by Thushara Rajasinghe
Removal Of Judges; A Comparative Review Of The Procedures Of Sri Lanka, India, Singapore And New Zealand
The Parliament Select Committee (PSC) appointed to probe the allegations leveled against the present Chief Justice of Sri Lanka commenced its proceedings on the 23rd of November 2012. Meanwhile numbers of prominent professionals have invoked the jurisdiction of the Court of Appeal seeking orders in the nature of writ of prohibition against the PSC challenging the constitutionality of the PSC and its procedures. These petitions are now before the Supreme Court to determine the constitutionality of Article 107 (3) of the Constitution and Standing Order No. 78A. These developments derived from the move to impeach the present Chief Justice of Sri Lanka have sparked a very important and constructive intellectual discussions, apparently sidelining some of the politically and personal affiliation rhetoric over the present impeachment process.
Independence of the Judiciary is one the main cornerstones of a vibrant and dynamic democracy It holds a significant position within the wheels of the democracy. Unlike other two main organs of the government, the judges of the Judiciary are appointed officers but not elected representatives of the people. It is the organ of governance entrusted the exercise of the judicial power of the People. The appointment and the removal of the judges to and from their respective office is highly delicate and sensitive process. Both these processes of appointment and the removal should be done with great amount of fairness and openness as it manifestly affects the independence of the Judiciary. It is evident that most of the democracies in the world have guaranteed the tenure of the office of the judges without any disturbance and they could only be removed on the grounds of proven misbehavior or incapacity through a special process established under constitution which is the paramount law of the land.
On other hand the Judges are also required to maintain not only a high standard of judicial conduct and behavior but also their personal lives. The judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. Expanding the scope of judicial conduct, “the Bangalore Principles of Judicial Conduct 2002” which was adopted in Hague by “the Judicial Group on Strengthening Judicial Integrity” stipulates that a judge shall not allow the judge’s family, social or other relationships improperly to influence the judge’s judicial conduct and judgment as a judge and also Judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge’s family or of anyone else, nor shall a judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the judge in the performance of judicial duties[i].
Bearing in mind the need of a competent, independent, and an impartial judiciary and also the high level of integrity, official and personal conduct of the judges, the process of removal of the judge from his or her office should be a process embodied with a high level of fairness and transparency. A fair and just adjudicating process is required to fully adhere the principles of “ Nemo iudex in causa sua” ( no one should be judge in their own case) and “Audi alteram partem” ( both parties should be heard) in order to ensure the process is not paralyzed with actual or imputed bias.
In view of such a high level of fairness and openness in the process of removal of a judge from his or her office on the grounds of proven misbehavior and incapacity; this is a timely effort to comparatively review the process of removal of judges in the highest court in Sri Lanka with three leading Commonwealth jurisdictions of India, Singapore and New Zealand.
All these four jurisdictions which are under review of this paper have recognized the independence of judiciary by stipulating that every judge appointed shall not be removed except from the stipulated procedure under their respective constitutions[ii]. Article 107 (2) of the Constitution of Sri Lanka and Article 124 (4) of the Indian Constitution state that Judges of the highest court of record could be removed by the order of the President made after address of parliament (in the case of India each house of parliament) supported by a majority of the total number of members of parliament has been presented to the President for such removal on the grounds of proved misbehavior or incapacity. Section 23 of the Constitution Act of
1986 of New Zealand states that A Judge of the High Court shall not be removed from office except by the Sovereign or the Governor-General, acting upon an address of the House of Representatives, which address may be moved only on the grounds of that Judge’s misbehaviour or of that Judge’s incapacity to discharge the functions of that Judge’s office.
The procedure adopted in Singapore is not similar to the rest of the jurisdictions under review of this paper, wherein the Prime Minister, or the Chief Justice after consulting the Prime Minister, represents to the President that a Judge of the Supreme Court ought to be removed on the ground of misbehavior or of inability, from infirmity of body or mind or any other cause, to properly discharge the functions of his office[iii].
The Article 107 (3) of the Constitution of Sri Lanka and Article 124 (5) of the Indian Constitution provide the appropriate procedure to be adopted for the presentation of an address and for the investigation and proof of such alleged misbehavior or incapacity of a judge. However the article 107 (3) is noticeably differ from Article 124 (5) of the Indian Constitution whereas the article 124 (5) has only conferred the Parliament of India to regulate the procedure of presentation, investigation and proof of such address according to an enacted law of the Parliament which is the Judges (Inquiry) Act of 1968. The Sri Lankan Parliament is given a wider scope to regulate the presentation and the investigation of such address either by law enacted by Parliament or by Standing Orders of the Parliament. So far the Parliament of Sri Lanka has not enacted such law regulating such procedure and opted to rely on Standing order 78A of the Parliament Standing Orders.
Article 98 of the Constitution of the Singapore deals with the procedure to investigate the presentation made to the President in relation to the removal of a judge pursuant to Article 98 (1). On par with the Indian approach “the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2004” provides the procedure for investigation to remove a judge on the grounds stipulated in section 23 of the Constitution Act of New Zealand.
Section 3 (2) of the Judges (Inquiry) Act of 1968 of India empowers the Speaker of the House of the People ( Lok Sabha) or the Chairman of the Council of State ( Rajya Shaba) and/or Speaker and the Chairman in joint consultation as the case may be to appoint a committee of three members to investigate into the alleged misbehavior or
incapacity of a judge. The three member committee shall comprise one from among the chief justice or other judges of the Supreme Court, one from among the chief justices of the High Courts, and one person who is in the opinion of the Speaker or the Chairman as the case may be a distinguished jurist.
President of the Republic of Singapore shall appoint a tribunal which consist with not less than five persons and refer the presentation made to him by the Prime Minister or the Chief Justice as the case may be to investigate the same[iv]. In pursuant to Article 98 (4) of the Constitution, the tribunal shall consist with the persons who hold or have held the office as a judge of the supreme court of Singapore. The president is given an optional approach under the Article 98 (4) to appoint a person who holds or have held equivalent office as a judge of Supreme Court of Singapore in any part of Commonwealth if it appears to the President expedient to make such appointment.
Under the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2006 of New Zealand (hereinafter refers as Judicial Conduct Act), a Commissioner is appointed to the office of the Judicial Conduct Commissioner by the Governor General on the recommendation of the House of Representatives. Prior to such recommendation by the House of Representatives, the Attorney General (it should be noteworthy to understand the office of Attorney General is a political office and he is a member of the parliament) must consult the Chief Justice about the proposed recommendation and inform the parliament accordingly[v]. The functions and the powers of the Commissioner under the Act are to receive complaints about judges and deal with them, to conduct preliminary examinations of complaints, and in appropriate cases, to recommend to the Attorney-General that a Judicial Conduct Panel be appointed to inquire into any matter or matters concerning the conduct of a Judge.
If the Commissioner recommend the Attorney-General that a judicial Conduct Panel be appointed to inquire, the Attorney-General may appoint such a panel pursuant to Section 21 of the Act. It is noteworthy to mention that to appoint such a panel is a discretionary power of the Attorney General. Prior to the appointment of the Panel the Attorney-General must consult the Chief Justice about the proposed membership of the panel, but should not consult the Chief Justice whether the Penal should be appointed. If the alleged misconduct is in respect of the Chief Justice, the Attorney- General must consult the next senior most judge of the Supreme Court[vi]. The Attorney-General subsequent to consultation with the Chief Justice or a senior most Judge of the Supreme Court as the case may be, then appoint a 3 Member Judicial Conduct Panel pursuant to Section 22 of the Act. Two of them must be from the judges of the Supreme Court, retired judges of the Supreme Court or a Barrister or Solicitor who have held the practicing certificate for not less than seven years. Other member of the Panel must be a lay person who is not a judge, retired judge or a Barrister or Solicitor.
Coming back to Standing Order 78A (2) of the of the Parliament of Sri Lanka, it states that the Speaker shall appoint a Select Committee of Parliament consisting of not less than seven Members to investigate and report to Parliament on the allegations of misbehavior or incapacity set out in such resolution. The appointment of the Parliament Select Committee consisting of Members of the Parliament to investigate the allegation is remarkably different from the adopted procedures of other three Commonwealth countries under review of this paper.
The three member committee appointed under Section 3 (2) of the Judges (Inquiry) Act of 1968 of India shall have power of civil court under the Civil Procedure Code of
1908 to summon, enforce the attendant of persons, discovery and production of documents, receive evidence of oaths, issue commission for examination of witnesses and documents[vii]. The committee shall frame the charges against the judge on the basis of which the investigation is proposed to be held and serve the same with all other material statements on which the charges are based on to the Judge in concern and shall give him a reasonable opportunity of presenting a written statement of defence. The Committee shall have power to regulate its own procedures in making an investigation and shall give reasonable opportunity to the judge for cross examination of the witnesses, adduce evidence, and of being heard his defence. The Central Government if required by the Speaker or the Chairman as the case may be could appoint an advocate to conduct the case against the judge[viii].
Likewise in India, The Judge who is the subject of the inquiry by a Judicial Conduct Panel is entitled to appear and be heard at the hearing and to be represented by counsel. The Judge’s reasonable costs of representation in respect of the inquiry must be met by the office of the Commissioner[ix]. The section 26 of the Act specifically states that the Penal has and may exercise the same powers as are conferred on Commissions of Inquiry by sections 4 and 4B to 8 of the Commissions of Inquiry Act
1908. Furthermore, the Penal must act in accordance with the principles of Natural Justice[x]. A noteworthy feature in the proceeding of the Panel is that the Attorney General must appoint and instruct a person to act as special counsel in an inquiry by a Judicial Conduct Panel. At the hearing, the special counsel must present the allegations about the conduct of the Judge concerned, and may only make submissions on questions of procedure or applicable law that are raised during the proceedings. The special counsel must perform his or her duties impartially and in accordance with the public interest[xi].
In line with the approaches adopted by India and New Zealand, 78A (3) of the Standing Order requires the Parliament Select Committee to transmit to the Judge whose alleged misbehaviour or incapacity is the subject of its investigation, a copy of the allegations of misbehaviour or incapacity made against such Judge and set out in the resolution pursuant to such Select Committee was appointed, and shall require such Judge to make a written statement of defence within such period as may be specified by it. The Judge shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce evidence, oral or documentary, in disproof of the allegations made against him.
In conclusion of this comparative review, it could be found that the salient different feature of the procedure adopted in Sri Lanka is that the Parliament of Sri Lanka has entrusted the Parliament Select Committee consisting Members of Parliament to investigate the allegation against the Judge. Whereas, India, New Zealand and Singapore have entrusted such responsibility with a committee or a tribunal consisting of Judges of Supreme Court, Retired Judges of Supreme Court, Prominent lawyers and jurists. New Zealand has gone further by including a lay person to the Panel which is entrusted to investigate the alleged misconduct or incapacity of the Judge.
[i] Principle 4.8, 4.9. of the Bangalore Principles of Judicial Conduct 2002,
[ii] Article 107 (2) of the Constitution of Sri Lanka, , Article 124 (4) and 217 (1) of Indian constitution, Article 98 (1) of the Singapore Constitution, and Section 23 of the Constitution Act of 1986 of New Zealand
[iii] Article 98 (3) of the Constitution of Singapore, [iv] Article 98 (4) of the Constitution of Singapore,
[v] Section 7 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2006
[vi] Section 21 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2006,
[vii] Section 5 of the Judges (Inquiry) Act of 1968, [viii] Section 3 (9) of the Judges (Inquiry) Act of 1968,
[ix] Section 27 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act
of 2006,
[x] Section 26 (3) of the Judicial Conduct Commissioner and Judicial Conduct Panel
Act of 2006,
[xi] Section 28 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2006,
Removal Of Judges; A Comparative Review Of The Procedures Of Sri Lanka, India, Singapore And New Zealand
The Parliament Select Committee (PSC) appointed to probe the allegations leveled against the present Chief Justice of Sri Lanka commenced its proceedings on the 23rd of November 2012. Meanwhile numbers of prominent professionals have invoked the jurisdiction of the Court of Appeal seeking orders in the nature of writ of prohibition against the PSC challenging the constitutionality of the PSC and its procedures. These petitions are now before the Supreme Court to determine the constitutionality of Article 107 (3) of the Constitution and Standing Order No. 78A. These developments derived from the move to impeach the present Chief Justice of Sri Lanka have sparked a very important and constructive intellectual discussions, apparently sidelining some of the politically and personal affiliation rhetoric over the present impeachment process.
Independence of the Judiciary is one the main cornerstones of a vibrant and dynamic democracy It holds a significant position within the wheels of the democracy. Unlike other two main organs of the government, the judges of the Judiciary are appointed officers but not elected representatives of the people. It is the organ of governance entrusted the exercise of the judicial power of the People. The appointment and the removal of the judges to and from their respective office is highly delicate and sensitive process. Both these processes of appointment and the removal should be done with great amount of fairness and openness as it manifestly affects the independence of the Judiciary. It is evident that most of the democracies in the world have guaranteed the tenure of the office of the judges without any disturbance and they could only be removed on the grounds of proven misbehavior or incapacity through a special process established under constitution which is the paramount law of the land.
On other hand the Judges are also required to maintain not only a high standard of judicial conduct and behavior but also their personal lives. The judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. Expanding the scope of judicial conduct, “the Bangalore Principles of Judicial Conduct 2002” which was adopted in Hague by “the Judicial Group on Strengthening Judicial Integrity” stipulates that a judge shall not allow the judge’s family, social or other relationships improperly to influence the judge’s judicial conduct and judgment as a judge and also Judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge’s family or of anyone else, nor shall a judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the judge in the performance of judicial duties[i].
Bearing in mind the need of a competent, independent, and an impartial judiciary and also the high level of integrity, official and personal conduct of the judges, the process of removal of the judge from his or her office should be a process embodied with a high level of fairness and transparency. A fair and just adjudicating process is required to fully adhere the principles of “ Nemo iudex in causa sua” ( no one should be judge in their own case) and “Audi alteram partem” ( both parties should be heard) in order to ensure the process is not paralyzed with actual or imputed bias.
In view of such a high level of fairness and openness in the process of removal of a judge from his or her office on the grounds of proven misbehavior and incapacity; this is a timely effort to comparatively review the process of removal of judges in the highest court in Sri Lanka with three leading Commonwealth jurisdictions of India, Singapore and New Zealand.
All these four jurisdictions which are under review of this paper have recognized the independence of judiciary by stipulating that every judge appointed shall not be removed except from the stipulated procedure under their respective constitutions[ii]. Article 107 (2) of the Constitution of Sri Lanka and Article 124 (4) of the Indian Constitution state that Judges of the highest court of record could be removed by the order of the President made after address of parliament (in the case of India each house of parliament) supported by a majority of the total number of members of parliament has been presented to the President for such removal on the grounds of proved misbehavior or incapacity. Section 23 of the Constitution Act of
1986 of New Zealand states that A Judge of the High Court shall not be removed from office except by the Sovereign or the Governor-General, acting upon an address of the House of Representatives, which address may be moved only on the grounds of that Judge’s misbehaviour or of that Judge’s incapacity to discharge the functions of that Judge’s office.
The procedure adopted in Singapore is not similar to the rest of the jurisdictions under review of this paper, wherein the Prime Minister, or the Chief Justice after consulting the Prime Minister, represents to the President that a Judge of the Supreme Court ought to be removed on the ground of misbehavior or of inability, from infirmity of body or mind or any other cause, to properly discharge the functions of his office[iii].
The Article 107 (3) of the Constitution of Sri Lanka and Article 124 (5) of the Indian Constitution provide the appropriate procedure to be adopted for the presentation of an address and for the investigation and proof of such alleged misbehavior or incapacity of a judge. However the article 107 (3) is noticeably differ from Article 124 (5) of the Indian Constitution whereas the article 124 (5) has only conferred the Parliament of India to regulate the procedure of presentation, investigation and proof of such address according to an enacted law of the Parliament which is the Judges (Inquiry) Act of 1968. The Sri Lankan Parliament is given a wider scope to regulate the presentation and the investigation of such address either by law enacted by Parliament or by Standing Orders of the Parliament. So far the Parliament of Sri Lanka has not enacted such law regulating such procedure and opted to rely on Standing order 78A of the Parliament Standing Orders.
Article 98 of the Constitution of the Singapore deals with the procedure to investigate the presentation made to the President in relation to the removal of a judge pursuant to Article 98 (1). On par with the Indian approach “the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2004” provides the procedure for investigation to remove a judge on the grounds stipulated in section 23 of the Constitution Act of New Zealand.
Section 3 (2) of the Judges (Inquiry) Act of 1968 of India empowers the Speaker of the House of the People ( Lok Sabha) or the Chairman of the Council of State ( Rajya Shaba) and/or Speaker and the Chairman in joint consultation as the case may be to appoint a committee of three members to investigate into the alleged misbehavior or
incapacity of a judge. The three member committee shall comprise one from among the chief justice or other judges of the Supreme Court, one from among the chief justices of the High Courts, and one person who is in the opinion of the Speaker or the Chairman as the case may be a distinguished jurist.
President of the Republic of Singapore shall appoint a tribunal which consist with not less than five persons and refer the presentation made to him by the Prime Minister or the Chief Justice as the case may be to investigate the same[iv]. In pursuant to Article 98 (4) of the Constitution, the tribunal shall consist with the persons who hold or have held the office as a judge of the supreme court of Singapore. The president is given an optional approach under the Article 98 (4) to appoint a person who holds or have held equivalent office as a judge of Supreme Court of Singapore in any part of Commonwealth if it appears to the President expedient to make such appointment.
Under the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2006 of New Zealand (hereinafter refers as Judicial Conduct Act), a Commissioner is appointed to the office of the Judicial Conduct Commissioner by the Governor General on the recommendation of the House of Representatives. Prior to such recommendation by the House of Representatives, the Attorney General (it should be noteworthy to understand the office of Attorney General is a political office and he is a member of the parliament) must consult the Chief Justice about the proposed recommendation and inform the parliament accordingly[v]. The functions and the powers of the Commissioner under the Act are to receive complaints about judges and deal with them, to conduct preliminary examinations of complaints, and in appropriate cases, to recommend to the Attorney-General that a Judicial Conduct Panel be appointed to inquire into any matter or matters concerning the conduct of a Judge.
If the Commissioner recommend the Attorney-General that a judicial Conduct Panel be appointed to inquire, the Attorney-General may appoint such a panel pursuant to Section 21 of the Act. It is noteworthy to mention that to appoint such a panel is a discretionary power of the Attorney General. Prior to the appointment of the Panel the Attorney-General must consult the Chief Justice about the proposed membership of the panel, but should not consult the Chief Justice whether the Penal should be appointed. If the alleged misconduct is in respect of the Chief Justice, the Attorney- General must consult the next senior most judge of the Supreme Court[vi]. The Attorney-General subsequent to consultation with the Chief Justice or a senior most Judge of the Supreme Court as the case may be, then appoint a 3 Member Judicial Conduct Panel pursuant to Section 22 of the Act. Two of them must be from the judges of the Supreme Court, retired judges of the Supreme Court or a Barrister or Solicitor who have held the practicing certificate for not less than seven years. Other member of the Panel must be a lay person who is not a judge, retired judge or a Barrister or Solicitor.
Coming back to Standing Order 78A (2) of the of the Parliament of Sri Lanka, it states that the Speaker shall appoint a Select Committee of Parliament consisting of not less than seven Members to investigate and report to Parliament on the allegations of misbehavior or incapacity set out in such resolution. The appointment of the Parliament Select Committee consisting of Members of the Parliament to investigate the allegation is remarkably different from the adopted procedures of other three Commonwealth countries under review of this paper.
The three member committee appointed under Section 3 (2) of the Judges (Inquiry) Act of 1968 of India shall have power of civil court under the Civil Procedure Code of
1908 to summon, enforce the attendant of persons, discovery and production of documents, receive evidence of oaths, issue commission for examination of witnesses and documents[vii]. The committee shall frame the charges against the judge on the basis of which the investigation is proposed to be held and serve the same with all other material statements on which the charges are based on to the Judge in concern and shall give him a reasonable opportunity of presenting a written statement of defence. The Committee shall have power to regulate its own procedures in making an investigation and shall give reasonable opportunity to the judge for cross examination of the witnesses, adduce evidence, and of being heard his defence. The Central Government if required by the Speaker or the Chairman as the case may be could appoint an advocate to conduct the case against the judge[viii].
Likewise in India, The Judge who is the subject of the inquiry by a Judicial Conduct Panel is entitled to appear and be heard at the hearing and to be represented by counsel. The Judge’s reasonable costs of representation in respect of the inquiry must be met by the office of the Commissioner[ix]. The section 26 of the Act specifically states that the Penal has and may exercise the same powers as are conferred on Commissions of Inquiry by sections 4 and 4B to 8 of the Commissions of Inquiry Act
1908. Furthermore, the Penal must act in accordance with the principles of Natural Justice[x]. A noteworthy feature in the proceeding of the Panel is that the Attorney General must appoint and instruct a person to act as special counsel in an inquiry by a Judicial Conduct Panel. At the hearing, the special counsel must present the allegations about the conduct of the Judge concerned, and may only make submissions on questions of procedure or applicable law that are raised during the proceedings. The special counsel must perform his or her duties impartially and in accordance with the public interest[xi].
In line with the approaches adopted by India and New Zealand, 78A (3) of the Standing Order requires the Parliament Select Committee to transmit to the Judge whose alleged misbehaviour or incapacity is the subject of its investigation, a copy of the allegations of misbehaviour or incapacity made against such Judge and set out in the resolution pursuant to such Select Committee was appointed, and shall require such Judge to make a written statement of defence within such period as may be specified by it. The Judge shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce evidence, oral or documentary, in disproof of the allegations made against him.
In conclusion of this comparative review, it could be found that the salient different feature of the procedure adopted in Sri Lanka is that the Parliament of Sri Lanka has entrusted the Parliament Select Committee consisting Members of Parliament to investigate the allegation against the Judge. Whereas, India, New Zealand and Singapore have entrusted such responsibility with a committee or a tribunal consisting of Judges of Supreme Court, Retired Judges of Supreme Court, Prominent lawyers and jurists. New Zealand has gone further by including a lay person to the Panel which is entrusted to investigate the alleged misconduct or incapacity of the Judge.
[i] Principle 4.8, 4.9. of the Bangalore Principles of Judicial Conduct 2002,
[ii] Article 107 (2) of the Constitution of Sri Lanka, , Article 124 (4) and 217 (1) of Indian constitution, Article 98 (1) of the Singapore Constitution, and Section 23 of the Constitution Act of 1986 of New Zealand
[iii] Article 98 (3) of the Constitution of Singapore, [iv] Article 98 (4) of the Constitution of Singapore,
[v] Section 7 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2006
[vi] Section 21 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2006,
[vii] Section 5 of the Judges (Inquiry) Act of 1968, [viii] Section 3 (9) of the Judges (Inquiry) Act of 1968,
[ix] Section 27 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act
of 2006,
[x] Section 26 (3) of the Judicial Conduct Commissioner and Judicial Conduct Panel
Act of 2006,
[xi] Section 28 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2006,
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