No Independent Panel without amending the Constitution and the Standing Orders

No doubt, a powerful and stable executive system is established by the 1978 Constitution. Under this Constitution, President is not answerable to Parliament though he is responsible to Parliament: he appoints the Prime Minister and Secretary to him and to the Ministers without consulting any person. In the appointment of Ministers the Constitution does not make it mandatory that he should consult the Prime Minister.

A President under this Constitution cannot be easily shaken by pressures from within the Parliament or outside. The system envisages a President and Parliament working in harmony. Even a hostile Parliament could be humbled by a strong-willed and astute President. The Impeachment Motion against President Premadasa was foiled and the UNP Government of Ranil Wickremesinghe was dissolved. Both tender proof as to how a strong-willed President could silence the Parliament and undermine the independence of Parliament by strong executive dominance.

The Constitution is supreme and it ordains the legislative power, the executive power and the judicial power of the People be exercised according to and subject to the Constitution. The interpretation and opinion given by the Supreme Court would bind all persons, including the President and the Speaker and the Constitution mandates them to honour by necessary compliance.   

There is no dispute in regard to the power of the Parliament to remove the Judges of the superior courts. In this regard, Articles 74 and 107 (3) read with Standing Orders 78A (1), (2), (3), (4), (5) and (6) set out guidelines as to how the allegations of proved misconduct could be investigated by the PSC, for the Judge to appear and to be heard, and to adduce evidence, oral or documentary, in disproof of the allegations made against the Judge and the right of the Judge to make a written statement of defence.




The attributes of the above guidelines do not confer blanket power to PSC to observe different standards at will other than observing the principles of natural justice, procedural justice, fair hearing, and to evaluate materials according to the established principles of the rule of law to reach that the Judge is guilty of proved misconduct or not. Thus, even the ill-conceived Standing Order 78A provides amply for fair hearing though limited in scope and content. The process of investigation by PSC does not form part of the legislative process. The entire process of the PSC had to be carried out according to the principles of natural justice. Fair hearing is part of its process. The attributes of fair hearing are manifold.

Complaints were consistently made on the nature of charges framed, the composition of the PSC and that no fair hearing was afforded to the CJ and that she was subjected to degrading treatment by some of the Members of the PSC.

Even the illustrious former Supreme Court Judge of Sri Lanka, a high profile author of internationally recognized authoritative treatises in law and other varied subjects, one time Vice President of the International Court of Justice who as its member and Vice President delivered illuminating judgments accepted by international communities and an eminent international jurist had observed several grounds that went to the very root of vitiating the proceedings of the PSC and its Report.                
                    
The President’s sudden impulse to examine the legal efficacy of the outcome of the PSC Report by an Independent Panel may be to diffuse the situation or due to a genuine desire to troubleshoot the calamity that has already been created by the ill-conceived Impeachment Resolution. His intention to appoint an Independent Panel manifests his indirect admission that PSC proceeded to investigate on defective charges and that no fair hearing was afforded to the Chief Justice.

An unbiased examination of the relevant Articles of the Constitution and the Standing Orders would clearly unfold that no additional step of appointment of an Independent Panel by the President is provided to meet any situation. Thus, the President cannot on his own free will appoint any Committee to examine the outcome of the PSC Report or to interpose his decision upon the findings of the PSC. If he does so, he would be usurping the powers and functions of the Parliament, violating the much articulated supremacy of Parliament. The appointment of a Select Committee is the sole and exclusive function of the Speaker.  

The President can only translate his good intention through Parliament by amending the relevant provisions of the Constitution and the Standing Orders and causing the Speaker to appoint such a Panel.

Article 74 (1) provides for what purposes Parliament could provide Standing Orders:
For the election and retirement of the Speaker, the Deputy Speaker and the Deputy Chairman of Committees, and
For the regulation of it businesses, the presentation of order at its sittings and any other matter for which provision is required or authorized to be so made by the Constitution.       





Article 107 (2) deals with the Resolution how an Address of Parliament could be originated to remove the Judges of the Superior Courts.
Article 107 (3) sets out the procedure by which the Judges could be removed – “Parliament 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 the proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative”.

It is crystal clear from the above that the President cannot appoint an Independent Panel, bypassing Parliament and Speaker.

All media have on 9TH December 2012 reported that PSC has on 8TH December 2012 delivered its Report to the Speaker, finding guilty inter-alia  on three charges.  The very act of the PSC delivering its Report to the Speaker had effectively sealed any interference from any person, including the President, except by way of amending the provisions of the Constitution and the Standing Orders.              
                                         
When President Jayawardene designed the Constitution he made the Parliament an extension of the powers of the executive President but he, inspired by the immutable republican principles of representative democracy promulgated the Independence of the Judiciary ‘as the intangible heritage that guarantees the dignity and wellbeing of succeeding generations of the People of Sri Lanka’ and conferred the sole and exclusive jurisdiction on the Supreme Court inter-alia  in the matters of fundamental rights, constitutionality of Bills, interpretation of the provisions of the Constitution and giving opinion to the President and the Speaker on matters of public importance. The decisions of the Supreme Court on these matters have binding force. All, including the President and the Speaker are constitutionally bound to honour and give compliance to them.

The Constitution confers on the Supreme Court a sacred and democratic task to exercisea  check on the President and Parliament on the arbitrary use of their respective powers to prevent the nation from sliding into a dictatorial regime. Attempts are being orchestrated to undermine the independence of the judiciary by executive dominance.

The Chairman, Hon. Lalith Athulathmudali, of the PSC appointed to investigate allegations against Hon. Neville Samarakoon CJ, observed thus: “This is what I want to say. We are very conscious of the very onerous responsibility and we are also conscious of the fact that this is not only for this matter but this could become a precedent for the future conduct of Parliament”. The Committee decided that the standard of proof required was very high. They gave the then CJ fair hearing and treated him courteously in keeping with the dignity of his office. Those good precedents were not at all observed by the present PSC.

Many of the protagonists for fairing are not opponents of the government. Their role is misunderstood due to politicization of the issues involved. In any event, all discourses for and against of all theories and principles would come to a pretty pass and push the nation into a political quagmire.
If independence of the  judiciary is undermined, the rule of law would fail: many would be encouraged to take the law into their hands. In that event, terror would reign: anarchy would become the order of the day.        

Time has come for all of us to rise up from all prejudices and protect the independence of the judiciary. It is desirable that the President and the CJ should sink all their differences and meet face to face through third party facilitation and evolve an honourable solution to end the impasse without rendering political vultures to smear the peace of the country.