President should notify Parliament and not editors, says UNP

The main Opposition United National Party said yesterday President Mahinda Rajapaksa should inform Parliament and not newspaper editors about how he plans to act with regard to the resolution of impeachment against Chief Justice Shirani Bandaranayake.

Issuing a statement yesterday, the UNP said that it had been reported in the media that the President had claimed he would appoint an independent committee to review the decision made by the Parliamentary Select Committee probing the impeachment motion against the Chief Justice at a breakfast meeting with the newspaper editors.

President Rajapaksa first announced the setting up of an independent review panel at the opening of the new building of the Chartered Accountants of Sri Lanka in Colombo, last Tuesday (11).

Referring to President Rajapaksa as Commander-in-Chief of the Armed Forces and Editor-in-Chief of the Republic, the main Opposition said it was Parliament that was responsible for inquiring into the matters stated in the Resolution under Article 107 against Chief Justice Bandaranayake.

“Therefore, the President should inform Parliament and not the newspaper editors of how he proposes to act in regard to the resolution,” the statement said.

It added that there was no Constitutional provision for a review of the PSC once a resolution of impeachment is passed by Parliament. “Once a resolution is passed under Article 107, the President has no option but to remove the Judge in relation to whom the resolution has been passed. He has no discretion on the matter. If he does not, he has violated the Constitution and has to be impeached under Article 38 (2) of the Constitution,” the statement explained.

The UNP added that since the PSC had only found the Chief Justice guilty on three charges and admitted that the committee did not have the benefit of Bandaranayake’s evidence, the PSC had contravened Article 12 of the Constitution that guarantees equal protection of the law to all citizens and had not followed due procedure, a second inquiry was necessary to ascertain the veracity of the charges in the motion.

The following is the full text of the UNP statement:

The Media on 14 December 2012 has reported a meeting between President Rajapaksa and the Newspaper Editors wherein the President has stated that he will have an independent inquiry after conclusion of the Parliamentary process.

The UNP wishes to make the following observations:

Parliament is responsible for inquiring into the matters stated in the Resolution under Article 107 against Chief Justice Shirani Bandaranayake. Therefore the President should inform Parliament and not the newspaper editors of how he proposes to act in regard to the Resolution. Instead, he made this statement at a meeting of newspaper Editors. This is nothing more than a meeting called by the Commander-in-Chief of the Armed Forces and the Editor-in-Chief of the Republic President Mahinda Rajapaksa to give instructions to the media. When the Government members of the now defunct Parliamentary Select Committee came in to the room, the media should have left the meeting. Instead, they proceeded to have breakfast with the President.

Once a resolution is passed under Article 107, the President has no option but to remove the Judge in relation to whom the resolution has been passed. He has no discretion on the matter. If he does not, he has violated the Constitution and has to be impeached under Article 38 (2) of the Constitution. Neither is there legal provision for the Parliament to hold an inquiry at that stage. The proposed inquiry is against the Latimer House Principles which envisages an inquiry before Parliament passes a resolution.

After the 2003 Abuja Commonwealth Heads of Government Conference, countries such as the United Kingdom (Constitutional Reform Act 2005) and New Zealand (Judicial Conduct Commission and Judicial Conduct Panel Act 2004) brought in legislation to fall in line with the principles enunciated there.

In the United Kingdom and the United States of America where impeachment proceedings to remove judges originated, there are two Chambers. First, the House of Commons (UK) and the House of Representatives (USA) initiates the process and prepares the articles of impeachment The Second Chamber, the House of Lords (UK) and the US Senate then carry out the trial. Our Parliament is a unicameral Parliament, i.e. it consists of one chamber. In 1984 there were two Select Committees on Chief Justice Neville Samarakoon. The first Select Committee went into the facts. The findings of the Select Committee were as follows:

“Your Committee is of opinion that although the statements referred to above may not bring the entire Supreme Court into disrepute, they are not befitting the holder of the Office of the Chief Justice.”

The Second Select Committee went into the question whether Chief Justice Neville Samarakoon’s conduct amounted to ‘misbehaviour’ under Article 107. They held;

Every breach of convention does not necessarily amount to proved misbehaviour. The standard of proof required is very high. In all the circumstances of this case, while this Committee cannot but condemn this speech, we cannot come to the conclusion that the Hon. Chief Justice is guilty of proved misbehaviour.

In this instance, there has only been one Select Committee which only accepted charges 1, 4, and 5 of the Resolution. The Select Committee has also admitted that they did not have the benefit of Chief Justice Shirani Bandaranayake’s evidence. The Chief Justice withdrew from the Select Committee proceedings as they failed to follow proper procedure and adhere to Article 12 of the Constitution which guarantees equal treatment before the law to every citizen. In this background a Second Inquiry is necessary before a Resolution is presented to Parliament.

Standing Order 78A is silent on the procedure to be followed by the House after the Select Committee Report is tabled. The necessary legal provisions can be made if the Cabinet adopts as an urgent Bill the Private Members Bill titled ‘Removal of Judges of the Superior Courts’ presented by Wijeyadasa Rajapakshe, MP. This can be passed in Parliament on 8 January 2013 without debate making way for the second inquiry.

Therefore, President Rajapaksa and his Government must act within the law according to the Latimer House Principles and hold the inquiry as stated above.