Constitutional culture in the British tradition
It must be said that in England, when the supremacy of Parliament was firmly established at the turn of the 17th century through an alliance of the lawyers and the judiciary, this was done to overcome the authority of the Monarch. An inevitable consequence of that was the entrenchment of the Independence of the Judiciary through the concept of the Separation of Powers. Even in regard to laws passed by Parliament thereafter, a convention that had been built into British Constitutional Law is not that the Judiciary cannot review legislation but that it will not. Such is the constitutional culture that invests the British legal tradition. These are matters that anyone who has even a nodding acquaintance with British constitutional history and law, as revealed by academic authorities such as S. A. de Smith, Hood Philips etc. in their writings, would be aware of.
Sovereign power of the people
In contrast, taking the Parliamentary history of Sri Lanka, after independence under the Soulbury Constitution through 1946 to 1948, parliamentary supremacy had never been established as the predominant characteristic of that Constitution. However, this concept came to be established under the 1972 Constitution when in Article 44, the National State Assembly (Parliament) was made the supreme instrument of state power.
Yet what is important to note is that this reasoning was unequivocally departed from by the present Constitution (1978) through the introduction of the concept of sovereign power of the people (Article 3). This was made a justifiable provision by virtue of Article 83, prompting the Supreme Court in reported cases to note that, unlike under the 1972 Constitution, there were limitations on the powers of Parliament. This meant in brief that the powers of Parliament were confined to the legislative power to pass laws, which clearly went against an argument that, the predominant characteristic of the present Constitution was “the Supremacy of Parliament”
The two orders of the courts
Taking this argument further in the practical context of the two orders of the Supreme Court and the Court of Appeal in issue, it must be said that there is nothing to prevent Parliament in the exercise of its legislative power, under Article 75 of the Constitution, to introduce a Bill, conferring power on the Speaker to constitute a Select Committee of Parliament to investigate and report on any alleged misbehaviour or incapacity of a Superior Court Judge. This is subject to such a Bill being determined by the Supreme Court as to its constitutionality, having regard necessarily to Article 4(c) of the Constitution. For that reason, the Supreme Court may well hold that a 2/3rd majority in Parliament as well as a referendum of the people would be required.
Relevantly, the Supreme Court in its aforesaid order determined that, “it is mandatory for the Parliament to provide by law the body competent to conduct the investigation contemplated by Article107 (3) …..” and that, “matters relating to proof being matters of law, also will have to be provided by law…..”
Standing Order 78A deficient in many respects
It must be noted in this context that Article 107(3) of the Constitution itself is silent as to the said body competent to conduct an investigation and report as contemplated by that Article. Therefore, it may be observed that the order of the Supreme Court, stands fully justified within the confines of the constitutional provisions in as much as a Select Committee appointed by the Speaker under a Standing Order (78A) does not measure up to basic conditions.
First, such a Select Committee could not be regarded as such a competent body. Secondly, the said Standing Order (in any event), has not provided for matters of proof for the Select Committee to adopt and act upon rendering the said Standing Order arbitrary, to say the least. Thirdly, (even though the Supreme Court has not explicitly referred to the same) the joint act of the Speaker and the Select Committee are obnoxious to Article 75 read with Article 76(1) of the Constitution.
Supreme Court’s exclusive power to interpret
Meanwhile, the view has been expressed by speakers on national television in Sri Lanka during the recent month, that, the words “...... or Standing Orders” have been rendered a dead letter by the said order of the Supreme Court. This view ignores not only the fact that, it is the Supreme Court that is constitutionally conferred with power to interpret the Constitution (under Article 125 of the Constitution), but also the fact that the Court has given specific reasons for the interpretation it has handed down.
However the question may legitimately be asked then, have the framers of the Constitution used the words “or Standing Orders” in vain? For the reason that, Article 107(3) refers not only to law but also, in the alternative to Standing Orders as well. To answer that question it is necessary to once again look at the terms of Article 107(3) which decrees 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 the 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 representative.
Omission of the legislature
As noted initially, Article 107(3) does not refer to and is silent as to the forum to provide “for all matters relating to the presentation …… etc.” Once a proper body competent to conduct the investigation under 107(3) is created, that body may then be in a position to provide for “all matters relating to the presentation ……… etc” That body must necessarily therefore be first established by law (Act of Parliament) which may well be even a Select Committee of Parliament which would then be competent to make Standing Orders in regard to the matters referred to in Article 107(3).
That omission of the legislature in regard to reference to the forum in Article 107(3) of the Constitution has been supplied by the Supreme Court, (as the apex court of the country) under Article 125 in interpreting the Constitution by holding that this must be done by law and not by Standing Orders Thus, the words “…..or Standing Orders’ in Article 107(3) have also not been used in vain.
To recap, what was sought to be done by Parliament could not have been done by a Standing Order, which in any event did not conform to the terms of Article 107(3) of the Constitution. And Article 107(3) being silent on the body that must be established to investigate and report on a Superior Court judge’s alleged misbehaviour or incapacity, such a body must be established by law and not by Standing Order. Matters relating to proof by such a body must also be provided by law and not by a Standing Order, which in any event, the impugned Standing Order 78(A) itself does not provide for.
Certainly, as practising lawyers, there are judgments that go against us. We may not agree with such judgments entirely. Yet, we are obliged to advice our clients in pursuance of our forensic duty to say, that nothing more can be done when the apex court determines on some matter.
An unenviable grundnorm for Sri Lanka
The consequent Court of Appeal judgment upon the Supreme Court ruling was that it had no alternative but to issue a writ of certiorari to quash the finding and/or the decision or the Report of the said Select Committee. Rightly, the jurisdiction of the Court of Appeal vested under Article 140 was held not to be subject to express ouster by the Constitution through a reading of the relevant constitutional articles.
In conclusion and reflecting on the unenviable controversies that this country’s law and judicial institutions have been subjected to in recent months, it may be said that though a Constitution is supposed to be the grundnorm (ie; basic norm or order), had Hans Kelsen been asked to comment on the current relevance of that theory, he would have been compelled to concede that he had gone drastically wrong somewhere in propounding his theory, at least in regard to the Sri Lankan situation.