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Impeachment: SC judgment modest and cautious
View(s):A response to Chandra Jayarathne v Anura Priyadharshana Yapa MP and Others (SC Ref 3/2012, CA Writ App 358/2012)
By Dinesha Samararatne
Chief Justice Bandaranayake’s counsel K. Neelakandan explaining a point to journalists after the Court of Appeal on Jan 3 read out the Supreme Court ruling that the PSC has no legal validity to probe the impeachment motion against the CJ.
The Supreme Court has determined that removal of appellate court judges in Sri Lanka can only be by procedure established by law and law alone (p 24). In this short response I will attempt to argue that the conclusion arrived at by the Court is correct but I will also attempt to point out that the Court has (perhaps deliberately) avoided addressing certain fundamental constitutional issues which in fact could have further strengthened the conclusion that the Court had arrived at. This is a brief analysis and ought not to be considered as a detailed assessment of the determination.
The primary argument adopted by the Court is that only a law could provide for a procedure for an investigation that precedes a decision as to whether a judge is guilty of misbehaviour or incapacity. Court considers the security of tenure of a judge to be a constitutional right and accordingly argues that only an institution established by law could make a lawful determination on that right. It is stated that Standing Orders, in comparison, are only rules for the conduct of parliamentary matters. The Court makes the additional observation that the right of the relevant judge to be heard during the proceedings and the selection and appointment of the body which ought to conduct the investigation should also be provided for by law.
It has been well established in democratic societies that only a competent judicial body has the legitimacy to make determinations on the rights of individuals. The independence of the judiciary, the particular nature of the proceedings before them are two reasons due to which such a view has become commonplace. The Supreme Court is not making a particularly novel argument in this regard. What is more interesting is what the Court does not expressly address, and that is the selective interpretation the Court chooses to adopt in reading Article 107 (3) of the Constitution.
Article 107 (3) explicitly states that Parliament shall by law or by Standing Order provide for… 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 representatives.
The plain reading of Article 107(3) leaves no doubt as to the choice available. The procedure can be provided for through law or by standing order. The Court does not explain directly the basis on which they interpret this phrase to mean only by law. In fact, the conclusion of the Court in this determination leads to the deletion of the reference to Standing Orders, in Article 107(3).
Rather than arguing openly and directly as to why the Court wants to arrive at such a conclusion, the Court seems to have adopted a more subtle strategy of leaving it to its readership to connect the dots through the references made to several other substantive concepts in the judgement.
I will consider some of those concepts/arguments below in an attempt to demonstrate the broader and richer sources from which the Court may have drawn from in reaching its conclusion.
Court’s authority in interpreting the Constitution
One of the first issues raised before Court is whether it has the authority to interpret the Constitution in the context of the specific litigation. For instance, it was argued that there ought to be a dispute before the original court which could be resolved through reference to the Supreme Court for a constitutional interpretation. After due consideration of previous judgments and through a progressive reading of the Constitution, Court concludes that its authority to entertain requests for interpretations of the Constitution have no specific restrictions. It further observes that even a lower court on its own could make such a request from the Supreme Court.
This argument in effect is an assertion of the authority of the Supreme Court as the final arbiter of the meaning(s) to be attributed to the Constitution and also as to the authority to determine the legality of the exercise of authority under or through the law. However, this assertion too is not particularly creative or novel but is an already well-established principle in contemporary democratic societies.
Removal of appellate judiciary
The Attorney-General argues that the concern of judicial bias (real or perceived) and that of conflict of interest between organs of government ought to preclude the Court from providing a constitutional interpretation in this particular matter. At least from the perspective of the general public, this does seem like a convincing argument that undermines the legitimacy of the final conclusion arrived at by the Court.
The initial response of the Court is to rely on a literal reading of Articles 125 and 107. The Court states that nothing in either of those provisions prevents them from exercising judicial review in relation to the inquiry and removal of appellate judiciary. That argument, however, is problematic in terms of the method employed. The Court deliberately rejects the literal reading of the Constitution in arriving at its overall conclusion in this determination but chooses to rely on a literal reading in defending its authority in arriving at such a conclusion.
The Court could have relied on the general and exclusive role of the judiciary in a democratic society, in defending the availability of judicial review in this matter. Interestingly, the Court does make references to that role of the judiciary, but does so in the sense of making closing (and) general observations at the end of the determination. It is also interesting that the Court chooses to quote extensively from another determination, In Re the Nineteenth Amendment to the Constitution [2002] 3 Sri LR 85, rather than articulate those points on its own. Elsewhere it also quotes extensively from the case of Visuvalingam v Liyanage [1983] 1 Sri LR 203. Those extracts refer to several significant concepts that indirectly justify the availability of judicial review regarding the removal of appellate judges and in order to consider them in some detail, I will discuss them separately below.
Separation and balance of public power
The Court after citing the two authorities argues that the removal procedure requires the participation of both the Parliament and the President and therefore requires also the consensus from both those organs of government. Such a measure, Court argues will ensure that public power will be exercised by each organ for the purposes for which such power has been vested with the Parliament and the President i.e. the benefit of the People. While this argument is yet another established and well accepted one, it alone does not provide an adequate explanation for the conclusion of the overall judgment — which is that the removal procedure can only be established by law.
One possible argument that could be made in favour of the Court’s conclusion is to contend that ‘law’ could (arguably) be a more democratic, transparent and accountable form of policy development and implementation. For instance, even in Sri Lanka where judicial review of legislation is not possible, a law can be challenged for its unconstitutionality before it becomes law. Therefore, in terms of the medium of regulation, law would be a more progressive medium as opposed to Standing Orders, in preserving the balance of power between the three organs of government.
Independence of the judiciary:
Social Contract
The determination of the Court states in unequivocal terms that the independence of the judiciary is a prerequisite for democratic governance. The Court points to the preamble of the Constitution which states that FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and THE INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the dignity and well being of succeeding generations of the People of SRI LANKA (p 15). Court also relies extensively on the comments made in the Visuvalingam case to argue that independence of the judiciary is an ‘immutable republican principle.’ However, yet again, the Court stops short of making its own definitive pronouncement on the relevance of the independence of the judiciary to the matter at hand.
Looking at the sources cited and the conclusion arrived at however, it is possible to deduce that the Court is indirectly reminding its readership that independence of the judiciary is a non-negotiable aspect of the social contract in Sri Lankan society. Through reference to well-known judicial authorities in Sri Lankan jurisprudence it is also probable that the Court is reminding us that this is a judicial opinion that has been stated and re-stated through different decisions.
Sovereignty
No direct statements or observations are made by Court on the question of sovereignty, which is a fundamental issue that arises in interpreting Article 107 of the Constitution. The extract from the Nineteenth Amendment determination however clearly indicates that sovereignty lies in the People and that all public power can only be exercised for the benefit of the People. The extracts relied on by the Court also suggest that the rule of law and the independence of the judiciary are the primary means by which the benefit for the People can be guaranteed.
Concept of public trust or the State as a fiduciary
The judicial philosophy underlying the determination, then, seems to be that the state, i.e. the Executive, President and the Judiciary, are in a position of responsibility towards its People. The only purpose of those organs of government is to act for the benefit of the People. The sovereignty that has been entrusted to those organs is in that sense is shared.
Conclusion
This determination of the Supreme Court is modest and cautious in its general style but definitive and clear in its conclusion. Conceptually the determination seems rather bare. It seems as if the Court has preferred to rely on the work of previous courts rather than say it in their own words. However, much is said indirectly. Concepts and principles essential for a democratic society have been defended in a quiet and indirect manner.
Perhaps, the Court in its wisdom, thought it best to adopt this tone of moderation, softness and deference.
The writer is lecturer in law at the Faculty of Law of the University of Colombo
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