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Interdependence of the Judiciary and the Legislature

10 December 2012 07:26 pm - 0     - {{hitsCtrl.values.hits}}

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In Sri Lanka, sovereignty is in the people’s hands. It is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise. The sovereign people promulgated the Constitution and thus the Constitution becomes supreme and the three Organs; Parliament, Executive Presidency and Judiciary that are created by the sovereign People by their Constitution can only exercise their respective powers subject to and according to the provisions of the Constitution.
Parliament is bound to act subject to and according to the provisions of the Constitution. So do the other organs. However, the line of separation between Parliament and Judiciary is very thin and a blurring of their respective functions at the blend is inevitable.



No interference with Parliament.
No Court can pronounce how an Act should be passed in Parliament. No Court can interfere on any ground that the Act was not passed according to proper procedure or the bill has not received the majority of votes as there was error in counting the votes. That is the exclusive function of Parliament.

No court could interfere in its deliberations and conclusions. The validity of the proceedings in Parliament cannot be questioned by any court. Parliament provides Standing Orders to conduct its own affairs and no court has jurisdiction to decide their validity. Parliament can manage its own affairs according to the Standing Orders. Any breach of its Standing Orders can only be corrected by Parliament. When Parliament errs, its errors shall be corrected by Parliament itself. No court could make any pronouncement thereof. Ruling given by the Speaker even if it infringes any of the provisions of the Standing Orders can only be corrected by Parliament. How the Speaker conducts the proceedings in Parliament cannot be subjected to judicial scrutiny. Thus, Parliament becomes the absolute authority to manage its own affairs.
It is salutary that no Bench of the Supreme Court had ever made any attempt to interfere in the internal affairs of Parliament.



Standing Orders
Article 74 of the Constitution ordains that subject to the provisions of the Constitution, Parliament may provide Standing Orders inter-alia‘the regulations of its business, the preservation of order at its sittings and any other matter for which provision is required or authorized to be so made by the Constitution’.
Thus, it becomes so explicit that all Standing Orders, including 78A should be subject to the provisions of the Constitution No Standing Order, including 78A could have the effect of overriding, amending or suspending the operation of any of the provisions of the Constitution.



Parliament is bound by the Constitution to exercise its powers under 78A in the fulfilment of its duties under Article 107 (3).

What does Article 107 (3) state?

It states that Parliament shall by law or by Standing Orders provide (1) all matters relating to the presentation of address to remove the judges, (2) procedure for passing of the Resolution under Article 107 (2), (3) investigation, (4) proof of alleged misbehaviour or incapacity, (5) the right of such judge to appear and to be heard in person or by representative.

The written law, judge made law, the rule of law, the audi alteram parte, fair hearing and rule against bias had already been provided in abundance all such procedures that are envisaged under Article 107 (3).

A penetrated study of Article 107 (3) clearly manifests that notwithstanding all such procedures Constitution mandates that more entrenched procedures should be enunciated by further law or by Standing Orders to protect the dignity and honour of the independence of judiciary and the judges of the superior courts.
Protection is given to an accused by criminal procedure that when an accused is brought or appears before the court, the Magistrate can frame a charge if there is sufficient ground to proceed against the accused and not otherwise. The accused himself could bring to the notice of court and get the relief.

Upon charging an accused and before the conclusion of the trial, if there is no evidence to proceed with the Magistrate could discharge him at any previous stage of the case. These protections are given to an accused at a trial. He is given sufficient time to prepare his defence.

Proceedings can be instituted upon the knowledge or suspicion of a Magistrate in terms Section 136© of the Criminal Procedure Act. In that event, the accused is given unfettered freedom that his trial be heard by another Magistrate.

The framers of the Constitution thought it prudent not to allow the President to be impeached through a process of a Select Committee in terms of a Standing Order. By the Constitution itself, well entrenched and clear-cut clauses are incorporated in the Constitution to protect the dignity and honour of the President. The reasonable prudence speaks so loud that the same clear precedent should be followed in the case of removal of judges by law or by Standing Orders.
However, a meticulous examination of the Standing Order 78A would clearly demonstrate that it does not have the attributes of so much of procedures as postulated under 107 (3) to protect the dignity and honour of the independence of judiciary and the judges. The absence of such procedures under 78A denigrates the independence of judiciary and the dignity and honour of judges.




Rule of Law
Rule of Law is a living concept so engrained and permeating every branch of the law. It is repugnant to arbitrariness and capriciousness. It is the attribute of government according to law. No one is punishable except for breach of the law. The Rule of Law mandates that law should be equally administered without distinction. The Rule of Law provides flesh and blood to clothe the dry bones of the law.

It is settled principle that ‘no man, who is himself a party to proceedings or who has any interest in the result of the inquiry, is qualified to adjudicate in the proceedings’.




Bias
Bias vitiates all solemn proceedings. It is possible to lead evidence of bias before a court. It can be shown that the tribunal came to a wrong conclusion under dictation of another authority or by reference to a predetermined rule of policy without affording any consideration to the merits of his assertion.
A member of the tribunal should not have interest in the matter by identifying with one of the parties to the issue. A tribunal should be impartial and free from bias of any kind.




Attempt made to rectify 78A.
After the unsuccessful attempt to impeach Neville Samarakoon CJ in 1984 several organizations, such as CRM and many other UN human rights bodies, such as International Amnesty and reports of ICCPR made representations from time and again to change the procedure of removing Judges of the Superior Courts. The Government headed by President Chandrika made proposals for Constitutional Reform in October 1997 and in the Constitutional Bill in the year 2000, providing that in the case of a CJ for hearing and determination of the alleged misbehaviour or incapacity by a committee of three judges of the highest court of any Commonwealth Country and in the case of other judges of the superior courts by three judges of our country. Both proposals were made by the same political patty that wields power today. All have acquiesced to have the aforesaid procedure that is not found in 78A.

President Jayewardene who dreamt of fostering and preserving a just and free society introduced Standing Order No.78A on 04.04.1984, i.e. one day after the Impeachment Motion against the then Chief Justice Neville Samarakoon was entertained by the Speaker. 78A was framed devoid of all procedures known to this country for more than one century. He did not translate his lofty principles into action.

President Jayewardene had also brought before the Select Committee Justice Wimalaratrne and Justice Colin Thome on several scurrilous charges to remove than on the ground of alleged misbehaviour. All charges were proved to be baseless.

Article 75 states inter-alia that Parliament shall not make any law suspending the operation of the Constitution or any part thereof.

If the Government, irritated by the filing of many Fundamental Rights Applications challenging the legality of Standing Order 78A, brings law to suspend the operation of certain Articles in Chapter III dealing with Fundamental Rights and if a concerned citizen petitions the Supreme Court, challenging the legality of the said law under and in terms provisions of Article 121 (1) and in that context, Parliament is constitutionally prevented from proceeding with the passing of the said law for the period of three weeks from the date of the Petition. So, what is the indecent hurry to proceed with the inquiry under 78A without rectifying the mischief created by 78A?



Interpretation and opinion by Supreme Court.
Under and in terms of Article 125 (1), the Supreme Court shall have sole and exclusive jurisdiction to determine any question relating to the interpretation of the Constitution.

The Supreme Court has the exclusive jurisdiction for the protection of fundamental rights. When the present CJ was appointed as a Judge of the Supreme Court there were many Fundamental Rights Applications challenging her appointment. A Bench presided by Justice Mark Fernando granted leave to proceed and later he dismissed the Application on merits. In the same way, if the Supreme Court comes to the finding that Sanding Order 78A has the effect of law, then it may end all agitations against 78A.

Subject to the Constitution the Supreme Court shall, in terms of Article 120, have sole and exclusive jurisdiction to determine any question as to whether any Bill or any provision thereof is inconsistent with the Constitution.

However, save and except under Articles 120, 121 and 122, the Supreme Court shall not have the jurisdiction to inquire into the constitutionality or any bill or its due compliance with legislative process – Article 124. No Bench of the Supreme Court did ever trespass this barrier.

Article 118 (f) gives the Supreme Court to hear cases in respect of any breach of the privileges of Parliament. Article 131 states that the Supreme Court shall have according to the law, power to take cognizance of and punish any person for the breach of the privileges of Parliament. Likewise, there are many Articles in the Constitution that warrant interpretation by Supreme Court.

It is the exclusive jurisdiction of the Supreme Court to interpret the Constitution and give opinion on any question in terms of Article 129 (1). The Supreme Court is rightly and correctly exercising its constitutional function subject to and according to the provisions of the Constitution.

Parliament is constitutionally bound to honour such interpretation and opinion. If Parliament refuses to honour, there is no constitutional or legal process by which Supreme Court could require compliance.




Men of courage
Prime Minister Jayewardene said in the Constituent Assembly “We know that ultimately whatever rules and words you may put into a Constitution the working of it lies with the men and women who work it. You may have all the precautions to make the Judiciary independent, but unless the men who man the judiciary are men of courage, men of wisdom, the judiciary will never be independent.

We have had such men in the past. We have such men in the present. Now, the object of all of us is to see that in the future too, in the written Constitution, we create the conditions for such men to live, thrive and prosper. If they feel that they will be subject to pressures from the government forces or from those elected to Parliament, they will not be able to perform their duty”.

The Chief Justice, being a lady, a mother, not being treated with dignity, walks with conviction and intrepidity against onslaught attacks of character assassination and scurrilous hand-outs. She does not for a moment feel pusillanimous but feels unable to perform her defence according to law. In keeping with the spirit of what is said in the Constituent Assembly, conditions should be created for the Chief Justice to live, thrive and prosper in her defence according to law.

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