UNP calls for changing law on judges’ impeachment
(Lanka-e-News -07.Jan.2013, 6.00PM) The UNP says the law with regard to the impeachment of judges in Commonwealth countries has changed after the decision taken at the 2003 meeting of the Heads of Government of the Commonwealth in Abuja, where the Latimer House principles were adopted.
A media statement issued by the UNP yesterday said: "Sri Lanka as a member of the Commonwealth is under obligation to implement this Resolution. The Commonwealth reiterated its commitment not only to the Latimer House principles but also to the political values of the Commonwealth at the Porto Spain Declaration in Trinidad and Tobago in 2009.
"Therefore the UNP calls on President Rajapaksa and his government to enact as urgent legislation the Private Members Bill titled "Removal of Judges of the Supreme Courts" of which Member of Parliament Wijedasa Rajapakhe, PC, has given notice. This would be in keeping with the decision of the judgment of the Supreme Court," it says in the statement.
Full text of the UNP statement: "The Supreme Court Judgment of Amaratunga J, in Chandra Jayaratne v. Anura Priyadarshana Vapa held
a. "It is mandatory for Parliament to provide by slaw the Body competent to conduct the investigation contemplated in Article 107 (3)
b. The Selection of the body to investigate the allegations of misbehavicr or incapacity and its composition and ‘the manner in which the investigation is to be conducted (procedure) are all matters to be decided by Parliament in its wisdom keeping in mind the necessity to ensure ‘equal protection of the law’ enshrined in the Constitution,
This judgment upholds the issues raised by the UNP (i) that a Resolution to remove a judge under Article 107 is a matter coming: solely within the purview of Parliament and (ii) it is also a requirement to have an independent, impartial inquiry in accordance with the Latimer House principles.
This judgment traces the history of the Constitutional provisions relating to a resolution of Parliament to remove a judge. The Supreme Court identified the differences between Article 107 (3) of the present Constitution and the provisions of the previous Constitutions. The present Constitution prepared by President J R Jayewardene strengthened the safeguards for the judiciary. i.e. Standing Order 78A.
The first set of Standing Orders dealing with an inquiry under Article 107 (3) was passed by Parliament in 1984. The inquiry in relation to Chief Justice Neville Samarakoon was carried out under Standing Order 78 A, Parliament appointed a Select Committee under Standing Order 94 to inquire into whether the judge had made the statement in question. The Select Committee reported that the statement in question had been made by Chief Justice Neville Samarakoon who himself in writing informed the Committee that he had made such a statement. A resolution in terms of Article 107 was presented to the Speaker based on the findings of this Report. Thereafter the Speaker appointed a Select Committee under Standing Order 78A.
The law in this regard changed after the decision taken at the meeting of the Heads of Government of the Commonwealth in Abuja in 2003 which adopted the Latimer House principles. The Latimer House Declaration states:
"1. Judicial Accountability (a) Discipline: (i) In cases where a judge is at risk of removal the right to be fully informed of the charges, to be represented at a hearing to make a full defence and to be judged by an independent and impartial tribunal. Grounds for removal of a judge should be limited to: A. Inability to perform judicial duties and B. Serious misconduct
(ii) in all other matters, the process should be conducted by the Chief Judge of the courts;
(iii) Disciplinary procedures should not include the public admonition of the judges. Any admonitions should lie delivered in private, by the chief judge.
Sri Lanka as a member of the Commonwealth is under obligation to implement this Resolution. The Commonwealth reiterated its commitment not only to the Latimer House principles but also to the political values of the Commonwealth at the Porto Spain Declaration in Trinidad and Tobago in 2009.
Therefore the UNP calls on President Rajapaksa and his government to enact as urgent legislation the Private Members Bill titled "Removal of Judges of the Supreme Courts" of which Member of Parliament Wijedasa Rajapaksa, PC:, has given notice. Thins would be in keeping with the decision of the judgment of the Supreme Court.
The UNP also points out that the Supreme Court did riot accept the arguments put forwards by the Attorney General that the present Constitutional provisions and the Standing Order 78A was sufficient to carry on an inquiry under Article 107 of the Constitution. Furthermore, the Supreme Court did riot accept the argument put forward by some of the political parties that the Select Committee of Parliament exercised judiciary power and was therefore contrary to Article 4 (c ) of the Constitution. Those who make accusations against the UNP today are the same parties whose arguments were not accepted by the Supreme Court.
Some of the daily English media and the Indiana media have sought to misconstrue the UNP’s non participation in these proceedings.
In addition to the ruling given by Speaker Anura Bandaranaike in June 2001, the Supreme Court in Attorney General v, Samarakkody, and the Court of Appeal in Gomez v. Mohomed have held that Parliamentary proceedings are not justiceable by courts. The present judgment has reinforced this position. It must also be mentioned in this connection that section 9 of the Parliament (Powers and Privileges) Act requires 1-hat all privileges, immunities and powers of Parliament shall be part of the general and public law of Sri Lanka and the same shall in all Courts in Sri Lanka be judicially noticed.
The Members of Parliament representing the UNP in the Select Committee did not sign the report. They submitted their views on the procedure to the Select Committee. Not having received a received a reply they submitted their resignations to the Speaker. Therefore they were not members of the Select Committee at the time it became functus.
It alto appears that ail parties have missed a very vital matter, namely Section 49 of the Judicature Act, which provides:
49(3) "Where any Judge who is a party or personally interested, is a Judge of the Supreme Court or the Court of Appeal, the action, prosecution, proceeding or matter to or in which he is a party or is interested, or in which an appeal from his judgment shall be preferred, shall be heard or determined by some other Judge or Judges of the said court".
In other words, the Section ousts the jurisdiction of the Court of Appeal in a case where a Supreme Court Judge is a party or is interested in any action before a Court and vests jurisdiction solely in the Supreme Court. The Section has been carefully drafted to encompass not only cases where the Judge is party but to include actions in which a Judge has an interest in, as would be the case, in all actions relating to a resolution for the removal of a Supreme Court judge under Article 107.
The Court of Appeal could therefore not have issued the notice.
The jurisdiction of the Court of Appeal is set out in Articles 138 – 146 of the Constitution. This read together with Section 9 of the Parliament Powers and Privileges) Act and Section 49 of the Judicature Act would therefore give rise to a constitutional question. The Court of Appeal’s reference of this to ‘the Supreme Court under Article 125 of the Constitution ors was limited to Article 107(3) of the Constitution. The Court did not refer this issue to the Supreme Court.
Unfortunately interested parties in Sri Lanka have sought to treat judicial independence as their private right with no one else having the right to speak on the independence of judges contrary to the view they hold. This is as dangerous as the Rajapaksa regime’s view chat the Judicial Powers should always be exercised in their favour, The Supreme Court has -to be commended for rejecting both these views. Independence of judiciary is a part of the sovereignty of the people and the UNP continues to stress its belief in the sovereignty of the people.
It is the duty of Parliament to uphold the independence of the judiciary as envisaged in the Constitution so succinctly stated in the preamble.
(Lanka-e-News -07.Jan.2013, 6.00PM) The UNP says the law with regard to the impeachment of judges in Commonwealth countries has changed after the decision taken at the 2003 meeting of the Heads of Government of the Commonwealth in Abuja, where the Latimer House principles were adopted.A media statement issued by the UNP yesterday said: "Sri Lanka as a member of the Commonwealth is under obligation to implement this Resolution. The Commonwealth reiterated its commitment not only to the Latimer House principles but also to the political values of the Commonwealth at the Porto Spain Declaration in Trinidad and Tobago in 2009.
"Therefore the UNP calls on President Rajapaksa and his government to enact as urgent legislation the Private Members Bill titled "Removal of Judges of the Supreme Courts" of which Member of Parliament Wijedasa Rajapakhe, PC, has given notice. This would be in keeping with the decision of the judgment of the Supreme Court," it says in the statement.
Full text of the UNP statement: "The Supreme Court Judgment of Amaratunga J, in Chandra Jayaratne v. Anura Priyadarshana Vapa held
a. "It is mandatory for Parliament to provide by slaw the Body competent to conduct the investigation contemplated in Article 107 (3)
b. The Selection of the body to investigate the allegations of misbehavicr or incapacity and its composition and ‘the manner in which the investigation is to be conducted (procedure) are all matters to be decided by Parliament in its wisdom keeping in mind the necessity to ensure ‘equal protection of the law’ enshrined in the Constitution,
This judgment upholds the issues raised by the UNP (i) that a Resolution to remove a judge under Article 107 is a matter coming: solely within the purview of Parliament and (ii) it is also a requirement to have an independent, impartial inquiry in accordance with the Latimer House principles.
This judgment traces the history of the Constitutional provisions relating to a resolution of Parliament to remove a judge. The Supreme Court identified the differences between Article 107 (3) of the present Constitution and the provisions of the previous Constitutions. The present Constitution prepared by President J R Jayewardene strengthened the safeguards for the judiciary. i.e. Standing Order 78A.
The first set of Standing Orders dealing with an inquiry under Article 107 (3) was passed by Parliament in 1984. The inquiry in relation to Chief Justice Neville Samarakoon was carried out under Standing Order 78 A, Parliament appointed a Select Committee under Standing Order 94 to inquire into whether the judge had made the statement in question. The Select Committee reported that the statement in question had been made by Chief Justice Neville Samarakoon who himself in writing informed the Committee that he had made such a statement. A resolution in terms of Article 107 was presented to the Speaker based on the findings of this Report. Thereafter the Speaker appointed a Select Committee under Standing Order 78A.
The law in this regard changed after the decision taken at the meeting of the Heads of Government of the Commonwealth in Abuja in 2003 which adopted the Latimer House principles. The Latimer House Declaration states:
"1. Judicial Accountability (a) Discipline: (i) In cases where a judge is at risk of removal the right to be fully informed of the charges, to be represented at a hearing to make a full defence and to be judged by an independent and impartial tribunal. Grounds for removal of a judge should be limited to: A. Inability to perform judicial duties and B. Serious misconduct
(ii) in all other matters, the process should be conducted by the Chief Judge of the courts;
(iii) Disciplinary procedures should not include the public admonition of the judges. Any admonitions should lie delivered in private, by the chief judge.
Sri Lanka as a member of the Commonwealth is under obligation to implement this Resolution. The Commonwealth reiterated its commitment not only to the Latimer House principles but also to the political values of the Commonwealth at the Porto Spain Declaration in Trinidad and Tobago in 2009.
Therefore the UNP calls on President Rajapaksa and his government to enact as urgent legislation the Private Members Bill titled "Removal of Judges of the Supreme Courts" of which Member of Parliament Wijedasa Rajapaksa, PC:, has given notice. Thins would be in keeping with the decision of the judgment of the Supreme Court.
The UNP also points out that the Supreme Court did riot accept the arguments put forwards by the Attorney General that the present Constitutional provisions and the Standing Order 78A was sufficient to carry on an inquiry under Article 107 of the Constitution. Furthermore, the Supreme Court did riot accept the argument put forward by some of the political parties that the Select Committee of Parliament exercised judiciary power and was therefore contrary to Article 4 (c ) of the Constitution. Those who make accusations against the UNP today are the same parties whose arguments were not accepted by the Supreme Court.
Some of the daily English media and the Indiana media have sought to misconstrue the UNP’s non participation in these proceedings.
In addition to the ruling given by Speaker Anura Bandaranaike in June 2001, the Supreme Court in Attorney General v, Samarakkody, and the Court of Appeal in Gomez v. Mohomed have held that Parliamentary proceedings are not justiceable by courts. The present judgment has reinforced this position. It must also be mentioned in this connection that section 9 of the Parliament (Powers and Privileges) Act requires 1-hat all privileges, immunities and powers of Parliament shall be part of the general and public law of Sri Lanka and the same shall in all Courts in Sri Lanka be judicially noticed.
The Members of Parliament representing the UNP in the Select Committee did not sign the report. They submitted their views on the procedure to the Select Committee. Not having received a received a reply they submitted their resignations to the Speaker. Therefore they were not members of the Select Committee at the time it became functus.
It alto appears that ail parties have missed a very vital matter, namely Section 49 of the Judicature Act, which provides:
49(3) "Where any Judge who is a party or personally interested, is a Judge of the Supreme Court or the Court of Appeal, the action, prosecution, proceeding or matter to or in which he is a party or is interested, or in which an appeal from his judgment shall be preferred, shall be heard or determined by some other Judge or Judges of the said court".
In other words, the Section ousts the jurisdiction of the Court of Appeal in a case where a Supreme Court Judge is a party or is interested in any action before a Court and vests jurisdiction solely in the Supreme Court. The Section has been carefully drafted to encompass not only cases where the Judge is party but to include actions in which a Judge has an interest in, as would be the case, in all actions relating to a resolution for the removal of a Supreme Court judge under Article 107.
The Court of Appeal could therefore not have issued the notice.
The jurisdiction of the Court of Appeal is set out in Articles 138 – 146 of the Constitution. This read together with Section 9 of the Parliament Powers and Privileges) Act and Section 49 of the Judicature Act would therefore give rise to a constitutional question. The Court of Appeal’s reference of this to ‘the Supreme Court under Article 125 of the Constitution ors was limited to Article 107(3) of the Constitution. The Court did not refer this issue to the Supreme Court.
Unfortunately interested parties in Sri Lanka have sought to treat judicial independence as their private right with no one else having the right to speak on the independence of judges contrary to the view they hold. This is as dangerous as the Rajapaksa regime’s view chat the Judicial Powers should always be exercised in their favour, The Supreme Court has -to be commended for rejecting both these views. Independence of judiciary is a part of the sovereignty of the people and the UNP continues to stress its belief in the sovereignty of the people.
It is the duty of Parliament to uphold the independence of the judiciary as envisaged in the Constitution so succinctly stated in the preamble.
