S.C. Reference No. 3/2012 / C.A. (Writ) Application No. 358/2012
The Court of Appeal on 20/11/2012 in the course of considering several writ applications that came up before it has referred to the Supreme Court in terms of Article 125 of the constitution the following question relating to the interpretation of Article 107 (3) of the Constitution
“Is it mandatory under Article 107 (3) of the Constitution for the parliament to provide for matter relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof etc., of any alleged misbehavior or incapacity in addition to matters relating to the investigation of the alleged misbehavior or incapacity?”
This question was referred in respect of all seven writ applications considered by the Court of Appeal on that day.
It is appropriate at this stage to set out the provisions of Article 125 (1) which is as follows.
“The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution and accordingly, whenever such question arises in the course of any proceedings in any other curt or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasai-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceeding s be stayed pending the determination of such question.”
The preamble to the 1978 Constitution assures to all people inter alia “FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and The INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the dignity and well being of succeeding generations of the people of SRI LANKA”.
The power of removal of the judges of the Supreme Court and the Court of Appeal upon an address of parliament is check provided by the Constitution to sustain the balance of power between the three organs of the Government. The exact nature of the investigation contemplated by Article 107 (3) is a question which has not received judicial attention. In this reference it is necessary to consider this particular matter as it has a link to the question referred to this Court by the Court of Appeal.
Without a definite finding that the allegations have been proved no address of parliament could be made for the removal of a judge. Thus the ‘Investigation’ referred to in Article 107 (3) is an indispensable step in the process for the removal of a judge of the Supreme Court and the Court of Appeal. The investigation leads to a finding whether the allegations made against the Judge have been proved or not.
The finding that the charged allegation has been proved is the indispensable legal basis for the address. Thus a finding, after the investigation contemplated in Article 107 (3), that the allegation against the Judge has been proved is the final decision which directly and adversely affects the constitutional right of a Judge to continue in office.
In a State ruled by a Constitution based on the rule of law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such Court, tribunal or body has the power conferred on it by law to make such finding or decision. Such legal power can be conferred on such court, tribunal or body only by an Act of Parliament which is ‘law’ and not by Standing Orders which are not law but are rules made for the regulation of the orderly conduct and affairs of the Parliament. The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by ‘law’. The power to make a valid finding, after the investigation contemplated in Article 107 (3), can be conferred on a court, tribunal or body or only by law and by law alone.
The matters relating proof being matters of law, also will have to be provided by law and the burden of proof and the mode of proof and the degree of proof also will have to be specified by law to avoid any uncertainty as to the proof of the alleged misbehavior or in capacity without leaving room for the body conducting the investigation to decide the questions relating to proof according to its subjective perception.
The right of the judge under investigation to appear and be heard being a fundamental principle of natural justice should also be provided by law with a clear indication of the scope of the ’right to be heard ‘ such as the right cross examine witnesses, call witnesses and adduce evidence both oral documentary.
The selection of the body to investigate the allegations of misbehavior 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 the ‘equal protection of the law’ enshrined in the Constitution.
The Attorney General and the learned President’s Counsel and other learned counsel for the parities who sought to intervene submitted that the power of removal of the judges of the Supreme Court and the Court of Appeal is a power of parliament. We are unable to accept this submission.
There is a constitutional right given to members of parliament to move resolution containing the allegations of misbehavior or incapacity against the judge of the Supreme Court and Court of Appeal and the right to make an address of Parliament to be presented to the President for the removal of such judge for proved misbehavior or incapacity. The power of removal of such judge is the power of the President.
In view of the reasons we have set out above we answered the question referred to us, as set out at the beginning of this Order as follows.
“It is mandatory under Article 107 (3) of the Constitution for the parliament to provide for matter relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof etc., of any alleged misbehavior or incapacity in addition to matters relating to the investigation of the alleged misbehavior or incapacity”
This answer to the question referred to us and this Order is applicable to Supreme Court references Nos. 4, 5,6,7,8 and 9 of 2012.
The reference made to this Court involves a matter which concerns the Judges of the Supreme Court and the Court of Appeal. In dealing with the question we therefore kept in mind that the objectivity of our approach itself may incidentally be in issue. It is therefore, in a spirit of detached objective inquiry which is distinguishing feature of the judicial process that we attempted to find an answer to the question referred to us. We have performed our duty faithfully bearing in mind the oath of office we have taken when we assumed the judicial office which we hold.
Before we conclude it is pertinent to invite attention of all concerned to the words of the late Hon. Anura Banadaranaike MP, the then Speaker of Parliament containing in his ruling dated 20th June 2001. He said as follows
“However Members of Parliament may give their mind to the need to introduce fresh legislation to amend the existing Standing Orders regarding motions of impeachment against Judges of the superior courts. I believe such provision has already been included in the draft Constitution tabled in House in August 2000.” (Hansard dated 20.06.2001 Column.1039)
2000 draft Constitution did not see light of day as a new Constitution.
We express our gratitude to the excellent assistance rendered by the learned Attorney General, the learned President’s Counsel and the other learned counsel who appeared for the other petitioners and the learned President’s Counsel and other learned Counsel who appeared for the parties who sought to intervene.
Gamini Amaratunga J.
Priyasath Dep. P.C. J.
courtesy – LeN