Judiciary cannot change the Constitution -Part I- Former Chief Justice Sarath N Silva
Posted on January 7th, 2013

An impeachment motion is a disciplinary action : President can remove a SC Judge when impeachment motion is passed in Parliament :

Procedure followed in keeping with the Constitution and Standing Orders :

Judiciary cannot change the Constitution – Former Chief Justice Sarath N Silva

Public Service Commission has the power to take disciplinary action :

An impeachment motion is a disciplinary action :

Q: Controversy surrounds the recent determination of the Supreme Court. You have a wide knowledge on the judiciary. What is the due process to bring an impeachment motion against the Chief Justice or a Supreme Court Judge?

A: What you are saying is correct. There had been impeachment motions even in the past and even against me. But those did not receive public interest. Those were solved at that level. The most important thing is there should only be a Parliamentary procedure in this regard. The extraordinary fact we now have is that there is a judicial procedure parallel to the Parliamentary procedure. Then the public have to consider both these. A few days ago, the matter was before the Judiciary and before that it was before Parliament. This has led to some confusion.

That is why even I also decided to participate in this programme. This confusion is not good for the country, the Judiciary and Parliament. Therefore, the public must be educated on the reality.

An impeachment motion is a disciplinary action. You also serve an institution. I also served for 41 years. All who work, from the rank of the Chief Justice to a lowest grade employee, have to agree to service contracts. There is an employer and an employee in a service contract. The government is the employer when it comes to the public service. The Public Service Commission has the power in the public service. It is this committee which appoints and takes disciplinary action.

There are several levels in the judiciary. The lower level is comprised of Magistrates, Primary judges and District Court judges.

The Judicial Service Commission (JSC) has the power to appoint them.

The next level is comprised of High Court judges. The President and the JSC have the power with regard to them. The President appoints them according to the recommendations of the JSC. But even the President has a choice. Even the disciplinary action is taken according to the JSC recommendations. The President has the power to neglect them as well. There had been instances of such things happening in the history.

The disciplinary power lies with Parliament, but not entirely. The President can remove a Superior Court Judge when an impeachment motion is passed in Parliament with a simple majority. The President is the officer in charge of the appointment and well as removal. Parliament puts the impeachment process in between. This procedure is followed in many countries of the world, including the UK. In UK there are two parliamentary boards. The judges in Superior courts are removed once the resolutions against them are passed in those two boards. Sri Lanka too followed this method in the past. According to the 1948 Constitution, the Governor or the President removed a Superior Court Judge once a resolution was passed.

One more fact was added to this procedure under the 1978 Constitution. That is Article 107 of the Constitution. There are regulations as to how to conduct a parliamentary investigation on the charges. According to Article 107 (3) of the 1978 Constitution, Parliament should compile a procedure to investigate on the impeachment. It can be done under a law or standing orders. Parliament has a choice either to compile a law or Standing Orders with regard to impeachment procedure.

When the impeachment motion against Neville Samarakoon was presented, it was understood that a law or Standing Orders with regard to impeachment procedure were lacking.

Then Parliament compiled Standing Orders in this regard in April 1984. This Standing Order has been operational for 30 years now since 1978. The Impeachment motions against Neville Samarakoon and three more Superior Court Judges were investigated under these Standing Orders. This is the present context. The method to present an impeachment motion is set out in the Standing Orders. According to the Constitution, the impeachment motion should be signed at least by one third of the Members in Parliament. The charges should also be mentioned in it. This is a procedure basically to educate Parliament rather than making a complaint. They educate Parliament about the charges. Thereafter, the Speaker should direct the investigation to a Parliamentary Select Committee (PSC) according to the Standing Orders.

Q: So the Speaker appoints the PSC under the Standing Orders?

A: Until the issue reaches the Speaker, it should be dealt under the Constitution. From that point onwards, the Standing Orders apply with the appointment of the PSC. The Speaker appoints the PSC, as he would appoint any other PSC. The representation in it is based on the strength of the parties in Parliament. That means a greater share will be for the government. The membership of the PSC is decided on the composition of Parliament. Accordingly, 11 members have been appointed to it. Seven among them are from the government, two from the main opposition party and one each from other opposition parties. So until this stage, the procedure which was followed on the above mentioned Standing Orders. So, we can clearly see that this procedure followed was in keeping with the Constitution and the Standing Orders.

Q: Does the Chief Justice have the right to clarify facts before the PSC to counter the charges made against her ?

A: According to the Standing orders, the Chief Justice can present facts during this investigation. Even the representation of lawyers on her behalf is allowed. If required she can be absent while having her lawyers represent her. These things are very clearly mentioned in Standing Orders.

Q: When considering this particular matter, has the impeachment investigation proceeded in a proper manner?

A: Yes. It has. The presentation of the motion, the signing by one third, and mentioning of the charges were duly done. As I see, facts with regard to 14 charges had clearly been mentioned.

Q: How do you see this situation?

A: There is an another angle in this. As soon as the Parliamentary proceedings get started with regard to this mater, some sections of lawyers, like Chandra Jayarathna filed a case before the Court of Appeal in parallel to the proceedings. In return, the Court of Appeal gave a verdict requesting an interpretation of Article 107/3 of the Constitution by the Supreme Court.

Subsequently, the Supreme Court informed Parliament that the proceedings would be stopped until the hearings of the case were finished. This was the place where the dispute was created. The statement of the CJ’s lawyer before the PSC was to stop the inquiry as per with the Supreme Court order. Then, the PSC had turned down it highlighting that investigations were carried out under the Standing Orders and they were bound by Parliament to finish inquiries and submit the report within one month.

Then, the problem was mooted. But CJ’s lawyers did not quit in that moment.

Q: It means if the proceedings were to be stopped in that manner can the Supreme Court do this?

A: As far as I can see, there is no any room for any interference by the Supreme Court in keeping with the constitution. The

Interference of the Supreme Court was witnessed when the case was being heard before the Courts of Appeal. No provisions have been given to the Court of Appeal in this regard. Under such circumstances, the Court of Appeal has to function in line with Article 140 of the Constitution. It has been vested with the power to issue a Writ of Certiorari in such situations.

These are the complicated terms which are available in Latin language in the Constitution. In Britain, these old-fashioned Writ applications were issued by the Board of the Queen or King according to English law. These were not available in the Constitution until now. These were found under normal Law in the 1948 and 1972 Constitutions. Subsequently, this was added to the 1978 Constitution under the Courts Act.

This power was given to the Court of Appeal with two restrictions in in Article 140 in issuing writ applications that should be compatible with the constitution and the law. The term, “law” has been clearly mentioned there. Now it has been interpreted in Article 170 of the Constitution.

Law means a law imposed by either Parliament or Constitutional Board. But it should have the power to create the constitution. Only Parliament is relevant in this regard though no law has been imposed on this yet since 1978.

The same problem arose when I was in the Attorney General’s Department in the 1980s. We didn’t oppose it and continued the old system. The old system was the verdict given by the court of Great Britain.That’s what we called ” Common Law”. We also functioned in the same manner which was convenient. We also achieved the same development as experienced by England. We confronted no problem in doing that. According to English law, no where have we found a court that had given verdicts against Parliament. It was due to the fact that the English law was developed preventing clashes between various institutions. That law was developed for centuries in the same manner.

No court in England had issued a Writ of Certiorari to a Speaker or Parliament. Do the courts have the power to issue an order against the Speaker or Parliament? Because this has been clearly mentioned in Article 140 of the Constitution that this should be implemented according to the law.

Q:Former Speaker Anura Bandaranaike made a clear statement in this regard during your tenure?

A: It was about fundamental Human Rights. The breaching of HR is mentioned in Article 126 only with reference to Executive or administrative affairs. No Parliamentary proceedings were mentioned in this regard. No body can file a petition against Parliament claiming that their basic human rights are being violated.

If we take action against an employee of Parliament it becomes an administrative matter. There, we find a Fundamental Rights case.

That’s what happened during Anura Bandaranaike’s period. Then, a group of lawyers filed a case that before appointing a PSC, the Speaker should initiate an inquiry over the matter. The Speaker turning down the order decided that courts had no jurisdiction to give orders to the Speaker.

Then, only I knew the legality of this matter. I was not aware about the facts that they were ready to file a case.

I told them that this would create a dispute. I understood that I would be crushed from both sides and requested them to withdraw the case.

Q: According to your description Parliament can appoint a PSC and probe the charges. On the contrary, the Court of Appeal recently claimed that the PSC was illegal. What is this contradiction ?

A: That is a problem. The Court of Appeal has no jurisdiction to interpretate the constitution. The court of Appeal forwarded this to the Supreme Court expecting an interpretation of the constitution in this regard. The normal procedure was for the Supreme Court to take two months to send the interpretation to the Court of Appeal.

Q: Are you saying this was done with preparation?

A: I cannot mention such while being in the courts. But it seems that there is an order. I am reluctant to use the term” preparation”.

This is being done on an order. The verdict was given before the holiday season. The Court of Appeal was on leave even by yesterday. But the court function on urgent applications even during holidays. But not for the applications of this calibre. I have the verdict with me. I looked at it and find that the investigation was carried out on December 14. It had time up to February 14, 2013. But the decision has been taken on January 1 means the judges had prepared the verdict even during the Christmas vacation. I consider this an important matter. My expectation is to solve the problems of the public with enthusiasm.

I am not making an accusation. I tried my best to expedite cases as much as possible. I was not in a hurry to give verdicts during holidays. I considered holidays as holidays. Only if there was an old case, I would attend to it.

The salient feature of this verdict was this had to be done as an interpretation of the constitution. Whenever any problematic areas

were raised in other courts, those should be forwarded to the Supreme Court as per with the provisions of Article 125. The verdict of

the Supreme court in this regard was critical. There were 28 pages out of which 23 pages were restricted to fundamental matters. If I were in the Supreme Court. I would have stated with honour that cases of former CJ Neville Samarakon and my previous verdicts had no relevancy to his case. Article 107 has no implication in this respect. The verdict which was written in English has mentioned that this was the interpretation of the constitution. But, It is clear, under Article 107/3 has specific obligation how can parliament remove judges from the posts.

In fact, they have not done any interpretation. I, with great respect, would like to tell the supreme Court if any interpretations have been made what did those words mean? What connection did it have? Here there is a serious recommendation that Parliament has a responsibility? In addition, Article 107 of the the Constitution clearly indicates the procedure of the impeachment motion through either Parliamentary powers or Standing Orders. To understand this article, no body wants to be an expert. Here, the Supreme Court has not mentioned any interpretation in this regard.

Q: When the Constitution has clearly mentioned about the procedure how did this interpretation come about?

A: I have also spent for 41 years in this field. I cannot explain it? If I answer your question in a Cricket manner. I can say that I would be bowled. The Supreme Court has used in this article as “by” under lining the word “law” that this should only be done through law. Now, this is a very serious matter.

Only Parliament holds this right. Parliament has the discrepancy to either create a law or form Standing Orders at this juncture as per with Article 107/3. In 1984, Parliament worked with this discrepancy. For almost 30 years, it was mentioned that only Standing Orders would be relevant to this. These Standing Orders were effective from there onwards. Now even Parliament cannot bring a law in this regard though it has the legal provision through the Constitution.

Q: If we practice as per with Standing Orders don’t we have any other methods.

A: There is no other ways. The Supreme Court has mentioned that they don’t take into consideration the Standing Orders. To the

Supreme Court, the Standing Orders were not valued. Now the verdict of the Supreme Court has been made public and we have a right to investigate the verdict. But that should be done only with good mind.

We should do it just to further confirm the supremacy of the law. If the supremacy of the law is violated we should show it. The law should be interpreted in a correct manner. That’s what I am doing.

23 Responses to “Judiciary cannot change the Constitution -Part I- Former Chief Justice Sarath N Silva”

  1. Wickrama Says:

    What a lot of words to say “THE SUPREME COURT HAS DONE A TERRIBLE BLUNDER” ??

  2. Sirih Says:

    I would say this is a “selective blunder ” to carry out some ones agenda… quite mind boggling that our courts are selective, where do we go from here?

  3. Mohan Says:

    Sarath Silva who recently admitted that he ignored the charges against MR and that is why MR is the current President is now defending the government. Can we take him seriously?

  4. Leela Says:

    Mohan,
    Ex-CJ is not defending the government, here. He is reading the Article 107(3). I am no lawyer but good in English comprehension.

    There is nothing to interpret the sentence in Article 107(3) for any one could understand it. Apparently, court had interpreted it by taking cognizance of only one part of the sentence as the law and dropping an essential part of it.

    As I understand from what the former CJ says; just one part a sentence in the constitution cannot be the law to judge the judges. Dropping ‘or Standing Orders’ part of the sentence is like making a new law. The Judiciary cannot make laws. That is the function of the Legislature.

    In my opinion, this is a coup d’état by some black coats to overthrow the government in power. Conspirators cannot be allowed to go unpunished.
    Leela

  5. mario_perera Says:

    What is the TRUTH?

    Several leading ministers of the government who were members of the PSC made ‘responsbile’ declarations over the Television and newspapers, immediately after PSC proceedings, that:

    The CJ was FOUND GUILTY of 3 charges, that she was exonerated from 2 others, while several other charges were deemed not to be necessary of being probed into.

    Now the deputy speaker has stated over the same media that the PSC DID NOT find the CJ guilty!

    Just this morning Minister Vasudeva Nanayakkara on being interviewed on channel 5 categorically stated that parliament has no right to proceed against supreme court judges for contempt of parliament. He went further and stated that parliament had ‘abdicated’ that right.

    Now Weeravansa and Rajitha Senaratne, also ‘responsible’ ministers of the government concurrently stated that the three judges who gave the decision recently should be hauled up for contempt of parliament!

    Shepherds in the mist? or Lamborginis plying the highway without headlights?

    Mario Perera
    Kadawata

  6. cassandra Says:

    Mohan,
    As you have observed, given what Sarath Silva has done in the past, can we take him seriously?

    I also see that Basil Fernando from the Asian Human Rights Commission, writing elsewhere, has pointed out that Sarath Silva has ignored the following paragraph of the Supreme Court judgment

    “In a State ruled by a Constitution based on the rule of law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such Court, tribunal or body has the power conferred on it by law to make such finding or decision. Such legal power can be conferred on such court, tribunal or body only by an Act of Parliament which is ‘law’ and not by Standing Orders which are not law but are rules made for the regulation of the orderly conduct and affairs of the Parliament. The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by ‘law’. The power to make a valid finding, after the investigation contemplated in Article 107 (3), can be conferred on a court, tribunal or body or only by law and by law alone.”

    What the SC has said in its judgment is clear enough to me, namely, that Standing Orders are NOT law and only a body with power conferred on it by LAW may properly make a finding or decision affecting the rights of any person. And, Standing Orders, not being LAW cannot confer any such power.

  7. Leela Says:

    mario_perera,
    I was watching ‘hathveni paya’ of ITN this morning. Vasudeva was very straight and clear in answering all the questions he was asked by the program anchor. You are correct; Vasu had explained that parliament has no right to proceed against Judges for contempt of parliament for they have ‘abdicated’ that right.

    But I must also say that Vasu was of the same opinion on everything that ex-CJ Silva tells us here. Listening to Vasu and reading this afterwards, I too accept their explanation as simple common sense. Indeed, Vasu was very very critical of the CJ’ guilt on three charges she was found guilty by the PSC and the way courts were interfering with the affairs of the Parliament and also the hand of the IC and their partners here.
    Leela

  8. mario_perera Says:

    Leela,

    Your statement indicates that you are holding a brief for Vasu and concerns you and Vasu alone. They have nothing to do with my comment.

    You have not answered my issue regarding the contradictory positions taken by ministers with regard to several crucial matters.

    Please read my comment again because I need not restate it.

    Please leave aside unnecessary elements such as Sarath Silva’s opinion and those of the IC. Just give a straight forward answer to my comment. How do you reconcile such contradictory statements by the ministers concerned?

    Mario

  9. Dilrook Says:

    [Quote] No person with self-respect will agree to be appointed new Chief Justice [Unquote] – SL Gunasekera

    This is what will happen. Unbiased judges are now reluctant and ashamed to be appointed the Chief Justice. That leaves room for a political henchman to become the next Chief Justice. It is not the first time for Sri Lanka and will not be the last.

    The president is trying hard to avoid being labeled a dictator by putting it on the PSC and the parliament. However, with the absence of judicial power in PSC, it will be the President’s and his party’s sole responsibility to impeach and remove the Chief Justice.

    This is a distraction from problems needing attention including the abrogation of 13A. If power corrupts as we can see, I’m terrified to think what absolute power will do to the ruling family.

    Military victory of 2009 has ended up in the wastepaper basket. This needless episode has made the human rights battle in international forums very difficult.

  10. mario_perera Says:

    “THIS NEEDLESS EPISODE….”

    Dilrook, you have said it all in just three words.

    Thank you
    Mario

  11. Charles Says:

    I am surprised with Dilrook’s comment. Normally I read very objective comments from him. The Article 107(3) is very clear about the right of the impeachment motion inquired into by a PSC appointed in terms of the PSOrders. Parliamentary Standing Orders are not meant to be law as it is about the legislative procedure. An Impeachment is a political issue investigated by the people’s representatives in the Parliament. The investigation by the PSC is debated by the Members of Parliament and voted and addressed to the President.. Therefore the whole Impeachment procedure is legislative and the Judiciary has no hand in it.

  12. cassandra Says:

    Charles,

    Are you not accepting the ruling of the Supreme Court, which I referred to earlier – that in

    “a State ruled by a Constitution based on the rule of law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such Court, tribunal or body has the power conferred on it by law to make such finding or decision” and that “The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by ‘law’. The power to make a valid finding, after the investigation contemplated in Article 107 (3), can be conferred on a court, tribunal or body or only by law and by law alone.”?

  13. lingamAndy Says:

    Dilrook
    This is a distraction from problems needing attention including the abrogation of 13A- Thank God 13A & TE lasting solution is save unit September 2013 NP election !!!

    Any way what happing to our pissu ganiya (CJ) ?

  14. Leela Says:

    mario_perera;
    First three words of the second sentence in the first para, I have given you my answer straight. I thought of adding a bit of reality in a separate para. I mentioned Vasu because you have done it. If you don’t like it, just knock it off.
    Leela

  15. Charles Says:

    No Cassandra I don’t accept the SC ruling. As I have said an Impeachment Motion is political and is for the legislature to decide under the Article 107(3) of the Constitution. The” rights of the persons “in this case is the Chief Justice. Standing Orders are procedural rules for the Parliament to follow they are formulated by the Legislature and the Speaker holds authority over it.

  16. mario_perera Says:

    Thank you for replying, Leela.

    Kind regards,
    Mario

  17. Wickrama Says:

    Cassandra, (and Mohan, Mario, Dilrook)

    CJ should have been the best person to know whether the paragraph of the SC ruling as quoted by BF (Basil Fernando, not Bloody Fool) is correct. Then, the 1.6 million Rupees question is, WHY THE HELL SHE WENT ON WITH the PSC inquiry, asking for time, asking for names of witnesses, attending with a bunch of lawyers who apperently were clueless, finally to run away giving lame excuses?? She could have very well stated similarly to what SC has stated, WITHOUT CRACKING COCONUTS AT HULTSDORF, and refused to participate !!

    As Wimal said in his 7th hour program, it is becoming increasingly possible that the whole scenario is a well orchestrated attempt to destabilise the democratically elected govt.

    Adaderana in one of their reports today,
    “However, Wickaramasinghe declared that the Rajapakse regime cannot be defeated by going to court, and that it can only be done by taking to the streets.”

    Taking to streets?? Like Tunisia, Egypt, Lybia and now Syria ?? RANIL of all people should have known that the only way Rajapakse regime can be defeated is by popular vote !

    GET READY GUYS, THE EELAM WAR 5 IS ABOUT TO START !!

  18. Mohan Says:

    I agree with Dilrook;

    This needless episode has made the human rights battle in international forums very difficult.

    This situation will be used by the LTTE diaspora in international forums. We are giving them ammunition.

    If only transparent procedures were followed and CJ was given sufficient time to explain the charges against her, none of these criticisms would have risen. Why did the government rush everything?

  19. Dilrook Says:

    Dear Charles,

    The context

    As you may have noticed, this Chief Justice episode has divided patriots. It should not have happened at this stage. Please devote some time to understand the trigger. It was not alleged corrupt deals of the Chief Justice or her spouse that led to this. This matter was raise even before she was appointed and the government ignored it. Months before the impeachment process started, allegations of corruption cropped up. Why the government didn’t impeach the Chief Justice then? Even the UNP and JVP would have supported it. The conflict arose when the Supreme Court quite correctly gave the verdict on the Divineguma Bill. To make maters worse, a second petition alleging that the Northern Province Governor is not the Council was upheld by the Supreme Court.

    If the government moved to abrogate the 13A, nothing of this would have happened. What the government wants is to keep 13A and worsen the situation by creating additional and conflicting Divineguma units (which are very suitable than PCs and obviously better than DCs if 13A is abrogated). I have written about the danger of this approach publicly and in emails where you were copied in. I also gave an early warning of this impending danger of despicably cunning tactics of government MPs keeping the 13A by sugar-coating it. Fortunately there are people who won’t be fooled by these petty tactics.

    The 13A must be abrogated. This cat and mouse game of government keeping 13A is bound to create more and more conflicts. This is why I wished the impeachment process failed. That will leave the government with two nasty options. Either to allow TNA take over the Northern Provincial Council after elections due in September this year (or suffer severe international repercussions for going back on a promise to UNHRC in 2008) or abrogate the 13A through the right way (two thirds majority and a referendum). In my view all patriots must push the government to this end.

  20. Dilrook Says:

    Where does this lead to?

    Already a Writ of Certiorari has been obtained against the Parliamentary Select Committee decision. That means it cannot be acted upon. If the parliament relies on it for the second stage of the impeachment, the Supreme Court will decide it is invalid. Then it requires the forcible removal of the Chief Justice or a continuing conflict with the Supreme Court which will be bound to accept Shirani Bandaranayake as continuing. Supreme Court judges going against this will be found guilty of contempt of court leading to prison terms. That means Shirani Bandaranayake appointing her favoured judges to punish her opponents in the Supreme Court. But it will not go to that level as the other judges will stand by the present Chief Justice.

    If parliament goes ahead with it, its members may be subjected to contempt of court charges. Minister SB Dissanayake was found guilty of contempt of court and sent to prison. There is the danger of a few ministers following him. A Presidential pardon will be highly unpopular locally and internationally.

    More likely for the government to either suffer credibility loss or continue with the conflict.

    The international community will force upon the government to end the conflict and continue with the Chief Justice in case of an impasse. Having proven she is not a government henchman, the international community will rely more on the Sri Lankan court system as a viable tool against dictatorship. This leads to war crimes cases and FR petitions leading to domestic war crimes investigations being put to the courts. And the government will be powerless to stop them. All anti-government elements will petition Supreme Court for “redress” and will get favourable verdicts.

    This needless conflict has the potential to undo this government internally. As the last resort the government will go for elections. Minorities have already deserted the government. TNA has emerged stronger than TULF in 1977 in terms of percentages in the north and Tamil majority areas in the east. CWC and SLMC will have to make a decision. They stand better chance to win seats by contesting alone or going with the UNP. Sinhalese are the least benefitted from the “peace dividend” and expect a “no” vote for the government.

    Sinhalese percentage in universities and other higher education institutions and in private and public sector jobs has reduced during the past three years. This will be a big election issue.

    Since the government will be going to elections from a weak position, it will not have the support of “buoyancy”. This is what helps a winner win a subsequent election easily (e.g. 2010 April election after 2010 January election). However, abrogating 13A will make the government popular again.

    Since 2010 the government almost always made wrong turns at vital junctions.

    Can you name anything this government achieved with its two thirds majority?
    Only the 18th amendment that further enhanced the powers of the President.

    How many good things they could have achieved at the halfway mark (2010 January to 2015 December) by 2013?
    Worse part is the government may appease just 11% of the population at the expense of the 89% using its two thirds majority. People must ensure that is the last nail on the coffin of the Rajapakses.

  21. Dilrook Says:

    The correct process

    Impeachment of a Chief Justice involves a judicial, legislative and an executive process. The last two are assured for the ruling party but not the first one. Article 107 of the Constitution says, “proved misbehaviour”. For proving it, a judicial process must be followed. Article 4 of the Constitution clearly states the legislature exercises judicial power through the courts, etc. Only exception is when parliamentary privileges are concerned. In that case the parliament (or a committee appointed by it) can directly exercise judicial power. So the Parliamentary Select Committee does not have that power as it is not a matter of parliamentary privileges.

    Article 78 is like the 13A. It was hurriedly added to the Constitution without proper procedure (two thirds in parliament backed by a referendum). It was added in haste when Chief Justice Neville Samarakoon was impeached in 1984. It contravenes article 4. In the manner in which the two articles are listed in the Constitution and the context, article 4 takes precedence.

    It must be noted that even with that the impeachment process failed. Neville Samarakoon reached his retirement age and that was the end of that episode.

    The government should have found Shirani Bandaranayake guilty of misbehaviour through

    1. an established court, or,
    2. a court or tribunal newly created by law for the purpose (invoking fears of dictatorship as in the case of Sepala Ekanayaka).

    Now the options available are:

    1. The President or Speaker to seek interpretation from Supreme Court article 78. Given the mistrust and conflict between the two institutions (both parties to the conflict are guilty of creating this), I doubt this will happen. If it were to happen, interpretation of law dictates the courts take into account the intention of the parliament when passing that law (article 78). It is obvious – a judicial process to prove the Chief Justice misbehaved.

    2. Under the Parliamentary Privileges Act, the parliament or a committee appointed by it can summon anyone for evidence. If the Parliamentary Select Committee again goes to evidence gathering (by reversing its judgement which will be embarrassing to say the least), it can summon the Chief Justice to present evidence. If she refuses, that creates a problem of parliamentary privileges in which case the parliament or the Parliamentary Select Committee can directly assume judicial powers over that matter only. That can lead to proven misbehaviour of the Chief Justice upon which she can be impeached.

    She obviously knew this and that was why she presented evidence. Making false evidence is an offence. But action for that offence must be initiated by the Attorney General. Obviously it will further exacerbate the conflict.

    Any other forcible options may work well in the short run but will lead to severe credibility loss in the long run.

  22. Charles Says:

    Dear Dilrook,

    Removal of Article 13A is altogether a different matter. It has to be treated separately from the present case of an Impeachment. Removal of the 13A may have facilitated the introduction of the Divineguma Bill. The Divineguma Bill, I consider is a good move to “soften” the effect of 13A.

    The decisiont on the Divineguma Bill by the Supreme Court was deliberate to avoid the government from adopting the Bill . There were two arguments in respect of the ninth signature on the proposal of the Bill which the SC had to decide on. There was no elected Northern Provincial Council. The question was whether the Governor’s Signature could have been accepted as that of the Provincial Council. One of the two arguments was favourable the other not. The Supreme Court accepted the latter.

    Impeachment motion is a legislative procedure, the precedents for which are available in the two impeachment proposals of Sri Lanka and many of the impeachments of American Judges.

    The Legislature, the Executive and the Judiciary are separate and as much as Judiciary is independent of the other two states; the Legislature and the Executive is independent of Judicial Interference. The Parliament may request the Judiciary for interpretations of the Constitution, but the Judiciary cannot on its own interpret the Constitution, unless with regard to a situation arising with a lower court taking a decision affecting the Constitution.

    However the Legislature being the “ representation of the people “ in the Parliament, it is Supreme. A law court cannot issue a “Writ of Certiorari » to the Legislature. There is no such precedent in Sri Lanka or any where else in the world. It is normally issued to lower courts by the SC. If the Judiciary attempts to impose itself on the legislature, the Legislature can ignore it.

    Proved “misbehaviour” of a citizen is different from that of a Chief Justice. The Courts could be moved to inquire into a proved “ misbehaviour ” of a citizen, but the same cannot be done in respect of a Chief Justice, hence an Impeachment procedure by the Legislature against a Chief Justice.

    The Impeachment Motion cannot be stopped now, as it has to follow its course until it is debated in the Parliament, taken a vote, and addressed to the President.

    It was like the war against the terrorism, even if the most powerful foreign countries intervened to stop it, it could not have been possible to stop it at that stage. It had to take its course. If not we would have still had Prabhakaran and his ruthless terrorists on our back to deal with.

    We cannot as a Sovereign State do things always to please e our former “Colonial Masters”. There are times we have to assert our rights what ever the consequences which could be dealt with as and when they surface. That is why I admire Gotabhaya Rajapaksa.

  23. Dilrook Says:

    Dear Charles,

    Impeachment of the Chief Justice is not just a legislative matter. It is a judicial, legislative and an executive process. To better understand this, consider the removal of the president or a MP. They are entitled to a judicial process. In the case of the President, the Supreme Court must find the President guilty before the impeachment could progress after the parliament had initiated the process. An MP can be found guilty only by the courts. Citizens can be found guilty only by the courts. Why should the Chief Justice not entitled to this basic right? The Chief Justice is also entitled to a judicial process as per the law.

    The parliament has no judicial powers (unless the condition I mentioned yesterday is satisfied which relates to parliamentary privileges). On all other matters the Constitution does not grant the parliament any direct judicial power. Contrasting the impeachment of Neville Samarakoon, this impeachment may have a different end. But it will worsen the conflict between the parliament and the judiciary in addition to marking a new low in respecting the law and order in the country.

    We talked about the Divineguma Bill yesterday. I too support it in its undiluted form. Coincidentally the parliament passed the revised Divineguma Bill yesterday taking into account 14 changes proposed by the Supreme Court. Changes were made so that it does not contravene 13A which is the only obstacle to meaningful decentralisation! Now the bill is worthless. It will retain 13A Provincial Councils but add an additional tax burden and a governance layer. This shows the government’s intention to retain 13A and the realisation that even with a new Chief Justice the intended outcome of the original Bill cannot be achieved. It also shows the lack of understanding of Constitutional matters by the government. 14 amendments to the bill to comply with the Constitution is not a small matter. In other words the Divineguma Bill violated the Constitution on 14 counts! Who advises them? It is this very same lack of understanding of the Constitution that led to this current impasse. Obviously the government does not plan to go for a referendum. Although not the right approach, a referendum could have overcome this problem easily. CWC, SLMC and communist parties voted for the Bill yesterday indicating it doesn’t “soften” 13A as these parties openly canvass for the retention of 13A and PCs.

    Standing up to the meddling international community during the war is a totally different matter. The President, parliament and the judiciary strictly followed the Constitution then. Sharp knowledge of the Constitution by Gomin Dayasiri and a few others helped de-merge the east from the north which was a tremendous victory. It showed the need to work with, not against, the Constitution and the judiciary. If you may recall, I wrote an article to Lankaweb titled “Easterners retain their separate identity” wherein I predicted the outcome of the textbook case just before the verdict was announced.

    A new Constitution is needed as the current one is full of contradictions, patchwork and ad-hoc additions. With two thirds majority, it is this government that can make it happen. However, with their lack of Constitutional knowledge as displayed by the Divineguma and the current debacles, I fear they may do a shoddy Constitution. Though not relevant to the subject, I have an Honours in Law and practiced in Sri Lanka for a short time. It may have caused some professional bias in my replies which is regretted.

    (I share your admiration for Gotabhaya Rajapaksa. His many dealings with the judiciary have been highly successful. Instead of going against the judiciary, he worked with it in an exemplary manner.)

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