Wrong verdict by Appellate Court having read only part of the relevant Article of Constitution is Null and Void.
Posted on January 5th, 2013
By Charles.S.Perera
ƒÆ’-¡ƒ”š‚ Any student of Law will know that an Impeachment is a political matter dealt with by the Parliament according to the Constitution.ƒÆ’-¡ƒ”š‚ The Judiciary cannot decide to interpret the Constitution at its will to interfere in to the matters that is not within the purview of the Judiciary.
ƒÆ’-¡ƒ”š‚ In the Constitution under theƒÆ’-¡ƒ”š‚ Chapter ƒÆ’‚¢ƒ¢-¡‚¬ƒ…- ƒÆ’-¡ƒ”š‚ JudiciaryƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ the Supreme court has seen only ƒÆ’-¡ƒ”š‚ the word ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-LawƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ in the Article 107(3), ƒÆ’-¡ƒ”š‚ and immediately interpreted that the Judiciary has the right to interpret the article for theƒÆ’-¡ƒ”š‚ ƒÆ’‚¢ƒ¢-¡‚¬ƒ…- Appointment and removal of Judges of the Supreme Court and Court of AppealƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.ƒÆ’-¡ƒ”š‚
ƒÆ’-¡ƒ”š‚ That is what would happen if the decision of the appeal court goes unchecked.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ The wise men of the Supreme Court and the Appellate Court had not seenƒÆ’-¡ƒ”š‚ in that article 107(3) of the Constitution the word ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-orƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ introducing an alternative which isƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ by Standing Orders provide for all matters relating to the presentation etc.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’-¡ƒ”š‚ Therefore the Judgement made by the ƒÆ’-¡ƒ”š‚ Appellate Court on the writ application of the CJ Shirani Bandaranayakecourt ƒÆ’-¡ƒ”š‚ without paying due attention ƒÆ’-¡ƒ”š‚ to the alternative proposed by that article of the ConstitutionƒÆ’-¡ƒ”š‚ is null and void.ƒÆ’-¡ƒ”š‚ The wise menƒÆ’-¡ƒ”š‚ thereby turns into a set of ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-legal jokersƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’-¡ƒ”š‚ In giving the verdict the court had said, ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The reference to this court involves a matter which concerns the judges of the Supreme Court and the Court of Appeal. In dealing with the question we therefore kept in mind that the objectivity of our approach itself may incidentally be in issue. It is therefore in a spirit of detached objective inquiry, which is a distinguishing feature of judicial process that we attempted to find an answer to the question referred to us. We have performed our duty faithfully, bearing in mind the oath of office we have taken when we assumed the judicial office which we hold,ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’-¡ƒ”š‚ All that is a fine declaration of intention, but the only defect is that the Appellate Court ƒÆ’-¡ƒ”š‚ had come to a hasty conclusion without reading the whole of the Article 107(3) of the Constitution.
Therefore, when the Appellate Court declared, ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The Parliamentary Select Committee has no legal authority to inquire into allegations on the Chief Justice, .ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ƒÆ’-¡ƒ”š‚ they were only making fools of themselves, because the same article ƒÆ’-¡ƒ”š‚ proposes as an alternative the appointment of a Parliamentary Special Committee under theƒÆ’-¡ƒ”š‚ Parliamentary Standing Orders.
ƒÆ’-¡ƒ”š‚ The report goes on, ƒÆ’-¡ƒ”š‚ ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The Appeal court had further explained that allegations against a judge could only be investigated by an entity with judicial authority. If not the authority of the whole judiciary of the country could be threatened, the Court added.
ƒÆ’-¡ƒ”š‚ PSC was established under the standing order 78(A) and the aforementioned order is not a law, the Appeal Court observed.ƒÆ’-¡ƒ”š‚ Court hence stated that in order to inquire allegations the Chief Justice, Parliament needs to appoint and committee or an entity endowed with judicial authority.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’-¡ƒ”š‚ All that ƒÆ’-¡ƒ”š‚ is nonsense as under Article 107(3) the Parliament has the Constitutional right to appoint a PSC consisting of the Members of the Parliament to inquire into the Impeachment Motion against a Chief Justice, as an Impeachment is a matter outside the Judiciary and is a political issue decided by the Legislature.
ƒÆ’-¡ƒ”š‚ Therefore the wrong ƒÆ’-¡ƒ”š‚ Judgement made by the ƒÆ’-¡ƒ”š‚ Court of Appeal of Sri Lanka on the writ application of the Chief Justice Shirani Bandaranayake is null and void.
January 5th, 2013 at 5:11 pm
I wonder why we need a hair splitting argument for this.
Parliamentary select committee review is not a judiciary review or anything analogous to a criminal trial. It is only an ad hoc Parliamentary select committee review that reports there is some prima facie evidence to show the Chief Justice repeatedly committed perjury by submitting false financial disclosure for number of years and also concealing things of value that she solicited and received from companies appearing in litigation before her.
The committee has agreed on majority vote that further consideration of impeachment of Chief Justice might be warranted for.
Then it is up to the parliament to debate on the evidence presented and take a vote to recommend president for disqualify her from ever holding office again and dismiss her purely on the basis of her failing to meet the competence, integrity, probity, and independence that required by a chief justice.
January 5th, 2013 at 5:17 pm
There have been sixty-one federal judges or Supreme Court Justices investigated for impeachment in the US.
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] ( Based on Wikipedia)
January 6th, 2013 at 11:55 am
Dear Charles – In a moment of haze, I thought a “New Chief Justice of the Supreme Court” has been appointed, when the last satatement of your presentation:
“Therefore the wrong judgement made by the Court of Appeal of Sri Lanka on the writ application of the Chief Judtice Shirani Bandaranayke is null and void” was read.
January 6th, 2013 at 12:41 pm
I do not know how such a thought had arisen in your mind. Perhaps it is a premonition of what is to come !!!
January 6th, 2013 at 12:47 pm
WELL DONE GR. We have been calling for you to do this for a LONG LONG TIME. Better late than never!
Mullikulam is actually a TAMIL MADU village near the Kerala border. ILLEGAL IMMIGRANTS (kallathoni) who ILLEGALY migrated from there to SL set up this Mullikulam village in SL.
That shows how important Mullikulam is to kallathoni. BUST IT.
Now the kallathoni will be stumped. That is why TNA, NGOs and the bloody British HC are so worried about “displaced” people of Mullikulam. My foot!!
“Defence Secretary Gotabhaya Rajapakse confirmed that sri Lankan military plans to establish military bases island wide in all strategically significant places to strengthen the national security further.
Addressing the ceremony to declare open a the new North-Western Naval Command Headquarters in Mullikulum, the Defence Secretary said it is the responsibility of relevant authorities to take necessary measures to thwart any attempts to reintroduce terrorism in the country.
The Defence Secretary said the Tamil Tigers smuggled stockpile of arms and ammunition into the country using the sea route and therefore, it is important to maintain a proper marine surveillance around the country. The country’s Navy has to bear the immense responsibility in protecting the shores, he said.
The North-western Naval Headquarters has been strategically shifted from Puttalam to Mullikulam to enable the Navy to more effectively safeguard the waters and land by conducting prompt and sustainable naval operations at sea, lagoons and on land in accordance with national policies, the Navy said.
The new command centre is tasked with preventing the use of sea and land routes in the general area by unauthorised persons, protecting the coast line and fisheries, and controlling illegal fishing activities.
It is also responsible for prevention of illicit migration, smuggling, drug trafficking, poaching, deforestation, and sand mining, the Navy highlighted.”
January 6th, 2013 at 12:52 pm
We also thank Cardinal Malcolm Ranjith for his sensible approach to help diffuse disagreement to the Mullikulam camp by TAMIL ILLEGAL IMMIGRANTS in the area called IDPs.
Displaced Tamils can go back to Mullikulam (Tamil Madu) in the Kerala border, 529 KM from Chen-nai, from where they came from.
January 6th, 2013 at 2:35 pm
Charles – You have every right as a citizen to bring about an appeal and/or FR action if you rightfully think your interpretation and arguments are correct and there was indeed a “wrong” verdict by the SC
January 7th, 2013 at 3:50 am
Marco I know I can file an FR case. But it would not be necessary as the article 107(3) is very clear on the issue and the Appeal court has deliberately decided to leave out the alternative proposed by the Article 107(3)n of the Constitution. Even the reference to “law” in that article means, that request should be made by the Parliament not by a third party. The Supreme Court cannot interpret it on a writ application by the CJ. It should have come from the Parliament if the SC were to give an interpretation on it.