Impeachment: Good Behaviour, Misbehaviour And The Trial By Parliament
Dr.Nihal Jayawickrama
On 14 March 1984, Mr Neville Samarakoon, the first Chief Justice to be appointed directly from the unofficial bar within living memory, made an ill-advised speech at an inappropriate venue. President Jayewardene, who had appointed him some six years earlier, decided that he should be removed from office. Article 107 of the 1978 Constitution provided that a Judge of the Supreme Court shall hold office during good behaviour and shall not be removed except by an order of the President made after an address of Parliament had been presented to the President for such removal on the ground of proved misbehaviour or incapacity. That Article also required Parliament to provide, by law or by standing orders, for all matters relating to the presentation of such an address, including the procedure for the investigation and proof of the alleged misbehaviour or incapacity.
What the Constitution contemplates, therefore, is a three-stage procedure. The determination whether the alleged offence of misbehaviour has been proved; which is a judicial act. The presentation of an address by Parliament; which is a legislative act. The removal of the Judge from office; which is an executive act by the President. The first stage involves the recording of evidence, due deliberation, and an independent and impartial determination by the application of pre-existing rules and objective standards. In other words, it involves the exercise of judicial power.
Article 4 of the Constitution states quite explicitly that the judicial power of the People shall be exercised by courts, tribunals and institutions created and established or recognized by the Constitution, or created and established by law. The single exception is in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, when the judicial power of the People may be exercised directly by Parliament according to law. The question whether a Judge is guilty of misbehaviour is not a matter that relates to parliamentary privileges, immunities or powers.
