PSC and Judicial scrutiny

Standing Order 78A, comes under purview of judicial review

By C. V. Vivekananthan-Attorney-at-law

In 1997, a Committee for the Centre of the Independence of Judges and Lawyers chaired by Lord Goodhart of UK, Bhagwati, former Chief Justice of India and Attorney Phineas Mojapelo of South Africa, observed with regard to Standing Order 78A, “We think it is very unsatisfactory for the inquiry into the alleged misconduct or incapacity of a senior judge to be carried out by a Parliamentary Select Committee (PSC) acting under Parliamentary Standing Orders. Such an inquiry is plainly a judicial process. We recommend that Article 107 (3) of the Constitution be replaced by a provision requiring investigation and proof of alleged misbehaviour or incapacity to be carried out by an appropriate judicial body”.

It is notable that the Constitution obligates the decisions of PSC, appointed under Standing Order 78A, to come under the purview of judicial review.
Sri Lanka became a signatory to ICCPR. Upon ratification Sri Lanka is obliged to enact national legislation to comply with the international obligation. The Government, though many attempts were made, failed to remedy the fatal flaw, crept in the Standing Order 78A. However, the Government has taken care to apprise the international communities through its periodic reports sent to the Human Rights Committee that the decisions of the Select Committee, appointed under Standing Order 78A, would attract judicial scrutiny.

Article 4 © ordains Parliament to directly exercise judicial power according to law in regard to matters relating to privileges, immunities and powers of Parliament and of its Members. In this regard, the law that empowers Parliament to exercise judicial power is the law, titled ‘the Powers and Privileges of Parliament Act of 1956’ as amended. Thus, Parliament could only exercise judicial power according to and within the ambit of the provisions of the said Act of 1956 as amended. The Article 4 © and the provisions of the said Act of 1956 as amended expressly shut out the exercise of judicial power by Standing Orders.

The existence of judicial scrutiny over the decisions of Standing Committee appointed under 78A becomes apparent from the language of the provisions of the Constitution, of the said Act of 1956 as amended and of the Standing Order 78A. There is no exclusive clause denying the fundamental obligation of reviewing the decisions by the Supreme Court.

The functions of Standing Orders are well defined under Article 74 (1) -- 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.       

 All Standing Orders deal with the normal management of the affairs of Parliament except 78A which deals with the removal of judges of superior courts.
  The procedure to remove the judges of the superior courts was hurriedly brought in the Standing Order 78A after the presentation of Impeachment Resolution against the then CJ, Neville Samarakoon. It was an act of revenge as the then CJ did not permit President Jayawardene to undermine the independence of judiciary.

Articles 118 (f) and 131 expressly declare that 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. Thus, Supreme Court by necessary interpretation could decide the nature of offences that Parliament or Supreme Court could hear or exercise concurrent jurisdiction in terms of the Powers and Privileges of Parliament Act of 1956 as amended. Parliament cannot refuse to honour such interpretation as it would be made by virtue of power conferred on the Supreme Court by the Constitution.  

The Constitution has placed the independence of judiciary in the centre of political maelstrom although JR had practically transformed the office of Presidency into one that approximates to that of a constitutional despotism and all governments acted scornful of the independence of judiciary. The attempt to deface and defile the independence of judiciary still continues unabated.

Nowhere in the Constitution reference is made that lawyers should be appointed as judges to the superior courts or the minor judiciary. Making use of this tenet, no President or Judicial Service Commission could appoint judges from the other professional bodies or from non-professionals. The practice and usage so ingrained for generations in our legal regime would abhor such appointments. Lawyers alone would be manned the apex courts and the minor judiciary. It is inherent in the system. In the same way, a person accused of any breach of statutory or constitutional provisions would not be deprived of procedural justice, principles of natural justice, fair hearing and the right to cross-examine witnesses. All these attributes are inherent in this system. No institutions or body of persons, holding such inquiry, deny such basic rights.

" Credible information is lurking in the political horizon that the government intends to extend the life of Parliament till 2023 as JR did and provision to be made for Parliament to question the Judicial Service Commission in order to bring  the minor judiciary under the influence of Parliament. "

Criminal procedure provides all the rights to defend and prove innocence even to an alleged murderer with a darkest record of murderous intention. Precautionary investigations and methods would be employed in the preparation of charges and evidence to prove them. By the force of presentation of the defence, the alleged suspect might sometime go free at the stage of non-summary inquiry. Upon indictment being served by the Attorney General, trial would proceed in the High Court. If it would appear that no evidence was sufficient to sustain the indictment, the Attorney General could withdraw with the approval of the court. Even if there was sufficient evidence to prove the offence, the Attorney General could enter nolle prosequi. After conviction and sentence, the President could grant him a pardon. Thus, a murderer with a darkest record of murderous intention would go free with impunity.

The incumbent Chief Justice does not even for a moment say “don’t impeach me”. She is prepared to go through the proceedings, if steps were taken to duly and legally prove the charges against her. All that, she wants reasonable time to study and prepare for inquiry over 80 documents running to about 1000 pages. Inconsistency might be virtuous to a politician but consistency is virtue to a judge. The Chief Justice was consistent in her stand without wavering that she could disprove the alleged misbehaviour at a duly and legally constituted inquiry. She was not given even 24 hours to meet such a crusade.

To a Chief Justice who was an associate professor of law, the first lady Chief Justice of Sri Lanka, perhaps the first lady CJ among the Commonwealth Countries and world over, (subject to correction) documents running about 1000 pages were given to study and tender her defence in writing within 24 hours. This kind of justice could only be equated to the justice meted out by the last king of Kandy, ordering the baby of the First Adigar Molligoda to be crushed in the rice-pounder by the baby’s mother.              

Credible information is lurking in the political horizon that the government intends to extend the life of Parliament till 2023 as JR did and provision to be made for Parliament to question the Judicial Service Commission in order to bring  the minor judiciary under the influence of Parliament.
It appears that the President had thought of appointing “an Independent Panel”. It presupposes that the previous panel lacked independence and its Report was fatally flawed. The President, who experienced the cradle of Westminster parliamentary democracy, is enjoying the fruits of executive presidency under 1978 Constitution. Yet, the leading spirit in him would not hopefully allow democracy to drift, rule of law to fail and independence of judiciary be subverted.