K. N. Choksy – CJ impeachment constitutionally done
Posted on January 16th, 2013

By  Arthur Wamanan Courtesy The Nation

Sunday, 13 January 2013 00:00

Former Minister of Constitutional Affairs and President’s Counsel K. N. Choksy (former UNP MP) in an exclusive interview with The Nation said that Article 107 of the Constitution duly empowered Parliament to impeach a judge of the Supreme Court or the Court of Appeal and claimed that the Judiciary had no role to play in that regard.  Elaborating further Choksy was of the view that the Legislature had the right to ignore judicial interpretations under separation of powers embodied in the Constitution.

Following are excerpts of the interview.

Q: As an experienced constitutional lawyer and a former minister of constitutional affairs, what are your observations about the Court of Appeal’s upholding the interpretation of the Supreme Court with regard to Justice Shirani Bandaranayake’s writ application?

Our Constitution enacted in 1978 is based on the grun Norm of the Separation of Powers between the Legislature, the Executive and the Judiciary and the Supremacy of Parliament. In those circumstances, Article 107 of the Constitution which provides for the removal of a Superior Court Judge is solely vested with the Legislature. The Judiciary has no role to play. Though the Supreme Court is the interpreter of the Constitution and the Court of Appeal has the power to issue Writs, by reason of the fact that the impeachment mechanism is solely vested with the Legislature, Writs are not issued by courts traversing the domain of the Legislature. This is particularly so in other jurisdictions such as the United Kingdom.

Q: Since interpretations by the Judiciary have caused confusion to an unprecedented level, do you view such interpretations as legal and constitutional?

Though the Supreme Court is the interpreter of the Constitution and the Court of Appeal has the power to issue Writs, the same would not apply to matters solely vested under the Constitution in the Legislature.

Q: Judges of the Court of Appeal or be they of the Supreme Court, they are qualified professionals with high integrity, representing the Judiciary of the Republic. Hence, they do deliver interpretations or judgments quite consistent with the provisions of the Constitution that governs the country. If another component of the country, like the Legislature, decides to ignore such determinations where does the rule of law stand in this country?

The Legislature can choose to ignore determinations of the Judiciary and the Rule of Law will still stand if the determinations of the Judiciary traverse the jurisdiction and the powers of the Legislature. This is so because there is a Separation of Powers under our Constitution.

Q: There are allegations that Justice Bandaranayake’s writ application was given high importance by the Court of Appeal over other cases and that the President of the Court of Appeal hand picked the bench overlooking senior judges in the panel. Would you agree that the Constitution empowers the President of the Court of Appeal to decide on any bench at his prerogative irrespective of seniority of judges in the panel?

The Constitution empowers the President of the Court of Appeal who has the power under Article 146 (2) Proviso (ii) which empowers the President of the Court of Appeal to nominate the Benches of the Court of Appeal. There is no provision or requirement in relation to the seniority of nominating judges in the panel. Since an important question has arisen, the President of the Court of Appeal has nominated a divisional Bench of three Judges.

Q: Has the Court of Appeal committed any wrong by expediting the writ application of the Chief Justice well ahead of the deadline of the impeachment motion debate now proceeding in Parliament?

The Writ Application of the Chief Justice has been heard by the Court of Appeal in an expedient manner due to the fact that the Impeachment Motion stood to be debated in Parliament on January 10 and 11.

Q: You were a Member of Parliament and a senior cabinet minister in the Premadasa and Wijetunge governments. The Supreme Court has upheld that Standing Orders are not law. As a former Parliamentarian and a President’s Counsel how do you view the legality of Standing Orders of Parliament?

The Standing Orders of Parliament relating to the Impeachment procedure have been correctly and constitutionally enacted under the 1978 Constitution and it has been in force and effect for over 30 years. The Constitution and Article 107 (3) specifically provides for the procedure to be enacted by Parliament either by Law or by Standing Orders. This Parliament has done it constitutionally.

Q: Furthermore, Parliament meets under Standing Orders or by Resolution as provided in the Constitution. All laws are passed by Parliament during sessions held under Standing Orders. So, if the Supreme Court interpretation says that Standing Orders are not legal, how could laws passed by Parliament and interpreted by Court be legal as such laws have been passed at sessions held under Standing Orders?

The Court has in this case only interpreted Standing Order 78 made under Article 107 (3). All Legislation to date has been validly passed by Parliament and Parliament has functioned since 1978 under the Standing Orders.

Q: The public are anxious to know the definition embodied in the Constitution as “Parliament shall by law or by Standing Orders”. Could you enlighten public upon this term whether Standing Orders are in compliance or parallel to the term “”…” “Parliament shall by law”?

Article 107 (3) provides Parliament with the option of providing a Superior Court Judge either by Law or by Standing Orders for the procedure for the impeachment. In this case as the procedure only relates to a function of Parliament it has provided for the same by Standing Orders. This is adequate. When Parliament provides for something by Law it is applicable not only to Parliament but the whole country.

Q: The establishment of a Parliamentary Select Committee (PSC) or any other committee of that nature is done under Standing Orders. In the current scenario that procedure had been followed with regard to the impeachment motion of the Chief Justice. As specified under Article 107 (3), such a procedure should lead to an Address to the Executive on the misbehavior or incapacity of the incumbent Chief Justice. Is this procedure right or wrong?

This is the procedure provided for in Article 107(3). The Parliamentary Select Committee conducts an inquiry under the Standing Orders and reports its observations and findings to the Parliament, Thereafter Parliament as a whole debates it and if the Resolution is carried by a majority of all the Members of the House i.e. of all 225, either 113 or more voting in favor of the proved misbehavior of the impugned Superior Court Judge, the Speaker must communicate the same to the President by way of an Address. This is the procedure which is both correct and constitutional.

http://www.nation.lk/edition/interview/item/14614-cj-impeachment-constitutionally-done.html

 

8 Responses to “K. N. Choksy – CJ impeachment constitutionally done”

  1. dhane Says:

    When imminent and professional people like K.N. Choksy, G.L Peiris advised impeachment is done according to the Constitution people in Sri Lanka does not want any more advice.
    Nobody care interpretation of “Godda Perakadoluwas” of JVP, UNP and Bar Association, or International Commission of Jurists (ICJ)
    Who cares for the British Colonial “Nukkuwa” The Commonwealth or USA threats. All those Nations should by now realized in Sri Lanka present Government headed by President Mahinda Rajapakasa never listen to any of those forces during the time eliminating LTTE. He did what people of SL wants not outsiders.

    If any country of its own wish can attend to Commonwealth Heads of Government Meeting due to be held in Sri Lanka in 2013. If Canada or any other country did not participate SL is not going to loose anything. At the end of all past during many years Commonwealth Heads of Government Meeting what they do is only issuing joint statement “successful discussion and valuable meeting”. Only thing those who boycott will miss the Lavish Party & Hospitality of SL.

  2. jay-ran Says:

    K.N.Choksy is aveteran professional who had been a SENOR MINISTER OF UNP once upon a time.I think, but not sure that he too was involved in forming the newconstitution of JRJ in 1978.Above interview proves thathe has gone thru the process very carefully and fully to give such answers.As far as we know,Choksy isnot person whocouldbe bought tomake such statements.
    Many localand foreign pundits who try to criticise the Govt’s PSC procedure HAVE NOT READ THE CONSTITUTION FULLY AND ALSO THE STATE OF EVENTS OF THE IMPEACHMENT PROCESS FULLY.
    Simply listning to the Tamil LTTE diaspora’s or INGOS like CPA’s interpretations who were making DOLLARS, West, UK,US France and many countrieswho TRIED TO PREVENT THE MR GOVT’S ASSAULT ON LTTE are making unwanted statements.
    Recently in Phillipines too aJudge wasimpeached in a similer manner,but West is DEAF,BLIND & DUMB on that.
    How many Judges were removed in US in similer manner? What all these localand foreign elements WANT IS A REGIME CHANGE.But,as long as majority people supports this Govt, none can do that.

  3. SenaD Says:

    jay-ran,

    You are wrong when you say:
    “Many local and foreign pundits who try to criticise the Govt’s PSC procedure HAVE NOT READ THE CONSTITUTION FULLY AND ALSO THE STATE OF EVENTS OF THE IMPEACHMENT PROCESS FULLY”, because most of them know what was going on and the intricacies of the Sri Lankan constitution. That is why it makes all the more despicable. If it were due to ignorance, then it could be considered as the ranting of some idiosyncratic empty-heads.

  4. lingamAndy Says:

    K. N. Choksy – CJ impeachment constitutionally done
    Which constitution Hambanthoddai constitutionally ???

  5. Kit Athul Says:

    Andy Lingham, write some thing meaning full so that you make your point ckear. Read the article and understand how Choksy, who is not a MR supporter answers the issue of CJ replacement. At same time read this disgraceful British colonial clowm Judge Wignaswarm’s speech. This punk who looks like Marashta Mahesh Yogi, calls JRJ a KING. He stated that JRJ at a meeting in Kalaniaya told a gathering that he is from a Royal family and he is therefore the KING of Sri Lanka. He is no different from Judge Weeramantry, the British Colonial punk. Andy what is the Hambanthoddai? Explain.

  6. jay-ran Says:

    SenaD,
    Pl let me know how it was legal for JRJ to impeach Judge Neville Samarakone and NONE OF THESE LOCAL,INTERNATIONAL OR INGO PUNDITS OR EVEN THE UNP MPs WHO ARE STILL ALIVE NEVR SAID IT WAS WRONG AND PRESENT IMPEACHMENT TO WAS DONE UNDER THE SAME CONSTITUTION.
    The judges whogave a ruling on PSC have WILLFULLY DELETED CERTAIN CLAUSES OF THE CONSTITUTION.Thats why these Internationalroughes make such statements as they are all ANGRY WITH MR FOR DESTROYING LTTE!!!

  7. SenaD Says:

    jay-ran,

    You have completely misunderstood what I have said!

    I fully agree with what you have just written.

    What I said is that most of those people local and foreign with or without legal qualifications, except for the empty-heads who keep ranting without knowing what they talk about, do know the procedure for impeachment of judges specified in the Sri Lankan Constitution because the relevant parts of it had been quoted ad nauseam.

    Wilfully deleting the part “or by standing order” when quoting the relevant part of the Sri Lankan Constitution amounts to changing the Sri Lankan Constitution. The supeme Court has no role in altering / changing the Constitution. Changing the Constitution by way of additions or deletions belongs exclusively to the Legislature.

    So, when they, including the very learned judges, do such things they do so knowing very well that it is wrong to do so!

    That is why I said that such utterances are all the more despicable, because they say those things knowing that what they say is wrong.

  8. Lorenzo Says:

    Jay,

    The funny thing is STANDING ORDER thing was ADDED to the constitution by JR to make FUTURE impeachments EASY!!

    Making use of that provision is a RIGHT.

    It was LTTE Sri Skandarajah who DELIBERATELY misinterpreted the constitution. Other DUMBOS simply follow his foolishness.

    This clown has CREATED a new constitution where there is NO standing order provision. A judge MAKING laws and giving judgements too!!!

    WOW!

    Now the president should ASK SC to interpret the constitution AGAIN WITH standing order provisions INCLUDED as it is.

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