When the donkey tried to bark!

The Constitutional principle of ‘Separation of Powers’

Of the donkey attempting the dog’s job

Following on our Polisocionomic dialogue on current matters of a socio-political/economic interest, thoughts run to those carefree days at Colombo (where the mind was permitted to roam unimpeded), to the second floor of the new Arts Faculty buildings where there stood a relatively small but active ‘unit’ for students of media and journalism.

Head of this Unit, the much loved Prof. JB (later to be conferred a Deshamanya) in his own witty and inimitable style has published a series of writings titled “wisdom of the folk”; one of which exposes the unfortunate plight of the donkey who wouldn’t let the dog mind his barking functions (better told in Sinhalese – balla ge wedei buruwa bhara ganna yaama)!

In that same Faculty we read extensive essays on the science of politics; Machiavelli’s ‘Prince’ who was taught that statecraft was an accumulation of ‘power,’ a name for this power – ‘sovereignty’; the principle expounded by Baron Montesquieu that this sovereignty must remain separated between the Legislature, Executive and Judiciary for good governance; that their concentration in one or more would create a dictatorial regime.

We also read of contrasting views by constitutionalists like Prof. A.V. Dicey who analysed attempts by monarchies to curtail people’s power to make laws and how the people overcame that by vesting ‘supremacy’ in a law-making body rejecting such royal prerogative.

Constitution is supreme

In Sri Lanka the Constitution is supreme – three organs of State operate on par: The sovereign power of this Republic is firmly reposed in its people and is inalienable, as guaranteed by Article 3 of the Constitution; there is no sovereign king or queen exercising any prerogative over our power to rule ourselves.

By promulgating for ourselves our second Republican (1978) Constitution, we the people do not recognise or tolerate any other source of power or authority over our supremacy!

If you compare the United Kingdom for instance, where there is a sovereign authority represented by the Queen, their system of governance contemplates a ‘superiority of the legislative process,’ in order that the people’s power to make laws will not be hindered by Royal Prerogative.

Such legislative supremacy is distinguished from countries like ours where a ‘written Constitution’ imposes limits on each organ; as such there is no ‘supremacy of the Legislature’ in this Republic and only the Constitution that the people have framed to govern them is supreme!

Legislature, Executive and Judiciary

Even a simple reading of the Constitution (which I vigorously encourage to every likeminded citizen) amply demonstrate that we have adopted the principle of “separating” those powers amongst three separate and distinct organs of state, the Legislature, Executive and Judiciary in terms of Article 4 thereof; so entrusting for a periodic time span these divided powers to be exercised in ‘public trust’ in due regard to the Rule of Law and a Democratic Process inter alia.

No single such institution is either superior or inferior to one another and must remain as such for us to be benefitted by good governance.

The Lexicon Encyclopaedic Law Dictionary defines these three powers as follows:

•  Legislative – the organ of government which makes law
• Executive – the branch of the government entrusted with the enforcement of Laws
• Judiciary – a department of government which construes and applies the law

These three areas of operation of the people’s sovereign power have been clearly defined and separated under Article 4 (a), (b) and (c) of the Constitution; ensuring a system of ‘checks and balances’ as between them.

Article 107 is a clear example of one such ‘check and balance’ where by ‘Executive action’ a possible abuse of ‘judicial power’ is arrested. The concept presupposes an invasion by one department of the sphere of another and for its own protection and to maintain governmental equilibrium, ‘checks’ the other by exercising powers having some of the inherent characteristics of the other.

The ‘judicial power’ of the Sri Lankan

Article 4 (c) of the Constitution sets out how a Sri Lankan may be subject to a ‘judicial process’ to judge his/her innocence or guilt. It requires the Legislature to enact a system of laws for the due enforcement of the people’s Judicial Power, through courts, tribunals and institutions; which must be specifically created and established or recognised by the Constitution, or created and established by law.

The Executive or Legislature may not encroach on those judicial processes, which protection must necessarily be also available to Her Ladyship the Chief Justice; after all, she is also a citizen of this Republic and entitled to the same legal protection.

There is one exception to Article 4(c) and that is where the Legislature (Parliament) is permitted to decide on its own matters of privileges, immunities and powers; that is provided for good reason, in order to maintain its independence from the other two organs. However Article 107 as regards impeaching a judge cannot be construed by any stretch of hypothesis to be any such matter of ‘privilege, power or immunity’ of Members of Parliament.

A judge of the superior courts is appointed by the President and shall hold office during good behaviour, and shall not be removed except by an order of the President made under Article 107 of the Constitution; thus the appointment and removal of a Chief Justice is an ‘Executive act,’ which is clearly subject to judicial review; whether under Article 126 (Fundamental Rights jurisdiction of the Supreme Court) or under Article 140 (Writ Jurisdiction of the Court of Appeal).

Following on this argument even the actions of the Speaker in carrying out such ‘Executive/administrative’ action during the motions/process of such impeachment must also necessarily be subjected to that same process of judicial review. The important distinction is that these powers are clearly not within the ‘Legislative’ (or law-making) powers of the Republic.

Standing Order 78A

To impeach a judge the Constitution demands [at Article 107(3)] that Parliament must provide for a procedure either by enacting laws or framing standing orders; the latter of which has been done, which is the presently disputed Standing Order No. 78(A). What is important is that no law (nor indeed a subordinate procedure like Standing Orders) can be inconsistent with the Constitution; that is ‘supreme’ in our Republic. We must look at Standing Order 78A in this light:

•  It is also a constitutional principle that ‘every person shall be presumed innocent until he is proven guilty’ before a competent Court, according to the due process of law as recognised by Article 13(6) of the Constitution. Article 13 (3) stipulates that such a person charged shall be entitled to be heard, in person or by an attorney-at-law at a fair trial by a competent Court – does this process conform to these standards?
• It contemplates a non-judicial institution [under A 4(c)] embarking upon a judicial process – is this Constitutional? What happens to ‘separation of powers’?
• It may very well turn out that some members of the Legislature who framed the allegations will also become ‘judges’ – what happens to the legal principle of nemo iudex in sua causa (that no man should be judge in his own cause)?
• Article 107 (2) must necessarily be preceded by such a lawful hearing where the alleged misbehaviour must be proved – has it been so proved?

Thus clearly, these Standing Orders are not in conformity with the Constitution, thus rendering them (and any actions based on them) unlawful and ultra vires the Constitution.

How do you impeach a judge ‘lawfully’?

There are very cogent arguments on the factual matrix, as to the ‘timing’ of this motion as well as what appears now from the subsequent defence assumed by Her Ladyship; as to whether in fact the ‘motives’ behind the impeachment are a furtherance of the ‘judicial will’ of the people, or more an interest of the present regime to consolidate and accumulate power to itself.

These questions will naturally be answered over the effluxion of time as material unravels itself, but on the law itself; if indeed a judge is to be impeached, then what is the correct procedure? Clearly an impeachment under Article 107 is meant as a ‘check and balance’ by the Executive over what could be an abuse of judicial power by a judge.

As we have no precedent of the process ever having been completed, and this being the first occasion these rules may very well be tested, it is important to learn from history and from the rest of the world; so that we get the process right and don’t make a laughing stock of the sovereign Sri Lankan citizen!

Impeachment attempts and arguments

In or around September 1984 a similar process commenced against the then Chief Justice Neville Samarakoon, during which these same arguments as regards the unconstitutionality and illegality of the process were strenuously advanced; however it never culminated in an impeachment as His Lordship retired.

Then in or around June 2001 another similar process commenced against Chief Justice Sarath N. Silva, PC where this question was placed before the Supreme Court for consideration and in granting leave to proceed and an interim order, their Lordships also saw sufficient merit in the arguments that here was an unlawful attempt to alienate/oust the judicial power of the people:

“We have given our careful consideration to the submissions of counsel for the petitioners and the pleadings filed by the petitioners in these three applications. Upon a consideration of the material placed before this Court and the submissions of the learned counsel it would appear that the matter raised by counsel for the petitioners involved the purported exercise of judicial power by the legislature. This question in our view is of paramount importance which is fit and proper for review by the Supreme Court.”

However these attempts too ended up with a dissolving of Parliament and therefore no conclusive end was reached either way.

Global examples

In this backdrop we must then see where else in the region, Commonwealth or the world these systems work and how they operate.

A cursory study points out very clearly that the above legal argument is accurate; that it is only ‘a judicial panel’ that can sit in judgment over a judge, and such strict procedure has been introduced purely to maintain the independence of the Judiciary which is a necessary and imperative element to uphold the rule of law.

India – A judge of the Supreme Court can be removed on the ground of proved misbehaviour or incapacity. However the President’s power is exercisable only after investigation by an impartial tribunal.

Singapore – If the Prime Minister or Chief Justice after consulting the Prime Minister, represents to the President that a Judge of the Supreme Court ought to be removed for misbehaviour or inability, the President must appoint a tribunal and refer the representation to it, and then, on the recommendation of the tribunal remove the Judge from the office;

France – Once appointed, judges serve for life and cannot be removed without specific disciplinary proceedings conducted strictly under due process

Japan – Judges shall not be removed except by public impeachment unless judicially declared mentally or physically incompetent. Also no disciplinary action shall be administered by any executive organ or agency

Importance of ‘listening’ to the Lankan citizen

If indeed it is the citizen that is sovereign and such power that is supreme, it must necessarily follow that any organ of State must listen to what they are saying! It has to be a stringent condition precedent to exercising ‘people’s power,’ surely!

We have noted several parts of our society (as indeed others internationally) expressing serious concerns on this issue. The Bar Association of Sri Lanka has passed unanimous resolution against these attempts; the most venerable Chief Prelates of the four Nikayayas in a joint statement have expressed their serious concerns; the Rt. Rev. Catholic Bishops and other religious leaders have condemned it; other civil society organisations have expressed grave concern; internationally the USA, Europe, UN and others have all expressed similar views against it; then why are we not listening and/or being heard?

It is only a matter of time that these very serious Constitutional questions will be placed before the proper institution exercising people’s judicial power for its verdict; before Courts of Law. However, should we go there and risk a ‘Constitutional situation’ where the sovereign Sri Lankan citizen is placed in such a predicament with his/her own superior sovereign power?