By Nihal Sri Ameresekere - F.C.A., F.C.M.A., C.M.A., C.G.M.A., C.F.E.
Emotional sentiments have been widely expressed by various segments of society, including pontificating statements issued by international agencies, admittedly without any comprehension or knowledge of the real facts involved. Surprisingly, this also includes earnest pleadings made by religious leaders, who however curiously do not so intercede on behalf of the hapless poor, who are arraigned before Courts of Law, but later acquitted, as innocent and not being guilty.
The foregoing perhaps have been fuelled by arguments adduced in several quarters, that Parliament may by Standing Orders provide only for what is specifically stipulated in Article 74 of the Constitution, and that a Parliamentary Select Committee, appointed under Standing Orders cannot exercise judicial power, on the basis that, as per Article 4(c), read with Article 3 of the Constitution, that judicial power of the people shall have to be exercised only through Courts, Tribunals and Institutions created and established by law. Nevertheless, the scope and nature of such ‘judicial power’ has not been defined in the Constitution.
It is on such premise, that it had been adduced that Standing Orders under Article 107(3) of the Constitution, cannot usurp the exercise of judicial power, and that the exercise of such undefined judicial power by Parliament can only be in relation to matters re – privileges, immunities and powers of Parliament and of its Members, where judicial power can be exercised directly by Parliament according to law, as per Article 4(c) of the Constitution.
Thus Article 107(3) of the Constitution has laid down an express power, limited only to the procedure of removal of a Judge of the Superior Courts, and such Article 107(3) of the Constitution cannot be rendered meaningless and a fiction or to be a mere mirage in the desert by the foregoing arguments adduced on the constitutional provisions in Article 74, read with Article 4(c) of the Constitution. The Supreme Court has even given life and meaning to Articles 27 and 28 of the Constitution, which are not justiciable, by pronouncing in Judgments, that they come to life and force, when being interpreted together with provisions of other Articles of the Constitution, and that otherwise in the first instance there was no purpose and meaning for such Articles to have been in the Constitution.
Ordinarily, an appointor of a person is vested with inherent right to remove such a person appointed by him. In this instance, though a Judge is appointed by the President, the power to remove a Judge of the Superior Courts is restricted to the extent provided for by the foregoing constitutional procedure, which necessarily has to be complied with, to remove a Judge of the Superior Courts. Such constitutional procedure cannot be rendered a nullity, tantamounting to the suspension of such procedure, expressly laid down in Article 107(3), read with Article 74(1) of the Constitution, stipulating that the said Article 74 is subject to the provisions of the Constitution, which therefore is subject to the operation of Article 107(3) of the Constitution.
A Judge of the Superior Courts having assumed office upon taking oath, under the existing Constitution, having been well and truly aware of the foregoing constitutional procedure in the very Constitution under which such Judge of the Superior Courts took oath to assume office, cannot later be heard to say, that the foregoing constitutional procedure is inapplicable and/or unacceptable and/or unconstitutional. If such procedure was unacceptable, then should not a Judge of Superior Courts have instantly declined to have accepted such office under the aforesaid procedure for removal laid down in the Constitution ?
In fact, Article 132 of the Constitution has specifically provided for the Chief Justice, on his own Motion, or on a request made by two or more Judges of the Superior Courts, to cause a matter, if the question involved is in the opinion of the Chief Justice, is one of general and public importance, then to direct that the said matter be heard by a Bench comprising five or more Judges of the Supreme Court for a determination thereon. No doubt, as adduced there could be much merit that it would have been more desirable for such an inquiry to be conducted by judicial peers, as prevalent in certain other countries.
Hence, if there had been any doubt, whatsoever, on the constitutionality of the procedure for the removal of a Judge of the Superior Courts, then the foregoing procedure stipulated in the Constitution, which had been in existence since 1984, could have been so directed by the Chief Justice, immediately upon having assumed office, or requested for by any other two Judges of the Superior Courts, who deemed such matter, as warranting to have been determined upon by a Fuller Bench of Supreme Court, to have done so; thereby raising the question, as why so belatedly now, at the stage of enforcement of the power vested in Parliament under and in terms of Article 107(3) of the Constitution ?
In like manner as Article 107(3) of the Constitution pertaining to Judges of the Superior Courts, Article 114 of the Constitution empowers the Judicial Service Commission, established under Article 112 of the Constitution, to exercise disciplinary control over other Judicial Officers, below the rank of a Judge of the Superior Courts, and to conduct inquiries into Charges against them, and if found guilty, to even dismiss them. Is this also not constitutional procedure in the nature of exercising judicial power as stipulated for the removal of a Judge below the rank of a Judge of the Superior Courts? Similarly, procedure for the removal of a Judge of the Superior Courts is stipulated in Article 107(3) of the Constitution to be exercised by the Legislature, itself. This is the prevalent reality!
Likewise, Article 56 of the Constitution has established the Public Service Commission, which in terms of Article 57, read with Article 58 of the Constitution, is empowered to deal with categories of Public Officers, including disciplinary control over them, and to conduct inquiries into Charges against them, and if found guilty, to even dismiss them. Is this not also a procedure for the exercise of power of a judicial nature? Furthermore, the Establishment Code Chapter XLVIII lays down the Rules of Disciplinary Procedure, inter-alia, for the conduct of inquiries and/or investigations into the conduct of Public Officers, who are charged sheeted, and if found guilty, to suspend, interdict or dismiss them, referred to as ‘Departmental Inquiries’. Is this also not procedure for the exercise of power of a judicial nature?
The foregoing time tested procedures have been constitutionally and administratively established for disciplinary control over Judicial Officers and Public Officers, including for their dismissal, where warranted. Likewise as aforesaid, under Article 107(3) of the Constitution Parliament has been vested with power to deal with the disciplinary control and dismissal of Judges of the Superior Courts. Hence what is the difference, and why this intriguing, misinterpretation and discrimination with a hue and cry, whilst the aforesaid constitutionally established procedures have been accepted in other quarters, without any demur ?
It should also be borne in mind, that Criminal Trials before a Jury, even in murder cases, are decided upon by a Jury, comprising of ordinary citizens, and not Judicial Officers. The Judge delivers Judgment, on the findings and verdict of the Jury. In the foregoing circumstances, how can one maintain the untenable argument, that power in the nature of judicial power can be exercised only within the ambit of Article 4(c) of the Constitution?
(The writer is an Associate Member, American Bar Association Member, International Association of Anti-Corruption Authorities)
Nihal Sri seems to forget that in all the other instances where non-judicial officers make determinations mentoned by him, there is an appeal process which is adjudicated by the judiciary.
Bandara Monday, 03 December 2012 10:34 AM
The question is about a fair trial. If any other officer is not satisfied with the decision s/he could appeal in courts in front of an independent judge/jury. Fair trial should be right of any citizen. You cannot assume Parliament to be a jury since it is politically motivated and it does not represent individual opinions. For example, if you're in the government you're inclined to vote in favour of impeachment even if your concience says otherwise.
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