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On the Constitutionality of a Parliamentary Select Committee
to inquire into the conduct of the Chief Justice
Written Submissions by S. Nadesan Q.C. - 17 October 1984
Sri Lanka Parliamentary Series, Sessional Paper 71 of 1984, 13 December 1984
"There is a distinct separation of powers in the Sri Lankan Constitution and Parliament in probing the conduct of judges in respect of judicial proceedings is interfering in the administration of justice and trespassing on a field which the Constitution has reserved for the judiciary..."
Thursday, September 6, 1984 - Announcement by the Hon. Speaker:
"I wish to announce that I have, in terms of Standing Order No. 78A (2) of the Parliament, appointed a Select Committee of Parliament comprising the following Members with Mr. Lalith
Summary of Written Submission by S.Nadesan Q.C.
(a) The Constitution provides that sovereignty is in the people and is inalienable (Article 3). To amend this provision a two-thirds majority of Parliament is not enough - it also requires a referendum (Article 83 (a) ).
(b) What is meant by the "sovereignty " referred to in Article 3 is explained in the Article immediately following. The two Articles have therefore to be read together. Sovereignty is described as including the powers of government.
(c) The powers of government are further described as being the legislative, executive and judicial powers, The Constitution goes on to provide bow these powers are to be exercised. As for judicial power, it is provided that this an be exercised by Par1iament direct only in one exceptional instance-that is, in relation to parliamentary privilege, (which is not relevant to the present case), in all other instance, says the Constitution, Parliament shall exercise judicial power not direct but through courts and tribunals.
(d) The wording of Articles 3 and 4 of the Constitution therefore makes it dear that the way in which judicial power is exercised is part of the provision made in respect of powers of government, which in turn is an element comprised in the sovereignty of the people. To alter the way in which judicial power is to be exercised, for instance to say that not only in respect of Parliamentary privilege, but also in respect of certain other matters, it can be exercised directly by Parliament instead of through courts, would be to affect the sovereignty of the people and therefore require a referendum,
(e) What is sought to be done by the present Select Committee of Parliament. inquiring into allegations against the Chief Justice is clearly nothing less than the exercise of judicial power.
(f) However the exercise of judicial power by Parliament in any matter other than one relating to parliamentary privilege is, as explained above, unconstitutional if a Bill were to be presented in Parliament seeking to confer this power on a Select Committee of Parliament, it would have to be passed not only by a two-thirds majority but also by a referendum.
(g) What Parliament cannot do by merely passing a law without a referendum it cannot do by adopting a Standing Order, in fact the Constitution specifically provides that Standing Orders are subject to the provisions of the Constitution, (Article 74). Therefore, even it a Bill amending the Constitution is of such a nature as to require only a two-thirds majority and not a referendum, the previsions of such a Bill cannot be made by Standing Order.
(h) The. Standing Order under which this Select Committee has been set up (Standing Order .78A) is, therefore, of no effect in law, and any action taken under it would be a violation of the Constitution.
Full text of Written Submission by S.Nadesan Q.C.
These submissions relate to my objection to the constitutionality of the proceedings and findings of the Select Committee appointed under Standing Order 94 to inquire into and report to parliament in respect of the speech made by the Chief Justice which i,s recited in the resolution on f lie address for the removal of the Chief Justice.
(1) A Constitution is primarily an instrument to distribute political power and it is hard to escape the necessity of some tribunal with authority to declare when the prescribed distribution has been disturbed, In our case, it is to the Supreme Court that this task is entrusted by 11w Constitution.
(2) The ultimate Court of Appeal under our Constitution is the Supreme Court of our country. If the question is asked "what if the judges make mistakes ?' the answer is that somewhere there must be finality as to the adjudication of constitutional or other disputes and our Constitution ascribes that finality to the determinations of the Supreme Court When the Supreme Court interprets the law what it says is the law. When it applies the law to the facts and determines the matter in dispute such determination is final. Someone else may consider the reasoning of the Court unsound and criticise the judgment, but what that someone else says ~s the correct law is not the law as the Constitution has not made him the final authority in the determination of disputes or in the interpretation of the laws of this land,
3. I consider that some of the judgments of the Supreme Court are wrong but what I say is not the law. What the Supreme Court declares to be the law is the law. What the President or the Cabinet of Ministers or their legal advisers, however eminent they may be, think is the law is not the law if their view is in conflict with the view of the Supreme Court, If they do not like the law as pro. pounded b~' the Supreme Court they can initiate the necessary legislation to amend, modify or rescind the law as declared by the Supreme Court, Until thor1 they nave to respect the law as propounded by the Supreme Court, If they substitute their view of the law for that of the Supreme Court they will be acting unconstitutionally.
4. The Attorney-General himself may express an opinion different from that of the Supreme Court but what the Attorney-General says is not the law He is a member of the executive. He is not entrusted by the Constitution with the power to adjudicate on matters of law or fact in respect of any dispute between subject and subject or the subject and the State. If after a decision of the Supreme Court he is asked in another case what the law is on a matter covered by the decision he
has to say that the law is what the Supreme Court has decided, He may say that he does not agree with the view of the Supreme Court, In that event all he can do is to test his opinion by making due application for a fuller Court of the Supreme Court to consider the matter and if the matter comes before the fuller Court and that Court reverse the earlier judgment from that day onwards the law on the matter will be that pronounced by the fuller Court. But this decision will not affect the rights of parties to the earlier decision of the Supreme Court.
5. Once the law is set out by the Supreme Court it is incumbent on all organs of government to respect the law as thus laid down however much they may disagree with it, or do not like it, until that law is changed by legislation or reversed by a fuller Court. Neither the executive nor the legislature can exercise any sort of supervisory control over the Supreme Court, call the judges before it, question them as to how they came to some conclusions etc. If they do so they are interfering with the functions of the Supreme Court, undermining the independence of the judiciary and bringing into disrepute and contempt the administration of justice. They are usurping functions which are not theirs under the constitution.
6. Under our Constitution the conduct of judges whether of the minor judiciary or of the superior court-s cannot be raised whether by substantive motion or otherwise in Parliament as such discussion in Parliament undermines the independence of the judiciary which is, as stated in paragraph 37 of the written statement of defence marked "Al ", part of the basic structure of the Constitution, The reasons for considering the independence of the judiciary as part of the basic structure is clearly set out in "Al".
7, This independence of the judiciary is also ensured by the separation of powers under our Constitution with regard to which there can be no doubt.
8. Justice Wanasundera having examined the provisions of our Constitution stated in the Ceylon Daily News Contempt Case: "I think that no counsel before us disputed that these provisions indicate an unmistakable vesting of the judicial powers of the people in the judiciary established by or under the Constitution and the Parliament acts as a conduit through which the judicial power of the people passes to the judiciary."
9. To ensure the independence of the judiciary our Constitution has established a JSC which is responsible for the appointment and disciplinary control of the judiciary, created a special class of public officers called scheduled public officers under the control of the JSC made any interference with the JSC an offence and also provided that judges of the superior Courts shall hold office during good behaviour and shall be removed from office only in accordance with the stringent provisions prescribed in Article 107 of the Constitution.
10. With regard to similar provisions in the Ceylon Independence Order-in-Council the Privy Council observed in Liyanage's case "These provisions manifest an intention to secure in the judiciary a freedom from political legislative and executive control. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legis1ature"
(78 NLR 218).
ii, Accordingly under the provisions of our Constitution the judiciary cannot be subject to any political, legislative or executive control or interference.
12. If in the case of a District Judge, representations are made to a Member of Parliament by an influential party supporter in his electorate that the District Judge held against him in a case because he has taken bribes from hl~ opponent or because the District Judge secretly was a supporter of the opposite political party or because of personal animosity against him and that he also hears from reliable sources that the Judge has taken bribes in several other cases too, the M.P. may well believe the story.. The M.P. then reads Standing Order 78 and concludes that he is entitled to bring the matter before Parliament by substantive motion, Accordingly he presents a motion in Parliament in the following terms:
"Whereas Mr, District Judge of the District Court of in Case No. dismissed the plaintiff's action and it is alleged that he did so as he has taken a bribe etc. I move that a Select Committee of Parliament he appointed to investigate the matter and report to Parliament as to whether there is any truth in the allegations or not and if any of the allegations are true as to what further action should he taken in the matter ".
This motion is accepted by the Speaker who is of the view that under Standing Orders such a motion can be brought in Parliament and it finds a place in the Order Paper and thereafter in the news media, A Select Committee of Parliament is appointed which proceeds to summon witnesses and also the District Judge, investigate the matter, hear the waitresses on both sides and makes its report to Parliament. The proceedings may be kept secret until the report is made, but everyone is aware that the inquiry is proceeding before the Select Committee, which is a fact finding Committee.
13. While all this is happening the District Judge continues to sit in Court and is hearing eases day after day, Will not such proceedings in Parliament: undermine the independence of the judiciary? Will it not shake the confidence of the people in the due administration of justice? Will it not give an impression to the people that under our Constitution the legislature has some sort of disciplinary or supervisory control over the judiciary? Will not other members of the judiciary think that they should have due regard to the fact that a litigant is an influential member of the ruling party in making their decisions? If these questions are answered in the affirmative will it not mean that though the Constitution was framed to secure in the judiciary a freedom from legislative pressure or interference yet Parliament is violating the provisions of the Constitution?
14, In this connection it may be noted that under Article 116 of the Constitution interference with the judiciary is made an offence. Article 116(1) provides that every judge shall exercise and perform his judicial powers and functions without being subject to any direction or interference from any other person except a superior court or other person entitled under law to direct or supervise such judge. The only other person entitled by law to direct or supervise a judge in certain matters is the JSC. The legislature is not given by law any power to supervise any Judge, Indeed, the separation of powers means that the legislature has no such power and that the judiciary is completely independent of the legislature.
15. Article 116(2) provides that every person who, without legal authority, interferes or attempts to interfere with the exercise or performance of the judicial powers of any judge shall be guilty of an offence punishable by Use High Court on conviction after trial without a jury with imprisonment up to one year and/or with a fine and may in addition be disqualified for a period not exceeding seven years from being an elector at any election or from holding any public office or from being employed as a public officer.
16. In the case of the District Judge referred to in paragraph 12 above, the M,P. to whom the original complaint was made should have forwarded the complaint to the JSC for necessary action or the litigant himself should have directly addressed his complaint to for JSC who would investigate the matter discreetly without any publicity and take necessary action.
17. No power has been given by the Constitution to Parliament through the device of a Select Committee or otherwise to interfere in any way with the administration of justice. When a competent court has decided on what should he done for the protection, vindication and enforcement of the rights of any person, Parliament has not been given the power to question the Judges or any other officer of the Court or to probe into the circumstances in which the judgment came to be written, investigate the facts anew, arrive at a conclusion as to whether the judgment or any order is justified or not or as to the circumstances under which judgment was delivered on one day and not on another day.
18. The independence of the judiciary is as mentioned earlier a part of the basic structure of the Constitution', I~ the conduct of any judge in his judicial capacity is assailed in Parliament, it will undermine the independence of the judiciary. It violates Article 116 of the Constitution which prohibits any such interference with the judiciary, The only occasion when the conduct of the judiciary can be discussed in Parliament is when a substantive motion for the removal of a judge of the Supreme Court or Court of Appeal has been presented in terms of Article 107, The standing orders of Parliament state that the conduct inter alia of judges cannot be raised except upon a substantive motion. This implies that under the Constitution, the conduct of judges can be raised. The only provision under which the conduct of judges can be so raised is under Article 107 of the Constitution. Aceording1y it is submitted that a substantive motion for the discussion of the conduct of a judge except in respect of his removal is ultra vires the Constitution.
19. In India the independence of the judiciary is not emphasised in the Constitution. Neither is the separation of powers which is necessary for the independence of the judiciary set out as we have done in our Constitution. But as in England it is implicit in the Indian Constitution.
20. Under the provisions of the Indian Constitution however Parliament or State Legislatures cannot discuss the conduct of judges except when a resolution for the removal of a judge is debated.
21. Article 121 of the Indian Constitution provides -
"No discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President for the remova1 of the judge"
22. Article 211 of the Indian Constitution provides that "no discussion shall take place in the 1egislature of a State with respect to the conduct of any judge of the Supreme Court or of a High Court judge in the discharge of their duties.
23. So far as the minor courts in India arc concerned they are und~ the supervisory jurisdiction of the High Courts (Articles 235, 277). If there is any alleged misconduct by the Lower Courts the High Courts will look into the matter and take appropriate action. If such alleged misconduct is made a subject of discussion in the legislature It will undermine the independence of the minor judiciary. Same the case with regard to the judges of the Supreme Court and High Courts. but in the east of their removal the legislature has a part to play in India even as our Parliament. has a part to play in Sri Lanka.
24. In the Indian Constitution Articles 121 and 211 have been put in as a matter of caution. In our case no such Articles are necessary as the preamble and the body of the Constitution provide for the separation of powers and the independence o( the judiciary, and Article 116 prohibits all interference or attempted interference with the judiciary.
25. In England the conduct of judges of the Supreme Courts is by convention never the subject of criticism in Parliament (see C. K. Allen "Law & Orders" page 4.)
26. As for the judges of the inferior Courts if there is any misconduct by them the matter is brought to the notice of the Lord Chancellor by the complainant. The complainant may if he chooses bring the matter to the notice of his M.P. who will in turn take it up with the Lord Chancellor.
27. The resolution embodying the Address to H.E. the President recites first the passages in the speech made by Mr. N. D. M. Samarakoon, Q.C., Chief Justice, on 14th March 1984 at the Annual Awards Ceremony of the Sinnathurai Commercial Tutory.
28. Then there is a recital which reads as follows -"And whereas a Select Committee of Parliament was appointed to inquire and report to Parliament on-
(1) whether any or all of the statements attributed to the Hon. N. D. M. Samarakoon as reported in the Press were made by him at the Annual Awards Ceremony of the Sinnathurai Commercial Tutory held at the Sea View Hotel, Kollupitiva on Wednesday, the 14th March, 1984.
(2) if such statements were made, whether such statements -
(i) constitute improper conduct or conduct unbecoming of the holder of the office of Chief Justice
(ii) refer to matters of a political nature or refer to matters involving political issues or controversies and matters which could form the subject of proceedings before him or other judicial personnel
(iii) affect the dispensation of impartial justice;
(iv) afford grounds for allegations of bias by parties to proceedings; and
(v) tend to bring the entire Supreme Court and particularly the office of the Chief Justice into disrepute; and
(3) whether the Committee is of opinion that these circumstances warrant any further action and, if so, to recommend what action be taken."
29. Then there is a recital of the findings of the Select Committee. This recital in substance states that the Select Committee found
(a) that all of the statements attributed to the Hon. N. D. M. Samarakoon, Chief Justice, were made by him at the Awards Ceremony;
(b) that some of the statements specified by the Committee could be considered as constituting improper conduct or conduct unbecoming of the holder of the office of Chief Justice;
(c) that some of the statements were matters involving political issues or controversies and matters which could form the subject of proceedings before the Chief Justice or other judicial personnel
(d) that the Committee finds it difficult to accept that some of those statements made by the holder of the highest judicial office in the country could make it possible to expect dispensation of impartial justice; and
(e) that although some of the statements indicated by the Committee may not bring the entire Supreme Court into disrepute, they are not befitting the holder .of the office of Chief Justice.
30. Then the recital says that the Committee is of opinion and wish to recommend to the House that appropriate action be taken in view of the findings of the Committee, the Committee being of opinion that circumstances warrant further action.
31. There were nine members of the said Select Committee, seven Government Party members and two Opposition members. The recital in the resolution contains the majority view of all the seven members of the Government Party. It does not contain the dissent of the two members of the Opposition parties who completely exonerated the Chief Justice arid recommended that no further action to taken.
32. It is submitted that the entire proceedings both in Parliament and before the Select Committee are for the reasons given earlier unlawful and unconstitutional. Par1iamen~ or a Select Committee of Parliament cannot discuss the conduct of any judge whether on or oft the Bench if such discussion will interfere with the due admini~4ration of justice or bring the administration of justice into contempt or disrepute and/or affect the independence of the judiciary.
33. The only situation in which tinder our Constitution the conduct of a judge can be discussed is when a motion for an Address for the removal of a judge of the superior Courts is presented to Parliament. Even in such a case the procedure devised must be such as to keep such a resolution secret until after the appropriate judicial tribunal has found the judge guilty of misbehaviour or incapacity.
34. There is however a precedent for what the Select Committee has done as earlier a similar Select Committee was appointed to investigate into the allegations made by Mr K. C. E. de Alwis one of the members of the Special Presidential Commission against two of the three judges of the Supreme Court who. heard a writ application against him.
35. The three judges who heard the application were the Chief Justice Wimalaratne, J. and Cohn Thome J. They delivered three separate judgments on the 18th of October, 1982, two days before the date fixed for the Presidential Elections. The Chief ,Justice issued a Writ of Prohibition forbidding Mr. K. C. E. de Silva from taking any further part in the investigation of the conduct of Mr. Fowzie which was a matter that was pending before the Special Presidential Commission at that time.
36. Justice Wima]aratne and Justice Cohn Theme disagreed with the views of the Chief Justice. They granted the prayer of the petitioner to issue a writ of quo warranto declaring that Mr. K. C. E. de Alwis, the 1st respondent, had become unable to act and was disentitled to hold the office of and to function as a member of the Special Presidential Commission of Inquiry.
37. After the above judgments were delivered Mr. K. C. E. de Alwis addressed a petition to H.E. the President in which he alleged, inter alia,
(a) that there was bias on the part of Justice Wimalaratne and Justice Percy Colin Thome which prevented them from making a proper assessment of the facts before them and pre-set their minds to arrive at an adverse finding against him;
(b) that although the State had an interest in the matter of the application rind the Attorney-General sought audience before Court to guide the judges en the issue whether writs of quo warranto and prohibition lie and how the grant of writs affects the Commission issued by the President the judges summarily rejected the application to assist the Court.
Mr. K. C. E. do Alwis later gave a third ground of complaint, namely that some of the pleadings filed by or on. behalf of the petitioner were prepared in the Chambers of one of the Judges, Percy Cohn Thome J.
38. As a result of the petition addressed to His Excellency the President by Mr. K. C. F. de Alwis, the Cabinet decided to move Parliament to appoint a Select Committee to inquire into and report on the matter raised by Mr. de Alwis. The motion to set up the Select Committee was moved by Hon. Gamini Dissanayake, Minister of Lands and Land Development and Minister of Mahaweli Development and passed by Parliament on the 8~h of March. 1984 and a Select Committee of seven members all of whom except one were members of the Government Party were nominated by Mr. Speaker.
39.The terms of reference of the Select Committee stated that the Select Committee was appointed to inquire into and report to Parliament, inter ala, in respect of the following matters-
(i) Whether there were any circumstances which rendered it improper for Justice D. Wimalaratne and/or Justice Percy Colin Thome to have agreed to hear and determine the application (S.C. Ref. No. 1 of 1982) filed by Mr. Felix R. D. Bandaranaike anti whether the decision of either of them was influenced by any improper consideration;
(ii) whether any pleadings filed by or on behalf of the petitioner the said Felix P. D. Bandaranaike in the said proceedings were prepared in the Chambers of Justice Percy Colin Thome, one of the Judges who heard the said application and, if so, the circumstances in which it came to be so prepared;
(iii) whether the failure of the Judges to afford an opportunity to the Attorney- General to address on behalf of the State was justified, particularly having regard to-
(i) the fact that the Attorney-General made an application to be heard in the said proceedings
(ii) the Order made by the Court on 20th September, 1982 on the said application by the Attorney-General refusing to hear him and stating that the Attorney-General would be heard if it became necessary in the course of the proceedings; and
(iii) the fact that the decision of the majority of the Judges of the-Court materially affected the operation of the Warrant issued by Hi; Excellency the President.
(iv) Circumstances in which-
(i) the judgment was delivered on 18th October, 1982. two days before the date of the Presidential Elections; and
(ii) the judgment was delivered by a bench consisting of one of the respondents to the application.
(v) whether there was any other impropriety in the conduct of or in relation to the said proceedings."
40. The Committee commenced its deliberations on 25th March, 1933 and held 21 meetings on several dates spread over about 15 months the last sitting being on the 5th of June, 1984.
41. The Select Committee recorded the evidence of the Chief Justice as well as that of Justices Sharvananda. Wimalaratne, Percy Colin Theme and J. F. A. Soza, all of whom were at the time functioning as judges of the Supreme Court and of Mr. J. G.T. Wceraratne who was a retired judge of the Supreme Court. The Committee also recorded the evidence of Mr. P. Navaratnarajah, Q C., who appeared as Senior Counsel for Mr. K. C. E. de Silva and also that of the Attorney-General and of the acting Registrar of the Supreme Court. It also recorded the evidence of several other witnesses including Mr. K. C. E. de Alwis.
42. Justice Wimalaratne was represented by lawyers. Both Justice Wimalaratne and Justice Percy Cohn Thome in addition to giving evidence made written submissions also to the Select Committee.
43. The above facts appear in Parliamentary Series No. 62 of the First Parliament of the Democratic Socialist Republic of Sri Lanka (Fourth Session).
44. It is submitted that the entirety of these proceedings in Parliament under Select Committee in respect of Mr. K. C. E. de Alwis complaint is unconstitutional.
45. Mr. K. C. E. de Alwis was dissatisfied with the orders of the Supreme Court on the ground (a) that two of the three judges who heard this case were biased against him; (b) that some of the pleadings filed by the petitioner were prepared In the Chambers of one of the two judges and (c) that the Attorney General was refused a hearing.
46. Under the Constitution, the only way in which Mr. K. C. E. de Alwis could have obtained relief was to invoke the jurisdiction of the Supreme Court itself to revise the earlier order on the grounds urged by him or to take whatever remedy was available to him in the Court.
47 When judgments and orders are made by the Courts any one can criticise the orders or judgments provided no improper motives are attributed to the judges.
But the Constitution has not set up any authority outside the judiciary to summon any judge of any Court from the minor Court to the Supreme Court and to investigate the circumstances under which the judge gave his order or judgment whether he was influenced by bias and the propriety or otherwise of these proceedings, etc., and to make a report of their findings.
48 Parliament has not been vested by the Constitution to interfere with the administration of justice which is a matter entirely for the Courts.
49. There is a distinct separation of powers in the Sri Lankan Constitution and Parliament in probing the conduct of judges in respect of judicial proceedings is interfering in the administration of justice and trespassing on a field which the Constitution has reserved for the judiciary.
50. Besides such proceedings undermine the independence of the judiciary and shake the confidence of the people in the due administration of justice. In Mr. K. C. E. de Alwis case while Parliament was investigating into the correctness or otherwise of the order made by these two judges for nearly fifteen months these two judges were sitting in the Supreme Court and presiding not only disputes between subject and subject but also between the subject and the State in respect of several important matters including complaints in respect of the violation of fundamental rights.
51. Under these circumstances, what confidence would people have reposed in the orders and judgments of these two judges when their own judicial integrity was in doubt and the matter was being probed by a Select Committee of Parliament.
52. The proceedings of Parliament and the Select Committee in Mr. K. C. E. de Alwis' case is ultra vires the Constitution, as Parliament cannot discuss the conduct of judges except on a motion for an address for the removal of a judge of the superior Court under Article 107 of the Constitution.
53. It is hardly necessary to state that the findings of this Select Committee which is ultra vires the Constitution is invalid and not worth anything.
54. Accordingly it is submitted that this unfortunate precedent should not have been followed in respect of the speech made by the Chief Justice.
55. The proceedings of the Select Committee appointed to report on the speech made by the Chief Justice and its findings are ultra vires the Constitution and are of no value and should not be considered by this Select Committee appointed under Standing Order 78A notwithstanding the fact that the recital to the resolution sets out those findings.