Deliberate and biased Interpretation of Article 107 (3) of the Constitution by Court of Appeal and Supreme Court is abuse of power vested in Judiciary.
Posted on January 4th, 2013

 By Charles.S.Perera

It has been  reported that , “the Court of Appeal yesterday said that the proceedings against the Chief Justice, had been initiated by a PSC not established under the law. Therefore, the commencement of the proceedings and the furtherance of such proceedings were prima facie void.”

That decision of the Court of Appeal of Sri Lanka is against all legal norms.  It is biased in favour of the writ application by CJ who had been found guilty of three charges in the Impeachment Motion by the  Constitutionally appointed Special Committee of the Parliament.

If this is the sort of biased judgments that is  meted out by the  Law Courts of Sri Lanka  there is something radically wrong with the Judiciary. The whole legal system in Sri Lanka has to be overhauled re establishing the independence of the Judiciary from the Legislature and the Executive, and the independence of the Legislature and the Executive from the Judiciary.

The Judiciary has no right whatsoever under the Constitution to pass a judgment on the action taken by the legislature-the Parliament on the Impeachment Motion against the CJ.  The Judiciary can interpret the Articles of the Constitution only if a request has been made by the Parliament.

In the first instance the court of appeal,   to which the CJ Shirani Bandaranayaka had submitted a writ application against the  Parliamentary Special Committee,  should not have accepted the writ application  for the reason of conflict of interest and for it having no power over any decision taken by the Parliament.

The Parliament which is representative of the people   takes supremacy over the  Judiciary.  The Parliament passes legislations and the role of the Judiciary is to hear and determine any questions relating to the interpretation of the Constitution  when  requested by the legislature, or  to “other court or tribunal  or other institution  empowered by law to exercise justice “¦..”.

This is provided  in the Constitution under “Constitutional Jurisdiction in the Interpretation of the Constitution.”  Which reads: “125. (1) 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 any such question arises in the course of any proceeding in any other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination of such question.

(2) The Supreme Court shall determine such question within two months of the date of reference and make any such consequential order as the circumstances of the case may require. ”

Chief Justice may have requested the  Court of Appeal to interpret any of the articles of the Constitution and  any of the Standing Orders  of the Parliament, but  the Appeal Court of Sri Lanka should not have accepted such an  application by the CJ.  Because the CJ does not constitute “”¦.other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions”¦.” as specified under Article  125(1) of the Constitutiuon.

The Parliamentary Standing orders are not  rules of law but they are rules only for the correct application of Parliamentary procedures.

 

The Parliamentary Standing Orders are defined as follows: “The Standing Orders of Parliament are the agreed rules under which procedure, debate and the conduct of Members in the House are regulated. The main purpose of the Standing Orders is to prescribe the procedure for the functioning of Parliament in an orderly and meaningful manner. It is the most important source of Parliamentary Procedure and provide ample opportunity for debate and enable decisions to be taken under consideration. The Standing Orders have the status of rules under the Constitution of the Democratic Socialist Republic of Sri Lanka.”

 

There is no  right  according to the provisions of the  Constitution for the Judiciary to interfere into the Parliamentary procedure or interpret the Standing Orders of the Parliament, but if the Appellate Court or the Supreme Courts   take it as a function of the Judiciary to interpret the Standing Orders it amounts to a contempt of the Parliament.  The Judges who had taken such high handed decisions should be removed from officiating as Judges, as they as Judges had failed to understand the Constitution correctly.

 

It would be a  very dangerous precedent enabling the Judiciary to control any action of the Parliament thus assuring the Supremacy of  the Judiciary over the Legislature and the Executive.  Therefore, the trend should be stopped forthwith.

The Supreme Court and Appellate Court Judges have failed  or knowingly made a wrong interpretation  of the  Article 107(3) of the Constitution, which reads:  “107 (3)  Parliament shall by law OR by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative. ”  ( emphasis is mine)

It cannot be ruled out that the Chief Justice, the Judges of the Court of Appeal and the Supreme Court are working in collaboration  for an Agenda of Outside Agencies who are seeking to discredit and destabilise Sri Lanka.

The  statement ” Parliament shall by law or by Standing Orders provide for all matter”¦.”  refers to  what action  the Parliament has to take before  the  President is requested to makes an order to remove the Chief Justice in the present case.

This Standing Order of the Parliament cannot be utilised by the Judiciary to conduct on its own a legal inquiry into the conduct of the Parliament to pronounce a judgment, that the actions taken by the Parliament under  its Standing Orders are prima facie void.

This is an extremely dangerous role the Judiciary is trying to take into its own hand.

In terms of the Constitution the Chief Justice  cannot be removed without an order by the President.  The President makes this order to remove a Judge only  after  the Parliament has addressed the question and  informs the President  of the Charges against the CJ and all relevant matters for the removal of the CJ, and  that the charges  had been debated in  the Parliament  and accepted with an appropriate vote.

The Parliament  in order to  provide the President  such information  to enable him to make the order  for the removal of the Chief Justice, has two options under the Standing Order 78 A .

(1)  is to   resort to a legal inquiry, where the Parliament will request the  Judiciary to inquire into the charges in the Impeachment Motion and send its report to the Parliament through the Speaker who  would present it to the Parliament for a debate , take a vote,  and then submit the relevant matters and the result of the Parliamentary voting  to the President. OR

(2) resort to the Parliament’s own  Standing Order 78A  to appoint a Special Committee of the Parliament to inquire into the Charges in the Impeachment Motion and  provide to the President  ” all matters relating to Impeachment Motion including the investigation and proof of the alleged misbehaviour of the CJ, the result of the Parliamentary debate on the report of the Special Committee of the Parliament  and the  result of the Parliamentary vote on the report.

The Parliament had taken the second option of appointing a Special Committee of the members of the Parliament to  investigate into the Charges, firstly as the first option would not be reliable due to the obvious conflict of interest, and secondly as the inquiry by a Parliamentary Special Committee is a more appropriate procedure for an Impeachment of a Chief Justice.

The procedure finally adopted  is very clear, and is according to the Article 107 (2) of the Constitution which states:  “Every such Judge shall hold office during good behaviour, 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 misbehaviour or incapacity :

Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity. ”

The decision made by the Court of Appeal in Sri Lanka on the writ application submitted by the Chief Justice Shriani Bandaranayaka is null and void and no further action should proceed from the judgement.

But as a serious error had been committed providing a dangerous legal precedent by the Appeal Court and the Supreme Court,  the Judges- N.G.Amaratunga, K.Sripavan, Priyanth Dep, S.Skandharajah and Anil Gunaratne  should be sacked by the President using his Executive Powers.

It is necessary as they have committed an unpardonable error  in taking a wrong  decision without any “detached objectivity” and gave a wrong interpretation of the Parliamentary Standing Orders  and the Article 107(3) of the Constitution of Sri Lanka, thus discrediting the Constitution of  Sri Lanka  and creating a dangerous legal precedent affecting the Constitution of Sri Lanka

2 Responses to “Deliberate and biased Interpretation of Article 107 (3) of the Constitution by Court of Appeal and Supreme Court is abuse of power vested in Judiciary.”

  1. NeelaMahaYoda Says:

    There have been numerous attempts to impeach federal judges in the United States; a few have been successful in either forcing resignation or removing the judge. As of November 2003 there have been sixty-one federal judges or Supreme Court Justices investigated for impeachment.
    Most relevant case similar to CJ’s case in Sri Lanka was that of Judge G. Thomas Porteous Jr. — Eastern District of Louisiana. Judge Porteous, who has not yet been convicted of a crime, but has been recommended for removal by the Judicial Council of the Fifth Circuit for egregious misconduct that included receiving gifts from attorneys who came before him, filing false statements in his personal bankruptcy case, and engaging in fraudulent and deceptive conduct concerning his debts and gambling losses.
    On June 18, 2008 the Judicial Conference of the United States transmitted a certificate[201] to the Speaker of the U.S. House of Representatives expressing the Conference’s determination that consideration of impeachment of Judge Porteous might be warranted. The certificate stated that there was substantial evidence that Judge Porteous “repeatedly committed perjury by signing false financial disclosure forms under oath,” thus concealing “cash and things of value that he solicited and received from lawyers appearing in litigation before him.” In a specific case, “he denied a motion to recuse based on his relationship with lawyers in the case . . and failed to disclose that the lawyers in question had often provided him with cash. Thereafter, while a bench verdict (that is, a verdict by a judge sitting without a jury) was pending, he solicited and received from the lawyers appearing before him illegal gratuities in the form of cash and other things of value,” thus depriving “the public of its right to his honest services.” The certificate concluded that this conduct “constituted an abuse of his judicial office” in violation of the Canons of the Code of Conduct for United States Judges.
    The certificate also stated that there was substantial evidence that Judge Porteous had “repeatedly committed perjury by signing false financial disclosure forms under oath” in connection with his bankruptcy, allowing “him to obtain a discharge of his debts while continuing his lifestyle at the expense of his creditors,” and that he had “made false representations to gain the extension of a bank loan with the intent to defraud the bank.”
    On September 18, 2008, the House Judiciary Committee voted unanimously to proceed with an investigation of the bribery and perjury allegations.[202] On October 15, 2008 House Judiciary Chair John Conyers announced that Alan I. Barron had been hired as Special Counsel[203] to lead an inquiry into Judge Porteous’ impeachment. Representatives Adam Schiff (D-CA) and Bob Goodlatte (R-VA) were designated as Chair and Ranking Member, respectively to lead the task force conducting the inquiry.[203]
    On January 13, 2009, the U.S. House of Representatives passed H.Res. 15 by voice vote, authorizing and directing the Committee on the Judiciary to inquire whether the House should impeach Judge Porteous.[204] The judge tried to get a court to stop the hearing in a lawsuit, but failed(But Our CJ has enough power to manipulate the lawsuit and now trying to stop the whole impeachment process) .
    On January 21, 2010, the task force voted unanimously to recommend four articles of impeachment. The Judiciary Committee, later reported the articles to the House, which adopted them on March 11, 2010.[205]
    An ad hoc Senate committee heard evidence in September and October 2010, and a vote by the full Senate took place on December 8, 2010. Article 1 was passed unanimously, Articles 2 was passed by a vote of 69-27, Article 3 was passed by a vote of 88-8, and Article 4 was passed by a vote of 90 to 6. A further vote to disqualify the former judge from ever holding office again passed by a vote of 94 to 2.[206]

  2. Kit Athul Says:

    NMH, excellent investigative report, but Sri Lanken British Colonial Clowns will understand what you have written? In US we got rid of the British Colonial System 200 years ago. CJ has to be removed soon and this must not drag too long.

Leave a Reply

You must be logged in to post a comment.

 

 


Copyright © 2018 LankaWeb.com. All Rights Reserved. Powered by Wordpress