By Rohitha Bogollagama, former foreign minister With respect, I reply to the article written in the Sunday Times of January 27 by Opposition Leader Ranil Wickremesinghe. He has declared that the impeachment motion hearing should have been confined to Parliament. This was in particular a blow against the protest actions in the vicinity of the [...]


Latimer House: Why Ranil was wrong


By Rohitha Bogollagama, former foreign minister

With respect, I reply to the article written in the Sunday Times of January 27 by Opposition Leader Ranil Wickremesinghe. He has declared that the impeachment motion hearing should have been confined to Parliament. This was in particular a blow against the protest actions in the vicinity of the Supreme Court complex, including the publicity seeking actions of the Chief Justice.

Mr. Wickremesinghe is to be commended for not accompanying his colleagues who went to Court when an action was instituted about the impeachment. This was an affirmation indirectly that the internal workings of Parliament were outside the jurisdiction of the Courts.

These were actions of a statesman.

The Leader of the Opposition could have gone further and enhanced his reputation as a statesman, but he may have lost or weakened his position as a leader of the UNP by clearly espousing the principle that the courts have no power over the internal affairs of Parliament – and the Latimer Principles cannot modify principles recognised from 1701 in a host of countries, including the UK and the US. The Address is for a Superior Court. The Latimer Principles are for the inferior courts.

Mr. Wickremesinghe has written an erudite and learned article. But learning and erudition is tempered by a number of missing dimensions.

Though there are references in the article to the word “address” there is no analysis and understanding of the meaning of address and its history from Act of Settlement, 1701, and its incorporation in the Constitution of Ceylon and the Republican Constitutions. There is lack of understanding of the fact that the Latimer principles have no application to judges of the Superior Courts.

The United States have incorporated into its constitutional structures the concept of address to dismiss judges and reference to the United States present practice and early history.

This article draws from a forthcoming publication, “Reflections on the Impeachment” by Dr Mark Cooray and presents facts and opinions on a number of relevant issues. The forthcoming publication of Mark Cooray is available on web: CJIMPEACHMENT2013X.

The present article analyses: (i) The facts about the concept of address (ii) Some facts about the Latimer principles (iii) The facts about address, highest court and lower courts (iv) the role of the PSC.

Some specific points raised by the Leader of the Opposition are addressed before analysing the issues stated above.
It is alleged that the CJ had no opportunity to present her case. The answer is she walked out and lost the opportunity to make a response. This was her choice. I do not know what happened in proceedings. But assuming her allegations of abuse are true, a person of character and confident of her case, would have stayed on regardless. A detailed written response may have been made. The time limit within which PSC had to operate, could have been extended, if a demand had been made by the opposition members of SPC or the CJ.

The walkout by the CJ and the opposition members of the SPC gives weight to the belief that they did not have adequate answers to the allegations. The opposition members could have presented a dissenting report. Why did they not do so? It appears that they did not have reasons to support the case of the CJ.

After the walkout, how could the CJ receive a complete opportunity to state her case?

After the walkout she paints herself as a martyr. It seems that it would have been very different if she stayed and presented her case.

Mr. Wickremesinghe complains about the CJ not having an opportunity to present her case to Parliament, the fault lies with her for walking out.

Mr. Wickremesinghe does not seem to be clear about the House of Lords. The House of Lords is one of two houses, which along with the sovereign constitute Parliament. The judicial powers of the House Lords were exercised by only a limited number called the “Law Lords” who until 2009 composed the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords as the highest Court in the UK. The judicial powers are no longer exercised by the House of Lords and are now vested in the Supreme Court established in 2009. The members of the Appellate Committee of the House of Lords became judges of the new Supreme Court.

The difference between th highest and the lower court

Different principles apply in impeachment proceedings between the highest courts in a nation or a state within a federation, where the mode of dismissal is through address. The Latimer principles apply to the lower courts. This is explained below;

With regard to the ‘burden of proof’ in impeachment proceedings, the 1933 impeachment trial of Federal Judge Halsted Ritter in the USA is of special significance. It shows there is no burden of proof.

During the hearings of the Ritter case, Congressman Hatton W. Sumners, Chairman of the Judiciary Committee of the US House of Representatives explained that impeachment was essentially an ‘ouster proceeding’ as opposed to a criminal proceeding. Agreeing with this view, the presiding officer at the Ritter impeachment hearing Senator Nathan L. Bachman of Tennessee made the observation that an impeachment proceeding before the Senate “has neither of the harshness and rigidity of the criminal law nor of the civil proceedings requiring less particularity”.

Congressman Sam Hobbs another Member of the House of Representatives appearing before the Senate articulated three principles on the burden of proof and evidence in an impeachment trial:

1. Impeachment trials are not criminal trials in any sense of the word.
2. The burden of proof in this case is not ”beyond a reasonable doubt”, as it is in criminal cases.
3. The presumption of innocence, which the accused has in a criminal case, is not available to a respondent in an impeachment trial.

Sri Lankans should take particular note of the third point articulated by Congressman Hobbs to the effect that respondents in an impeachment proceeding are not supposed to enjoy even the presumption of innocence.

Congressman Hobbes asserted further – “If judges can hold their offices only during good behaviour, then it necessarily and logically follows that they cannot hold their offices when they have been convicted of any behaviour that is not good. If good behaviour is an essential of holding the office, then misbehaviour is a sufficient reason for removal from office”.

Bogollagama (right) with Kamalesh Sharma

During the US Senate trial of Judge Ritter, several Senators made observations which are of relevance here. In a joint statement, Senators Borah, La Follette, Frazier, and Shipstead said, “We did not,… seek to satisfy ourselves as to whether technically a crime or crimes had been committed,… we sought only to ascertain from these facts whether his conduct had been such as to amount to misbehaviour,…There are a great many things which one must readily admit would be wholly unbecoming, wholly intolerable, in the conduct of a judge, and yet these things might not amount to a crime”.
Senator Elbert Thomas of Utah declared during the Ritter case – “Tenure during good behaviour is in no sense a guaranty of a life job, and misbehaviour in the ordinary, dictionary sense of the term, will cause it to be cut short…”

In Congressman Sumner’s (The House of Reps Judiciary Committee Chairman) final argument before the Senate in the Ritter impeachment, he made the following points:

1. We do not assume the responsibility of proving that the respondent in this case is guilty of a crime as that term is known to criminal jurisprudence.
2. We do assume the responsibility of bringing before you a case, proven facts, the reasonable and probable consequences of which are to cause the people to doubt the integrity of the respondent.
3. We take the position, first, that justice must be done to the respondent. The respondent must be protected against those who would make him afraid.
4. But we take the position also that when a judge on the bench, by his own conduct, does that which makes an ordinary person doubt his integrity, that judge must go.
5. If confidence in the courts of this country is destroyed it is going to be destroyed from within by the judges themselves. That is one thing which neither the House nor the Senate can permit.
6. When the people put him (the respondent) there, they said to him, ”All we ask of you is to behave yourself.” Good behaviour! What does that mean? It means obey the law, keep yourself free from questionable conduct, free from embarrassing entanglements, free from acts which justify suspicion; hold in clean hands the scales of justice.
7. That means that he shall not take chances that would tend to cause the people to question the integrity of the court, because where doubt enters confidence departs. When a judge on the bench, by his own conduct, arouses a substantial doubt as to his judicial integrity he commits the highest crime that a judge can commit under the Constitution.

8. It is not essential to prove guilt. There is nothing in the Constitution and nothing in the philosophy of a free government that holds that a man shall continue to occupy office until it can be established beyond a reasonable doubt that he is not fit for the office. It is the other way. When there is resulting from the judge’s conduct a reasonable doubt as to his integrity he has no right to stay longer.

Judge Halstead Ritter was removed from office.

The concept of an address

The roots of the concept of an address presented by Parliament or Congress for impeachment are analysed above. An important distinction is drawn between minor judiciary and the highest courts, in relation to removal of judges.
The Parliament Powers and Privileges Act of 1953 is clear on the powers of Parliament. Section 7 of the Act states that the immunities and powers of members of Parliament will be those conferred by this Act and those exercised by the UK

House of Commons.

The Joint Committee on Parliamentary Privilege of the UK Parliament of 1999 had the following to say:
Section 229 – “What happens within Parliament is a matter for control by Parliament alone. Such matters will not be reviewed by the courts. So far as the courts are concerned, they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges”.

Section 232 – “Both Houses have long claimed, and succeeded in maintaining, the right to be the sole judges of the lawfulness of their own proceedings and to determine, or depart from, their own codes of procedure. Courts of law accept Parliament’s claim that they have no right to inquire into the propriety of orders or resolutions of either House relating to their internal procedure or management. Except for purposes of statutory interpretation, the courts do not `look behind the Act’ or consider themselves competent to consider the processes within Parliament preparatory to enactment. In the processes of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality, unless and until it is amended or repealed by Parliament”.

In the landmark Privy Council case of Madzimbamuto v Lardner Burke (1969) Lord James Reid said the following about the powers of the courts vis-a-vis the Parliament: “It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid”.

The UK is the head of the Commonwealth and we may perhaps gather what exactly was meant in terms of the Latimer House Principles by studying the UK Constitutional Reform Act of 2005 which was promulgated some time after the ratification of the Latimer House Principles. One of the most radical aspects of the British constitutional reform was that a new 12-member Supreme Court was created to be the highest court in the UK and it would function outside the House of Lords (legislative chamber) breaking with centuries of British tradition. The interesting factor to note is how these judges of the Supreme Court were to be removed. Article 33 of the UK Constitutional Reform Act of 2005 is as follows:
“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”.

That is all this huge 323-page Act of Parliament says about the removal of judges of the Supreme Court. This provision to remove Supreme Court judges basically follows the time honoured British practice. There is no talk of an ‘impartial tribunal’ or about filing charges, hearings and the right to defend oneself. Somebody files a motion in parliament and after due debate, parliament will decide whether to sack or retain the judge. This was the good old system that the British bequeathed to us when we gained independence. Article 52(2) of the Ceylon Constitution of 1947 was identical to the above quoted article in the UK Constitutional Reform Act of 2005. When Ceylon became a republic, the same tradition was followed and Article 122(2) in the 1972 Republican Constitution also had the identical wording as the 2005 UK Act.
Even though the 2005 UK Constitutional Reform Act does not apply the so-called Latimer House Principles to the Supreme Court, these principles have been applied to the lower courts.

What this means is that the British constitutional experts have given due recognition to the fact that being in the highest judicial body is a different ball game altogether and the rules that may apply to the lower judiciary cannot be applied to the highest court. The Constitutional Reform Act of 2005 shows clearly that the British, like the Americans, believe that the most competent body to remove judges of the highest judicial body is the legislature. Like the Americans, the British too have placed the fullest confidence in their legislature to be able to make a considered decision to remove a judge of the highest court.

At first sight a new piece of legislation appears to indicate that Australia has implemented the Latimer House Principles in full. Closer scrutiny will show a different picture. In this regard the following should be taken note of.

The provisions relating to the removal of judges of the highest courts was identical to Article 33 of the 2005 UK Act. According to Article 72(ii) of the Australian Constitution, judges of the highest court can be removed on an address presented to both houses of parliament. Last month, the Australian Parliament passed the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of 2012, which on the face of it seems to bring the judges of the highest Australian courts under the Latimer House Principles.

However Dr. Mark Cooray in his publication “Reflections on the Impeachment” discusses the issue comprehensively. A summary of Dr. Cooray’s views on the matter are provided.

The Australian Constitution, Article 72(ii) allowed for the removal of judges on an address in both houses of parliament is completely intact. That right has not been undermined one whit, because if it was, it would have been unconstitutional. It was an ordinary Act passed by Parliament. All that the new Act has done is to give the Australian Parliament the OPTION of appointing a Parliamentary Commission to inquire into allegations of conduct. There is also the added convenience that this Act lays down a procedure for such inquiries. The Australian Parliamentary commissions to inquire into the conduct of judges will be both non-binding and non-exclusive.

The Australian Act referred to, states in article 19(1) that the Parliamentary Commission set up under this Act are “not bound by the rules of evidence and may be informed on any matter in any manner it thinks fit”.

There was an important reason why the Australian Act was drafted in the way it was. The reason was that if it went further it would be unconstitutional, since it would have a bridged the historic principles relation to address.

If one reads the voluminous report of the PSC in the Chief Justice Shriani Bandaranayake’s case, all the requirements set out in the new Australian Act seem to have been fulfilled, except one (giving her an opportunity to see the final report) because the defendant and her lawyers walked out of the proceedings.

If ever it was argued in the UK Parliament that the Latimer Principles extended to an address, the proponents would be laughed out of court. This is the opinion Dr Cooray expressed to me. Why the Australian Act was drafted the way it was, because if anything more was added it would be contrary to the address provision in the Constitution.

In the UK and also in other countries judges maintain high standards and resign if they violate given standards. Therefore impeachment is not common.

Article 107(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978 enacts:
“Every Judge shall hold office during good behavior, and shall not be removed except by an order of the president made after an address of parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehavior or incapacity:…”
The word “address” and power to Parliament for dismissal of a superior court judge was used first in the Act of Settlement of 1701.

Under the present Constitution what is required is an address by Parliament and an order by the President, which follows the principle in the Act of Settlement, 1701 and re-enacted in same wording more recently, as stated above. Many countries all over the world have adopted this principle.

The words “address” and “Parliament” raise immediate connections with the Westminster constitutional system. A fundamental and elementary principle which extends to all Parliaments, and also the Senate and the House of Representatives in United States is that the internal procedures of Parliament are not justiciable. They are not subject to judicial review. The procedure of legislation is not justiciable, unless there is a mandatory constitutional provision. The workings of Parliament including proceedings of Parliament are not justiciable and cannot be subject to judicial review. Judicial review is for completed legislative and executive action.

The functioning of a Parliamentary Committee can never be the subject of judicial review. A Parliamentary Committee is not bound to follow principles of natural justice. This is both a fundamental and an elementary principle of constitutional law. This topic is analysed in Dr. Cooray’s books Reflections on the Constitution and the Constituent Assembly and Constitutional Government in Sri Lanka 1796-1977.

Wherever the concept of dismissal through address has been adopted, all over the world, it has been regarded as a matter between head of state and the legislature.

The consequence is that the dismissal of a judge is dependent on (i) an address by Parliament and (ii) an order of the President or Head of State. That is the top line and the bottom line.

Each MP makes up his mind on evidence available and exercises his vote. The President makes up his mind and proclaims the order or does not do so.

There is a clear constitutional principle, which is explained in this writing and earlier published books and other writings. The conclusion is that the internal affairs of Parliament cannot be questioned in a court of law. Where there is legislation the Courts cannot (HAVE NO POWER) to go beyond the Speaker’s certificate. The internal affairs of Parliament are not justiciable. This is so even if there is clear error in the Certificate of the Speaker. Only Parliament through the Speaker can make a correction.

The assent of the Head of State to what Parliament has decided on the basis of the Speaker’s certificate is not justiciable. “Justiciable” means that the matter cannot be raised or taken up in a court of law.

Principles of judicial review and natural justice are irrelevant.
Where legislation has been enacted, the words of the Act may be examined and reviewed by the Courts, PROVIDED THERE ARE ARTICLES IN THE CONSTITUTION FOR REVEIW. But the procedure of legislation may not be questioned.
This is a principle of British constitutional law. The United States have adopted the same principle and use the phrase “justiciable” and “non justiciable”.
Parliament COLLECTIVELY AS A WHOLE, on whom the responsibility of submitting an address to the President falls, DOES NOT DECIDE.
The PSC “investigated” and “reported” on the allegations. These are the words used in Article 107 and section 78A. The PSC did not DECIDE. If the PSC decided it would be ultra vires.

The procedure is for each MP to examine the evidence and make his/her own decision and vote. She/he is not bound by the report. The collective will of Parliament emerges from the final votes of individual members of Parliament.

A natural justice based hearing or judicial inquiry is not consistent with the concept of an “address”, in terms of practice in the UK, the US and other countries, as detailed above.

The PSC was asked to do a difficult job. The difficulty arose from the concept of dismissal through an “address”.
Where the concept of “address” arises it provides no scope for natural justice, judicial review or judicial power.
The difficulty of the task of the PSC came from the Constitution and a hastily inserted provision through standing orders introduced by the J.R. Jayewardene’s Government.

The report and investigation of the PSC is not binding on Parliament or President. It gives information for guidance of individual Parliamentarians.

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