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Re: Point of view on Parliamentary Series No. 187
I am respectfully submitting a point of view following the conversation with Your Excellency on the 7th of January, 2013 on Volume 1 and 2 of the Report of the Select Committee appointed to investigate and report to Parliament on the charges stated in the resolution placed in the order paper of Parliament on 6th No
vember, 2012 for the removal of the Hon. Dr. (Mrs.) Shirani A. Bandaranayake from the office of the Chief Justice.
The process has generated wide public interest. My submission is merely as a citizen, made with malice to none and based on a notion that our Constitution and its organs are sacred. The underlying hope is that our society lays weight on justification, deliberation, and rational consideration in arriving at important decisions.
Public utterances, debates and pronouncements have sought to inquire into the process and rules governing interventions to impeach the Hon. Chief Justice, into the objectivity and basis of reasoning found in the 2 Volumes of the Report, as well as the facts and the conclusions derived. The Report and its accompanying process attracted Judicial comment leading to arguments on the Right of the Courts to rule on actions of Parliament stemming from provisions of the Constitution. Parliament has now proceeded to debate the report to Impeach the Chief Justice notwithstanding the Writ issued by the Court of Appeal in case No.411/2012 on the validity of the Select Committee proceedings based on the interpretation of the Supreme Court of Article 107 of the Constitution in Reference No.3/2012 and CA (Writ) Application No.358/2012.
The Constitution, Parliament and impeachment of a judge – an analysis
Arrangement of the constitution
1.The arrangement of the Constitution reflects the separation of powers. It can be illustrated in the following manner.
Several lawyers and civil society organisations protesting outside the Supreme Court on Tuesday calling for the resignation of Chief Justice Mohan Peiris – Pic by Shehan Gunasekara
Powers of Parliament
3.Article 74 à Subject to the Provisions of the Constitution Parliament may by resolution or Standing Order provide for … (ii) the regulation of its business, preservation of order at its sittings and any other matter for which provision is required or authorised to be made by the Constitution.
4.Article 4 of the Constitution says that the judicial power of the people shall be exercised by Parliament through courts, tribunals, and institutions created and established or recognised by the Constitution or created and established by law except when it relates to Parliamentary privileges. This means;
a.Either the constitution must provide for the establishment or
b.A law must provide for the establishment of any entity exercising judicial powers.
What Parliament can or cannot do under Article 107
5.Article 107(3) says 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 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 representatives. (This means that the Constitution itself says to provide by law, although allowing provision by Standing Order for matters not requiring law)
6.When article 107(3) is read with Article 4, it shows that anything to do with the exercise of judicial functions (e.g. leading evidence) can only be done if there is a “law”. If not, it amounts to violation of article 4. Standing orders referred to in 107 can be used for procedures applicable to Parliament and its members and cannot be used to perform judicial functions. (I believe this is the interpretation that the Supreme Court gave)
7. Conclusion:
a.Has the Parliament got the power to go ahead with an impeachment motion? YES provided there is a LAW passed by parliament to that effect as required under Article 4
What is missing in the present Standing Orders?
8. Article 107(3) à Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such judge to appears and to be heard in person or by representatives.
9. This means, before the Parliament commence an impeachment process, it MUST PROVIDE for ALL MATTERS by Law (or Standing Orders). Constitution gives examples of a few of them; e.g. procedure for passing of such resolution, investigation and proof. Do the present standing orders provide for “ALL” matters? The answer is NO for the following reason.
Has Parliament made a choice not to have an investigation? à YES
10. Has the Supreme Court judgement taken away the power of Parliament? à NO
WHY?
b.Parliament by choosing to pass Standing Orders and not a LAW has decided that it will not perform the judicial part of the impeachment respecting article 4 of the Constitution. That means, as the law and Standing Orders stand now, Parliament has decided that it will allow another institution established by law (e.g. a Court) to deal with the “proved” part and only consider it afterwards under SO 78A.
c.Parliament had the choice to do all provided they pass a law and declare Parliament to be the entity to carry out the judicial part of the impeachment inquiry. It should then ensure conformity with ordinary judicial process.
d.Parliament can even now pass a law and recommence the impeachment and use the PSC report as a preliminary fact finding report.
11. Has the PSC complied with SO 78A as it stands now?
The allegations against the Chief Justice
Out of 14 charges the Parliamentary Select Committee found the Chief Justice guilty of charges 1, 4 and 5. Which were:
Charge 1 - the Chief Justice purchased the apartment in the names of two individuals, that the Chief Justice wrongfully took over the hearing of a case so that she could purchase using a power of attorney a housing unit in the Trillium Residencies in the name of her sister and her brother in law. The findings of the PSC are - The Trillium apartments could not be sold without permission of Court; Case was wrongly taken before a bench presided by Chief Justice; Discount of Rs. 1.6 Million.
The report in page 1047 introduces a letter dated 3.5.2010, from the Watawala Commission, listing units permitted by Court to be sold including apartment No.2C/F2/P4 purchased on behalf of the Sister and Brother in Law within a price of 5% of the sale price indicated for the apartments. The Deed of Transfer was initialed by the Chairman of Trillium Residencies who in page 1558 refers to removal from all Ceylinco companies, a bar on being a Director of Ceylinco and return of shares by Court which he reports was subsequently suspended by the same Court. Given this record of exchange of communication in Court, it would have been prudent for the CJ to have avoided any direct or indirect contact with the Chairman of Trillium Residencies to avoid allegations of preference owing to discounts provided in the purchase in expectation of favours by the Chairman of Trillium Residencies seen in the questions posed by members of the PSC. A role if any in negotiating the transaction by the CJ is absent in the present narrative in the Report. In any event, the CJ did not get a special discount. Everyone who purchased apartments got an across the board discount of 5% as indicated in the letter as page 1047 of the report.
Charge number 4 - Not declaring in the annual declaration of assets and liabilities that should be submitted by a judicial officer the details of more than twenty bank accounts maintained in various banks including nine accounts bearing numbers 106450013024, 101000046737, 100002001360, 100001014772, 100002001967, 100101001275, 100110000338, 100121001797 and 100124000238 in the aforesaid branch of NDB Bank.
Details of the 20 accounts are unavailable in the Report. Documents from NDB provide the following details:
Account No. 100002001360 a Special Current Account created by NDB Bank PLC for the purpose of routing investments migrated by NDB Bank to Account No. 10111002058.
Account 100002001967 a Special Current Account created by NDB Bank PLC migrated by NDB Bank to Account No. 10110002778.
Account 100121001797 migrated by NDB Bank to Account No. 106450000542.
Account No. 106110012694 opened on 26th April 2012 not declared in the declaration of assets and liabilities as at 31/03/2012.
Account No. 106110012128 opened on 20th April 2012 not declared in the declaration of assets and liabilities as at 31/03/2012.
Account No. 100124000238 migrated by NDB Bank to Account No. 106450013024, opened on 6th April 2011.
Account No. 1001110002058 is the migrated Account No. 100002001360 referred to under Account No. 1 above.
Account No. 100100039660 has been migrated by NDB Bank to Account No. 106000134433.
The Report at page 1552 has this Q&A:
Q: The Chairman: I want to clarify one thing. Considering the accounts in each year, before the 30th or 31st March, suddenly the account shows the zero balance and after that particular date, it again reappears with certain moneys. I do not know whether it is deposited in repo account or used for buying Treasury Bonds or whatever. I do not think that you can answer for the reason. The only thing is that it shows there are zero accounts more frequently when it reaches 31st March.
A: Mr Russel de Mel: This is a special Current Account. Although the balance becomes zero, the amount invested has to be in some treasury bills or bonds in favour of her name. The investment is there although the account becomes zero
The Report at page 1553 has this Q&A.
Q: The Hon. Nimal Siripala de Silva: Since you are a very seasoned Banker, how many people have about 20 accounts in your Bank? We do not want the names.
A: Mr Russel de Mel: We do not have off-the-hand record now. But, in this instance, if you ask about current accounts, we have three current accounts active. One is a normal Current account. There are two special current accounts. One special current account is in her name and the other special current account is a joint account with her spouse. In the circumstances, we had no hesitation because there were purposes for the two special current accounts and the normal current account to be operated.
The Report at page 476 gives the details of opening and closing dates of accounts.
The letter dated 30/11/2012 from Secretary to the President says that the declarations are not available for 2001 as Chief Justice.
In the absence of detailed submissions from the Lawyers for the CJ and evidence recorded in cross examination, I refrain from any opinion on the findings except the logic to be deduced from details extracted from the report. The current method of opening the declarations filled of assets and liabilities upon queries should become one of annual scrutiny by the designated repository to eliminate doubts and maintain accountability. It is on this basis that Counsel for the CJ argued that the total value of the holdings of the CJ is therefore reflected in the Asset Declaration although not necessarily in the form if a deposit in an account.)
Charge Number 5 - This charge is on the basis that the Chief Justice is disqualified from holding office in view of her husband being charged in the Magistrate Court and found guilty of misbehaviour on this charge. The Constitution permits removal only on the grounds of proven misbehaviour or incapacity of the judge
A troubling aspect which can affect any Judge and significantly in this instance the CJ is the public role of a spouse or family member which can give rise to perceptions compromising the persona of a Judge. In the absence of codified standards including due diligence pertaining to Judicial propriety, Judges are liable to face allegations such as have been levelled at the CJ on perceived acts of commission or omission by family members. The role and standards applied by the High Posts Committee too hence comes under scrutiny. The danger of this is that there is always the possibility that an adult child of a judge or relation could be implicated in a case (e.g. even a traffic offence) to force a judge to resign.
Concluding remarks
Three members of the Select Committee (Anura Bandaranaike, Leader of the Opposition, Sarath Muttetuwegama, M.P, Dinesh Gunawardena, M.P ) in 1984 looking into the impeachment of Chief Justice Neville Samarakoon, stated that they felt strongly that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court Judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose and urged the House to amend Standing Order 78A accordingly. There are four (4) further instances of attempts not carried forward to impeach Judges of the Supreme Court since 1984. Speaker Anura Bandaranaike in 2001 stated ‘Members of Parliament may give -their--mind to-the need to introduce fresh legislation or amend the existing standing orders regarding Motions of Impeachment against Judges of the Superior Courts. The Human Rights Committee in terms of the International Covenant on Civil & Political Rights a treaty to which Sri Lanka is a signatory has around 2003 expressed concern on the compatibility of the impeachment process with the scope and spirit of Article 14, since it would compromise the independence of the judiciary. Scores of Judges of the Court of Appeal and Supreme Court have taken oath of office under a flawed process for their dismissal under the 1978 Constitution. The Constitution allows for removal of a Judge for proved misbehavior. The Constitution required Parliament to provide for all matters in this connection, but it does so only through a Standing Order that ignores the requirement of proof (it talks about defence without mentioning prosecution, it talks about disproof without mentioning proof). We have yet to introduce the procedure to be followed as law. The collective price of the folly is found in the debates and procedure in the impeachment of Chief Justice Shirani Bandaranayake. In the case of Neville Samarakone’s impeachment he admitted to the statement and therefore the issue of a proper inquiry to “prove” the allegation did not arise.
Quite apart from procedural questions, public debates have intensified to street protests, utterances attracting Contempt actions in Court, questioning of the standing of the Legislature and the Judiciary before citizens and have opened up a conflict between two organs of the State. This provides no cause for citizens to rejoice.
The Counsel for the CJ had raised reservations about potential for bias by two members of the PSC due to cases which had been heard before the CJ which had not been held in their favour. Another member reports having publicly opposed her appointment as CJ whilst also being a depositer in Golden Key. Judge Weeramantry has said, ‘There cannot be a fair hearing unless a tribunal is totally and patently impartial…it is essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing to any conclusion on the matter’.
We have had stormy debates about the quality of Justice and our adherence to the Rule of Law. The individual persona and the Office of the incumbent CJ is injured with ramifications for her and the system the Office heads which is fundamental for every citizen as the final arbitrator on Law and Justice. Given this background I hope the arc of our history would remain bent towards justice in Sri Lanka. This would require intervention by the Executive Branch to hold the balance between conflicting claims, and to ensure that Justice is done and also seen to be done.
Yours respectfully,
Jeevan Thiagarajah
