Impeachment, the correct procedure - Choksy

K.N. Choksy PC said the impeachment mechanism is the only accountability mechanism for the Higher Judiciary. As far as Judges of the Supreme Court and Court of Appeal are concerned, it is the only method by which they are made answerable for their conduct in office.

Where the minor Judiciary is concerned, the Judicial Service Commission, which is headed by the Chief Justice, has its own accountability and disciplinary procedure. Regarding the President, the Constitution provides an impeachment procedure by Parliament.

The President is also made responsible to Parliament for his actions. He also has to face the hustings and the people every six years.

Members of Parliament can be expelled by the political party which have nominated them and lose their seats in the House.

Regarding public servants, there is a mechanism where the Public Service Commission exercises disciplinary control.

Thus, there is an accountability process in every sphere of public service in its broad sense. Choksy said that when one looks back on the impeachment of Superior Court Judges there is precedence. This is not the first occasion on which impeachment proceedings have been commenced against a Chief Justice. During the stewardship of President J.R. Jayewardene, in the case of Chief Justice Neville Samarakoon too, the process of impeachment was put in motion.

A Select Committee of Parliament headed by Mr. Premadasa was appointed to look into certain preliminary questions. However, the matter came to a natural end before culmination as Chief Justice Samarakoon reached his age of retirement and thereby ceased to hold judicial office.

There is also international precedence for this procedure of impeachment by the legislature in other domains such as the United States of America and Australia.

"Sri Lanka is a democratic nation and accordingly the process and procedure is not without safeguards. There is a due process to be followed prior to impeachment. A petition has to be presented to the Speaker with not less than one third of the total number of Members of Parliament, signing it. (In the present case, 117 Members have signed it, i.e. more than half). Once the Petition is presented to the Speaker, the Speaker has to appoint a Select Committee of Parliament, which comprises Members of Parliament, both from the Government and the Opposition to inquire into and report to Parliament on the allegations in the Petition.

"At the Select Committee which inquires into the matter, the Chief Justice has the right to be represented by Counsel, by a representative or to appear in person. Thereafter, the findings of the Select Committee are tabled in the House, and Parliament debates the issue. If the Report of the Select Committee is passed by a simple majority in Parliament, an Address is sent to the President by Parliament for the removal of the judge, in this case the Chief Justice. The President acts on this Address of Parliament."

Therefore, Choksy noted, that there is a balanced mechanism and Constitutional process where the Chief Justice has a right to be heard and the due process of the Law is followed. The Parliament thus acts on the lines of a judicial body.Choksy noted that it is not a Kangaroo Court as there is a Constitutional process mechanism.

To ensure that justice and fair play prevail, Parliament refers the matter to a Select Committee of Parliament. This enables a finding to come in a rational and non-partisan manner in fairness to the judge concerned and the institution of the Courts. Choksy said that the Constitution mandates that the Chief Justice shall not be removed other than for "proved misbehaviour", proved to the satisfaction of Parliament. Parliament scrutinises and debates the findings of the Select Committee.

The words "proved misbehaviour" are of wide importance. They bring within their sweep both misbehaviour in the exercise of their official duties, and also personal conduct; and this for a good reason, namely, that judges must be like 'Caesara's wife' i.e. beyond any suspicion whatever. He noted that the impeachment proceedings of the Chief Justice are entirely in the hands of the Legislature. The Judiciary does not come into the scene at all in keeping with the rule that none shall be a judge in his own cause."Nevertheless, Parliament has to be satisfied that there is proved misbehaviour. Since the Courts do not come into the picture, the proof has to be to the satisfaction of Parliament.

The appointment of a Supreme Court Judge is made by the President under the Constitution, but the President is not empowered to remove such a judge. For the purpose of protecting the institution of the higher Judiciary, a wider process is envisaged with Parliament being brought into the mechanism.

"Normally, the appointing authority has the power to remove, but in the larger interest of the protection of the administration of justice, a wider body, namely, Parliament is involved. The President cannot remove a Supreme Court Judge or in this case the Chief Justice except upon an address of Parliament." Choksy, President's Counsel, who is an expert on Constitutional Law, had been the first Minister of Constitutional and State Affairs under President D.B. Wijetunge from 1992-1994 and thereafter Minister of Finance from 2002-2004 under President Kumaratunga during the Premiership of Ranil Wickremesinghe.Choksy has been a Member of Parliament for 21 years having joined Parliament in the first National List, when it was introduced under the stewardship of President R. Premadasa. Choksy was appointed in the first batch of President's Counsels by President Jayewardene.