Submissions by K. Kanag – Isvaran PC before Court in Chandra J’s case against impeachment process

Synopsis of the submissions made by K. Kanagisvaran P.C. before the Supreme Court on 13 December 2012 in the petition filed by Chandra Jayaratne seeking a Writ and Constitutional Interpretation regarding the impeachment process by the PSC.

My Lords, it is respectfully submitted, that we are at a critical juncture in the history of our nation.

If I may borrow a phrase from history, “the Barbarians are at the gate of the Temple of Justice”. You let them in, they will destroy all that is sacred to us and install in the altar of Justice false prophets.

The Preamble to the Constitution describes the Constitution: “As the Supreme Law of the Democratic Socialist Republic of Sri Lanka.”

The Constitution is Suprema lex, the paramount law of the land, and there is no organ of State above or beyond it.

Be it the Executive or the Legislature or the Judiciary, it derives its authority from the Constitution and it has to act within the limits of its authority.

The doctrine of the supremacy of the Constitution means: “Neither of the three constitutionally separate organs of State can, according to the basic scheme of our Constitution today, leap outside the boundaries of its own constitutionality assigned sphere or orbit of authority into that of the other. This is the logical and natural meaning of the principle of Supremacy of the Constitution”. (See: Smt. Indira Nehru Gandhi v Raj Narain (1976) 2 SCR 347@539.)

No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution.

The Supreme Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits.

It is for the Supreme Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law.

The basic assumption underlying the views expressed above is that each of the three organs of the State – the Executive, the Legislature and the Judiciary – has its own orbit of authority and operation. It must be left free by the other organs to operate within that sphere. It is not for one of the three organs of State either to correct or to point an accusing finger at the other merely because it thinks that some error has been committed by the other when acting within the limits of its own powers.

But, if either the Executive or the Legislature exceeds the scope of its powers, it places itself in the region where the effects of that excess should be capable of removal by the Judiciary which ought to redress the wrong done when properly brought up before it.  A scrupulous adherence to this scheme is necessary for the smooth operation of our Constitutional mechanisms of checks and balances.

It implies due respect for and confidence in each organ of our Republic by the other two.

My Lords, the constitutional function of Your Lordship’s Court is to be the final judge of the constitutionality of all acts purported to be done under the authority of the Constitution and to ensure that the constitutionally circumscribed powers entrusted to the other organs of the State are scrupulously discharged and that they do not transgress the limitations of their own constitutionally  circumscribed powers by trespassing into what is properly the domain of the Judiciary, the other constitutional organ.

When a question arises whether an authority under the Constitution has acted within limits of its powers or exceeded it, it is my respectful submission that it can certainly be decided by the Supreme Court, because every constitutional question concerns the allocation and exercise governmental power.

Indeed, I respectfully submit, that it would be the constitutional obligation of the Supreme Court to do so.

It is for the Supreme Court to uphold the constitutional values and to enforce the constitutional limitations.

Where there is manifestly unauthorised exercise of power under the constitution, it is the duty of the Supreme Court to intervene.

It intervenes only to say what the limits are and whether the limits on the power conferred by the Constitution on a particular organ of State have been observed or there is a transgression of such limits.  

Indeed it is the constitutional obligation and duty of the Supreme Court to do so.

The wisdom of man has not yet been able to conceive of a government incapable of mischief. Because in the last analysis a great deal must depend on the wisdom and honesty, integrity and character of those who are in charge of the Legislature and the enlightened and alert public opinion.

My Lords, the Constitutional scheme indicates that it is only the Members of Parliament acting jointly in the specified minimum number who can bring about the initiation of the procedure for removal of a judge, all other modes and persons being excluded.

Because of the provisions of Article 4(c) the machinery for investigation and proof must necessarily be outside Parliament and not within it.

Proof which involves a discussion of the conduct of the Judge must be by a body which is outside the Parliament.

The word ‘proved’ also denotes proof in the manner understood in our legal system – and in harmony with Article 13(5) – which guarantees the presumption of innocence.

A finding that some fact is proved must, therefore, be the result of a judicial process. That machinery has to be outside Parliament and not within it.

If this be so, it is a clear pointer that the Parliament no role to play till misconduct or incapacity is found proved.

Parliament comes in the picture only when a finding is reached by that machinery outside Parliament, that the alleged misbehaviour has been proved.

This reflects the constitutional philosophy of both the judicial and legislative elements of the process of removal.

The ultimate authority remains with the Parliament in the sense that even if the “judicial forum” records a finding that the judge is guilty of the charges, it is yet open to the Parliament to decide not to permit an address to the President for removal. (The act of removal by the President is an Executive act.)

But upon a finding that the judge is not guilty, the legislative element in the process of removal has no further option.

Therefore, the Legislature cannot arrogate to itself through Standing Order 78A – which is not “law” within the meaning of the Constitution, the right to exercise “judicial power’ of the People in violation of Article 4 (c).  The constitutional scheme, seeks to achieve a judicious blend of the legislative and judicial process for the removal of judges of the superior Courts in a civilised manner reconciling the concept of judicial accountability of judges and the values of judicial independence.

It is therefore respectfully submitted that the proper forum

“…before which the allegations are to be proved, the mode of proof, the burden of proof, the standard of proof  etc., of any alleged misbehaviour or incapacity in addition to the matters relating to the investigation of the alleged misbehaviour or incapacity?”  

should be a forum that is created and established by law as mandated by Article 4 (c) of the Constitution, namely, a forum that can constitutionally exercise the judicial power of the People.