Radical changes in the Judiciary

New draft constitution - Part 4

By C. A. Chandraprema-August 7, 2018, 12:00 pm 

(Continued from last Monday)

A completely new feature of the proposed draft constitution is the 55 member-second chamber of Parliament. Each of the nine Provincial Councils will nominate five of its members to sit in this second chamber. Other than the Chief Minister who will be an ex officio member of the second chamber, the other four nominees of the provincial council should not be members of the provincial board of ministers. These nominees of the provincial councils will hold office for the duration of their Provincial Council. The PCs also have the power of recall over their nominees to the second chamber. The remaining ten members of the second chamber will be nominated by Parliament from among persons of ‘eminence and integrity’ who have distinguished themselves in public or professional life.

Another new feature envisaged in the draft constitution is the restoration of by-elections. If the seat of a Member elected from a constituency falls vacant, a by-election will have to be held. In the event of a vacancy occurring in a provincial or national list seat, the next person on the respective list submitted by the relevant party will be declared appointed to Parliament by the Elections Commission. While the 19th Amendment prohibited dual citizens from contesting elections, the proposed draft constitution seeks to take this one step further by bringin in the additional requirement that a dual citizen wishing to contest an election in Sri Lanka will have to relinquish his foreign citizenship at least 12 months prior to tendering nominations for an election! It is only too plain that this is an attempt to prevent either Gotabhaya Rajapaksa or Basil Rajapaksa from contesting the 2019 Presidential election or the 2020 Parliamentary election.

Another novel feature in this draft constitution is that a candidate at a parliamentary election will be able to contest an electoral constituency while also appearing on the provincial PR list as well as the National List submitted by a party. The present government has a tendency to tailor the constitution to suit the needs of individuals in the government or to keep individuals in the opposition out of the running and it is obvious that this particular provision allowing candidates to appear as candidates in constituencies as well as on the PR list and the national list has been brought in with a view to bringing the favourites of the party leader into Parliament by any means available. Such provisions only goes to show the real motives behind this entire constitution making process.

Supreme Court supreme no more

The judiciary is to undergo some radical changes according to the provisions of the proposed draft constitution. A Constitutional Court is to be established to exercise the Constitutional jurisdiction exercised at present by the Supreme Court. The proposed Constitutional Court is to have a President and six other members who will be appointed by the President on the recommendation of the Constitutional Council. Those appointed to the proposed Constitutional Court are to be persons who have distinguished themselves in the judiciary, legal practice or legal education with specialized knowledge or experience in constitutional law. Members of the Constitutional Court are to be appointed for a term of five years and will be eligible for reappointment. The Constitutional Court is to exercise jurisdiction over interpretation of the Constitution, the Judicial Review of Bills; Judicial Review of Laws & Statutes and Jurisdiction regarding disputes between the Central Government and Provinces. Whenever any question arises in proceedings in any other court on a matter coming under the jurisdiction of the Constitutional court, it will have to be referred to the Constitutional Court. The Constitutional Court is to have sole jurisdiction to determine whether any provision of a Bill requires to be approved by the People at a Referendum.

The jurisdiction of the Constitutional Court to determine any such question may be invoked by any citizen by a petition addressed to the Court and there will be no time limit within which such a reference has to be made. We pointed out in a previous article that one of the new features that the draft constitution proposes to introduce is the judicial review of legislation. The age of retirement of Judges of the Supreme Court and Court of Appeal shall be sixty-five years. Like many other things in the present government’s constitution making process, this Constitutional Court also seems to be tailored to suit certain individuals.

There is no age limit for those sitting on the Constitutional Court. They are to be appointed for a five year term and can be reappointed. Furthermore, members of the Constitutional Court need not be members of the judiciary. Those who have been in ‘legal practice’ or ‘legal education’ with ‘specialized knowledge or experience in constitutional law’ can also be appointed to the Constitutional Court. One gets the distinct impression that some of those involved in drafting the new constitution are trying to create sinecures for themselves to spend their retirement. If such doubts are to be dispelled, there should be a transitional provision in the new constitution which says that nobody even remotely connected with the present constitutional reform process will be eligible for appointment to the Constitutional Court.

The process for the removal of judges of the superior courts is also to be changed. Under the provisions of the draft Constitution, it is the Constitutional Council that will have the power to entertain complaints regarding any judge of the Constitutional Court, Supreme Court or Court of Appeal. If the Constitutional Council finds a prima facie case to have been established against the judge concerned, the Constitutional Council shall refer the allegations to a Panel of three former Judges of the Constitutional Court, Supreme Court or Court of Appeal appointed by the Constitutional Council for that purpose, who shall inquire into the allegations. In the case of an inquiry into the President of the Constitutional Court or the Chief Justice, the Panel shall comprise sitting or former Judges of the highest court in any other Commonwealth state. This Panel will inquire into the allegations and report to the Constitutional Council.

Where a finding of misconduct, incapacity or intentional violation of the Constitution is arrived at, the Panel shall communicate such finding to the Constitutional Council with a recommendation that the Judge be removed. Where the Panel recommends removal of the judge, the Constitutional Council shall refer such case to Parliament and Parliament may thereafter, by a resolution passed by a simple majority of the whole number of Members of Parliament request the President to remove the Judge. Upon receipt of such a resolution the President shall remove such Judge. The requirement that when the conduct of the President of the Constitutional Court or the Chief Justice is being inquired into, the Panel will have to be made up of retired or serving judges from foreign countries will be widely questioned. No self-respecting nation will place an impeachment process under a panel of judges from foreign countries.

Foreigners to decide ondismissing top judges

Promoters of the present constitution may say that when Sirima Bandaranaike appointed a Commission of Inquiry to look into the assassination of her husband, she appointed two foreign judges from Egypt and Ghana to serve on it. But that was only a fact finding commission, not a panel tasked with recommending the removal of the highest ranking judge and the second highest ranking judge from office. Since the President of a Court of law is only a first among equals, one would think that a Panel appointed from among retired Supreme Court judges by the Constitutional Council would suffice for the purpose as the case of other judges of the same courts. Those who drafted these proposals seem to even mistrust the Constitutional Council they advocate so ardently when it comes to the removal of the two highest ranking judges. In this case, the mistrust is such that decision making power is to be given to complete foreigners. This is a country that does not allow good Sri Lankans who have obtained dual citizenship even to contest elections. Yet the removal of our two highest judicial officers is to be entrusted to complete foreigners who may never have set foot in Sri Lanka earlier!

No retired Judge of the Supreme Court or Court of Appeal may accept any paid or unpaid function in the State sector within two years of his retirement or resignation as a Judge, other than in the training of other Judges or academia. It is interesting to note that the Judges of the Constitutional Court are not burdened with this restriction which means that a judge after serving his five year term on the Constitutional Court, can accept a state sector position – a sure way of ensuring that the judges of the Constitutional Court will always be looking for ways to ingratiate themselves with the government of the day for them to obtain a sinecure after completing their tenure in the Constitutional Court. As we pointed out earlier, one of the purposes of the draft constitution seems to be to provide well paid retirement jobs for its promoters.

After the creation of the Constitutional Court, the Supreme Court will continue to have final appellate jurisdiction in civil and criminal matters, but it will no longer be the highest Court in the land because it will be subject to the jurisdiction of the Constitutional Court. Another major change proposed is that the fundamental rights jurisdiction currently exercised by the Supreme Court will be transferred to the Court of Appeal. It has further been proposed that the composition of the Judicial Services Commission which at present comprises of the Chief Justice and two other judges of the Supreme Court be changed to comprise of the Chief Justice, one other judge of the Supreme Court and the President of the Court of Appeal. The Judicial Services Commission is tasked with the appointment, transfer, dismissal and disciplinary control of judicial officers of the High Court downwards, and of public officers serving as Registrars and other senior officers of the Courts system. Given the change in the status of the Supreme Court that is envisaged in the draft constitution, in a way, there seems to be nothing wrong in the President of the Court of Appeal sitting on the Judicial Services Commission.

There is a provision in the draft constitution which says that in making recommendations for appointments to the office of President of the Constitutional Court, the Chief Justice, President of the Court of Appeal and every other Judge of the Constitutional Court, Supreme Court and Court of Appeal, the Constitutional Council shall consult judges of the superior courts including the judge being replaced, the Attorney General, the President of the Bar Association and any other relevant person. Even when the President was the sole authority in making appointments to high judicial office informal consultations were always made. The very persons who were thus consulted by former Presidents would have been people like sitting and former judges of the Supreme Court, the AG and President of the BASL. However by introducing a constitutional provision to the effect that the Constitutional Council is mandatorily required to consult such individuals before making recommendations for high judicial office, patron-client relationships may be built up over a period of time between those being consulted and the appointees to high judicial office. Since the President of the BASL will have a say in appointing the very judges that he will be appearing before, there will also be an inbuilt conflict of interest in this matter. A more suitable course of action may be to allow the Constitutional Council to make informal inquiries at their own discretion as they obviously do at present.

(To be continued)