“Sri Lanka has not acted outside the constitution”

Neville de Silva

Governments in many countries have constitutional powers to remove judges in extreme circumstances. Sri Lanka is no different.

Sri Lanka’s impeachment of its Chief Justice prompted Canada to call for the Commonwealth Ministerial Action Group (CMAG) to discuss Sri Lanka at its next meeting in London in April, according to Hugh Segal, Canada’s Special Envoy to the Commonwealth.

Since Canada initiated the move, the views of Segal, as his country’s special envoy, merit attention. Interestingly, while Segal mentions the impeachment, he avoids saying why that should be the casus belli for the Canadian intervention, though he does make a passing reference to judicial independence.

If it is suggested by Mr Segal, and other like-minded persons, that the impeachment of a chief justice or other superior court judge somehow militates against judicial independence, then one is compelled to ask why so many countries within and outside the Commonwealth have provision for the removal of such senior judges who only hold office during good behaviour.

If many countries have such constitutional provisions for the removal of judges, and acts of removals are conducted in keeping with those constitutional provisions, then surely such countries do not deem this as damaging judicial independence.

In impeaching the chief justice, did the Sri Lankan parliament act outside the constitution, did it exceed its powers and usurp the powers of the judiciary or any other arm of the state?

Article 4 of the Constitution of Sri Lanka recognises the doctrine relating to the separation of powers. There are powers and responsibilities given to the legislature, executive and judiciary. One thing is abundantly clear – the responsibility of impeaching judges of the superior courts lies with the legislature and not the judiciary. It is so in the United States, the United Kingdom, Australia, Sri Lanka and other non-Commonwealth states, following a time-honoured British practice.

Some have claimed that Sri Lanka has violated the Latimer House principles, which articulate the separation of powers and underscore the need to preserve the independence of the judiciary, among other matters.

The Latimer House principles were ratified in 1998. With regard to its guidelines on Parliamentary Supremacy and Judicial Independence, this is what is said about the procedure to remove judges: “In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence and be judged by an independent and impartial tribunal.”

Seven years later the UK, where the Commonwealth is headquartered and whose head of state is also the head of the Commonwealth, passed the British Constitutional Reform Act (2005). A radical aspect of this reform was the creation of a 12-member Supreme Court as the highest court in Britain functioning outside the House of Lords, thus breaking with centuries of British tradition.

Article 33 of this act said how these judges could be removed. “A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament.” This procedure follows the practice Britain has adopted for decades and there is no mention of an “impartial tribunal”, as required by Latimer House. Where Britain applies the Latimer House principles, it is to the lower judiciary and not the highest court.

In Australia, despite the recently passed Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act of 2012, Article 72 (11) of the Australian Constitution still holds that judges of the highest court can be removed by addresses to both houses of parliament. No Latimer House principles there!

The space allotted does not permit me to quote in full the provisions of the Sri Lankan Constitution under which the impeachment process was conducted. Suffice it to say that as in the US, UK, Australia and others, the Sri Lankan parliament drew its power and responsibility from Article 107, 107(2) and 107 (3) of the Constitution. There was no impropriety in the application of the constitutional provisions nor has the constitution been violated. Is Sri Lanka then to be chastised for its strict adherence to its constitution?

Previously CMAG has been activated for violating constitutions and overthrowing democratically elected governments, not for abiding by constitutions. Those who criticise Sri Lanka might profitably learn from the proceedings of the 1933 impeachment trial of Federal Judge Ritter in the US and what was said then about impeachment hearings.

About the author:

Neville de Silva is Sri Lanka's Deputy High Commissioner in London


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