal systems.  As the great jurist John Rawls has stated: “Justice is fairness.” A politician according to him is one who cannot by his very nature “divorce his political interest from his judgement”. This truism of Rawls applies aptly to the seven members of the PSC. The ratio of appointing members of the PSC according to the party strength in the Parliament violates the principles of equality before the law. Ours is a parliament which always votes politically. It is impossible to expect a different attitude from them. In a Parliament which is totally subservient to the president none of the seven members will never vote against the wishes of the president.



Sri Lanka

In Sri Lanka where the jury system still prevails in criminal trials, the jurors are elected by a lottery. The accused person facing trial can object to any number of jurors on various grounds. But in the impeachment inquiry of the Chief Justice of Sri Lanka the majority of judges as well as jurors are the MPS of the governing coalition, whose verdicts are predictable beforehand.

It also must be remembered in this regard the voters in this country have not given a two-thirds majority to this Government. The Government mustered the so-called two-thirds majority in consequent to a highly-controversial judgement pronounced by a former Chief Justice of Sri Lanka by offering perks and bribes, granting indemnities from punishments from crimes, and exerting undue influence on the MPs of the Opposition.

Now the people in Sri Lanka as well as the world over are aware that the Chief Justice walked out of the PSC in protest of the hostile, biased and scurrilous conduct of the PSC. The Chief Justice has reiterates that she is innocent of all those alleged charges preferred against her and she is always prepared and willing to appear before any competent, independent, and impartial tribunal to prove her innocence. Her lawyers have stated according to media report that the Chairman of the PSC had stated that no oral evidence would be led to establish allegations and hence no opportunity of cross examination of such witnesses would be granted to respondent’s lawyers. It was evidenced to lawyers that the accepted natural law principle that “those who alleged must prove” has being shifted to the responded.

This is the first time in the history of our legal system that a person has been found guilty of very serious charges in violation of all norms of justice and fair play guarantees of fair trial and due process found in the principles of natural law, international law and written law which could be called ‘a conviction without an inquiry’.



Opposition views

John Amaratunga, one of the four MPs who sat in the PSC, told the Washington Post that the four of them walked out of the sittings of the committee because they could not be a party to an unfair process. He has stated further the Government members using their numerical majority rejected what they said were reasonable demands to establish a procedure for the inquiry and to give Dr. Bandaranayake an opportunity to cross examine the accusers and enough time to peruse the 300 documents relating to the case.

He further stated that too many of the accusers and judges in the case were from the same group – Government law makers, whereas in other countries such inquires were assigned to separate legal professionals appointed by Parliament. And that with no agreed procedure the inquiry was held in an ad hoc manner. He further stated that Government law makers treated Bandaranayake in an insulting and intimidating manner and their remarks clearly showed they already found her guilty.

The same newspaper reported that the US State Department spokesman Mark Toner as saying: “The US is deeply concerned about actions surrounding the impeachment trial and urges the Government and ensure due process. These latest developments are part of a disturbing deterioration of democratic norms in Sri Lanka including infringement of the independence of Judiciary.”

He called upon the Government to uphold the Rule of Law.

(The writer is an Attorney-at-Law and Convenor of Lawyers for Democracy – LfD.)