Legality of Parliamentary Standing Order 78A relating to removal of superior court judges

By Saliya Edirisinghe

LL.B Attorney-at-Law

Introduction

This paper considers whether Standing Order 78A which provides inter alia for a Select Committee consisting of members of Parliament to inquire into and determine guilt or otherwise of alleged misbehaviour or incapacity of a superior court judge1 is constitutional. This is a discussion based purely on principles of law, and does not concern itself with the present attempted impeachment of the Chief Justice.

 Parliament’s power to make Standing Orders

Parliament is granted power to make ‘Standing Orders’ by Article 74 of the Constitution. However, in granting this power, Article 74 has placed a limitation on Parliament’s power to make ‘Standing Orders’ in that they can only be made “Subject to the provisions of the Constitution”. Therefore, Standing Orders cannot be inconsistent with the Constitution. Reproduced below are the relevant provisions of this Article

74 (1)    “Subject to the provisions of the Constitution, Parliament may by resolution or Standing Order provide for –

(i)    …..

(ii)    the regulation of its business, the preservation of order at its sittings and any other matter for which provision is required or authorised to be so made by the Constitution.

    (2)    …..”

Standing Order 78A was made on 04 April 1984 and thus is a Standing Order made under the present Constitution. Therefore, in terms of Article 74 of the Constitution, Standing Order 78A cannot be inconsistent with any of the provisions of the Constitution, and if so, that particular provision of the Standing Order is a nullity. It may also be noted that Standing Orders are not “law” as defined in the Constitution.2

Natural justice as a fundamental part of the justice system

Natural justice derives its legitimacy and acceptance from concepts of fairness and comprises the twin principles of “rule against bias” (nemo iudex in causa sua) and the “right to a fair hearing” (audi alteram partem).

The Supreme Court in the exercise of its fundamental rights jurisdiction has entrenched “natural justice” as one of the “protections” of the law guaranteed by Article 12(1) of the Constitution, and that is now well established.3 In addition, the superior courts in the exercise of other jurisdictions have also firmly established natural justice as an essential part of the justice system.4 It is also significant that natural justice applies to all decisions where the rights of persons are affected irrespective of whether they are judicial, quasi-judicial or merely administrative.5

Article 107(2) of the Constitution provides for the removal of a superior court judge, and the provisions state

“Every such Judge [Superior Court judge] shall hold office during good behaviour, and 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 (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity:

Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity” (explanation within brackets added).

The issue relevant for the present discussion is whether any of the provisions in Standing Order 78A are inconsistent with Article 107(2) of the Constitution on the grounds of violation of the “rule against bias”.

Are provisions in Standing Order 78A inconsistent with Article 107(2) of the Constitution due to the violation of the rule against bias?

Before examining this issue, it is necessary to summarise the legal provisions relevant to the removal of a superior court judge.

Removal process of a superior court judge

In terms of Article 107(2) of the Constitution, the pre-requisite to the removal of a superior court judge by the President is an address of Parliament supported by a majority of the members of Parliament that there has been “proved” misbehaviour or incapacity.

The process of removal of a judge commences when the Speaker of Parliament receives a resolution signed by not less than one-third of the members of Parliament for an address of Parliament regarding allegations of misbehaviour or incapacity and which resolution “sets out full particulars of the alleged misbehaviour or incapacity”.6

Thereafter, although Article 107(3) of the Constitution provides that “Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative”, Parliament has not passed a “law” but a “Standing Order”, namely, “Standing Order 78A” to deal with these matters.

“Standing Order 78A” consists of nine different provisions numbered (1) to (9).

The second of the nine provisions, namely “Standing Order 78A(2)”, provides for a Committee consisting of not less seven members of Parliament (Select Committee) to “investigate and report to Parliament on the allegation of misbehaviour or incapacity set out in the resolution”.

The investigation commences with the Select Committee transmitting to the Judge the details of the allegations and requiring the Judge to make a written statement of defence. The Judge is given a right to appear and be heard by the Select Committee by person or by representative and to adduce oral or documentary evidence in disproof of the allegations. The Select Committee is empowered to examine persons, papers and records relating to the allegations.

The Select Committee at the conclusion of the investigation is required to “report its findings together with the minutes of evidence taken before it to Parliament and may make a special report of any matters which it may think fit to bring to the notice of Parliament”7 (emphasis added). The Select Committee proceedings can be made public only if there has been a finding of guilt on any of the charges against such Judge.8

It is implicit in the above provisions that the Select Committee is required to arrive at a finding of guilt or otherwise at the conclusion of the investigation into the alleged misbehaviour or incapacity of the Judge.

Once the Select Committee sends its report, minutes of evidence etc to Parliament, members of Parliament are required to consider these materials and arrive at a determination whether the allegations have been proved or not and thereafter record their determinations at a vote taken in Parliament – vide Article 107(2) of the Constitution.

There is the high authority of Justice Mark Fernando in Dissanayake v Kaleel9 that members of Parliament when voting under Article 107(2) of the Constitution to remove a judge on the basis of proved misbehaviour or incapacity exercise quasi-judicial powers.

As pointed out above, natural justice is a part of the law of Sri Lanka and also entrenched in Article 12(1) of the Constitution. The principles of natural justice apply whenever a person exercises legal authority to determine the right of a person, and it matters not if the nature of the power exercised is judicial, quasi-judicial or administrative.

Now let us examine whether certain provisions in “Standing Order 78A” read together with Article 107(2) of the Constitution violate the “rule against bias”. If there is a violation, then those offending provisions in Standing Order 78A are a nullity, because as pointed out earlier, Standing Orders cannot be inconsistent with the provisions of the Constitution.

Are certain provisions in Standing Order 78A a nullity?

In terms of Article 107(2) of the Constitution, a superior court judge can be removed by the President only if a majority of members of Parliament vote that there has been “proved misbehaviour or incapacity”.

Before members of Parliament vote regarding the removal of a superior court judge, individual members have to arrive at a finding independently by themselves if the allegations of misbehaviour and incapacity have been proved or not. The material upon which individual members of Parliament determine whether the alleged misbehaviour or incapacity has been proved or not is the report of the Select Committee containing its findings and the minutes of evidence and any other matters the Select Committee wishes to bring to the notice of Parliament.10       

As noted above, The Select Committee at the conclusion of the investigation is required to report its findings to Parliament and the Select Committee proceedings can be made public only if there has been a finding of guilt on any of the charges against such Judge

When members of Parliament consider the above mentioned material submitted to it by the Select Committee to determine whether the charges of misbehaviour or incapacity have been proved or not, the members of Parliament who were in the Select Committee and who arrived at a finding of guilt or otherwise in such Select Committee will not be exercising an impartial mind since they have already arrived at a finding one way or the other in regard to the alleged charges against the judge.

It is desirable even at the risk of repetition to remind ourselves that “a person having legal authority to determine a question affecting the rights of individuals is, by necessary implication, required to observe the principles of Natural Justice when exercising that authority, and if he fails to do so, his purported decision is a nullity.11

Therefore, Standing Order 78A(2) read with Standing Orders 78A(6)&(8) makes those members of Parliament that constituted the Select Committee (at least seven members) ineligible to perform their constitutional functions prescribed in Article 107(2) of the Constitution on the grounds of violation of the “rule against bias” which is a principle of natural justice. In these circumstances, it is submitted that Standing Order 78A(2) is a nullity since it is inconsistent with Article 107(2) of the Constitution.

It is true that Article 107(3) 12 states that Parliament shall by law or Standing Orders provide for all matters relating to the presentation of an address of Parliament to the President for the removal of a judge including the procedure for “the investigation of and proof of the alleged misbehaviour or incapacity”. To avoid provisions in Standing Orders being inconsistent with Article 107(2) on the grounds of violation of the “rule against bias”, provision should have been made in the Standing Orders for the body tasked with “the investigation of and proof of the alleged misbehaviour or incapacity” to be comprised of persons other than members of Parliament.

Footnotes

1 Chief Justice and the President of the Court of Appeal and other judges of the Supreme Court and the Court of Appeal.

2 Article 170 of the Constitution –‘ “law” means any Act of Parliament, and any law enacted by any legislature at any time prior to the commencement of the Constitution and includes an Order in Council’.

3 Amerasinghe v Board of Directors, Co-operative Wholesale Establishment and Ors (1998) 1 SriLR 367, 371 “ As observed by Fernando J. in Dissanayake v. Kaleel at 184, “An expansive rather than a restrictive interpretation of the protection afforded by the principles of natural justice is demanded by the equality provisions in Article 12 of the Constitution; fairness lies at the root of equality and equal protection”; Abeyrante v Janatha Fertilizer Enterprises Ltd & Ors [2003] 1 SriLR 391, 395 “Natural Justice is now built into our law and provides a fair admin­istrative procedure”; Neidra Fernando v Ceylon Tourist Board and Others [2002] 2 SriLR169, 182 citing with approval the dicta of Lord Denning in Metropolitan Properties Ltd v. Lannon 1968 3 ALL ER 304 “…the Court look at the impression that would be given to other people. Even if he was impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit”.

4 Lanka Loha Holdings (Pvt) Ltd v The Attorney General [2002] 3 SriLR 29, 36. “Even in situations where express provisions have not been made for the observance of natural Justice by a tribunal there is an obligation on the part of the Statutory Tribunal to follow the rules of natural justice when making determinations which affects the rights of individuals.”; Lalith Deshapriya v Captain Weerakoon and Ors [2004] 2 SriLR 314, 321 “What is most disturbing to this Court is the flagrant violation by the 1st respondent of the maxim nemo judex in causa sua potest. This is a rule of natural justice that prevents a person suspected of being biased from deciding a matter. That maxim literally means that no man shall be a judge in his own cause ”; Lalith Deshapriya v Captain Weerakoon and Ors [2004] 2 SriLR 314, 322 “ In the opinion of this Court, the entire proceedings conducted by the 1st respondent are in violation of the two fundamental principles of natural justice noted above. In the circumstances, the Court finds that the entire proceedings before the 1st respondent are a nullity and should be quashed…”; Justice Mark Fernando in Dissanayake v Kaleel [1993] 2 SriLR 135, 181 cited with approval the view expressed by Lord Diplock in A.G. v. Ryan that a person having legal authority to determine a question affecting the rights of individuals is, by necessary implication, required to observe the principles of Natural Justice when exercising that authority, and if he fails to do so, his purported decision is a nullity.

5 Lanka Loha Holdings (Pvt) Ltd v The Attorney General [2002] 3 SriLR 29, 35 “Observance of principles of natural justice is something basic and fundamental to our system of justice when making decisions which are prejudicial to the interests of all individuals, whether those decisions were of judicial or quasi judicial nature or made by an administrative tribunal”; Justice Mark Fernando in Dissanayake v Kaleel1993 2 SriLR 135, 181 cited with approval the view expressed by Lord Denning, M.R. in R v. Gaming Board for G.B that the heresy that the principles of natural justice only apply to judicial proceedings, and not to administrative proceedings, was scotched in Ridge v. Baldwin.

6 Proviso to Article 107(2) of the Constitution.

7 Standing Order 78A(6).

8 Standing Order 78A(8) “All proceedings connected with the investigation by the Select Committee appointed under paragraph (3)(sic) of this Order shall not be made public unless and until a finding of guilt on any of the charges against such Judge is reported to Parliament by such Select Committee”.

9 [1993] 2 SriLR 135, 172,173.

10 Standing Order 78A(6).

11 Supra n 4.

12 Supra p 3.