Saturday, 5 January 2013

Wrong verdict by Appellate Court having read only part of the Article of Constitution is Null and Void.

Any student of Law will know that an Impeachment is a political matter dealt with by the Parliament according to the Constitution.  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.

In the Constitution under the  Chapter “  Judiciary” the Supreme court has seen only  the word “Law” in the Article 107(3),  and immediately interpreted that the Judiciary has the right to interpret the article for the  “ Appointment and removal of Judges of the Supreme Court and Court of Appeal”. 

That is what would happen if the decision of the appeal court goes unchecked.   The wise men of the Supreme Court and the Appellate Court had not seen  in that article 107(3) of the Constitution the word “or” introducing an alternative which is” by Standing Orders provide for all matters relating to the presentation etc.…….”

Therefore the Judgement made by the  Appellate Court on the writ application of the CJ Shirani Bandaranayake  without paying due attention  to the alternative proposed by that article of the Constitution  is null and void.  The wise men  thereby turns into a set of “legal jokers”

In giving the verdict the court had said, “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,”

All that is a fine declaration of intention, but the only defect is that the Appellate Court  had come to a hasty conclusion without reading the whole of the Article 107(3) of the Constitution.

Therefore, when the Appellate Court declared, “The Parliamentary Select Committee has no legal authority to inquire into allegations on the Chief Justice, .”  they were only making fools of themselves, because the same article  proposes as an alternative the appointment of a Parliamentary Special Committee under the  Parliamentary Standing Orders.

The report goes on,  “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.

 PSC was established under the standing order 78(A) and the aforementioned order is not a law, the Appeal Court observed.  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.”

All that  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.

Therefore the wrong  verdict given  by the  Court of Appeal of Sri Lanka on the writ application of the Chief Justice Shirani Bandaranayake is null and void.

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