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