With the Sri Lankan Supreme Court determining on Thursday that a Parliamentary Select Committee (PSC) had “no legal authority” to declare guilty or pronounce a decision affecting the rights of the judge, the impeachment proceedings against Chief Justice Shirani Bandaranayake has set the stage for a legislature versus judiciary tussle.
Earlier, the Court of appeal, which was hearing the case, had turned to the Supreme Court for an interpretation of the Constitution. As per the Sri Lankan Constitution, Supreme Court is the sole and exclusive authority for interpretation of the Constitution.
The Apex Court, pointing to obvious flaws in the PSC process, made a far-reaching, and clear-cut order on the right of the defendant: “The right of the Judge under investigation to appear at the investigation and be heard being a fundamental principle of natural justice should also be provided by law with a clear indication of the scope of “the right to be heard” such as the right to cross examine witnesses, to call witness and adduce evidence, both oral and documentary.”
Proceedings void
Reading out the determination, the Court of Appeal said: “The proceedings that commenced before PSC is not contemplated by law and the commencement of proceeding and continuance is prima facie void.”
The PSC, which had probed allegations of corruption against Ms. Justice Bandaranayake, found her guilty and had submitted its findings to Speaker Chamal Rajapaksa in December. Parliament is slated to take up a debate on the impeachment from January 8. A civil society activist, Chandra Jayaratne, had approached the courts over the issue. The court had subsequently served notices on all PSC members. The Speaker said members of the PSC, constituted in November to probe the allegations against the Chief Justice, need not heed the notice of the Court of Appeal. All ruling party members and members of the main opposition party, the UNP, stayed away from the court proceedings. Two other opposition parties, TNA and JVP, submitted themselves to court proceedings.
Asked if the decision meant that a judiciary versus Parliament clash was on the cards, Cabinet spokesperson and Media Minister Kehelia Rambukwella said: “I can’t say no to it.”
The power to impeach a judge is necessary and inevitable to prevent
judges from becoming uncontrollable centres of power.Politics is a
play of raw power;allocation of power thus belongs to political power
holders. Law is politically structured power.In the name of
interpretations judges cannot be allowed to change the chosen power
arrangement.
It is universally conceded that judges have no immunity for crime. But
mis-conduct and inefficiency of the judges need to be controlled.
Impeachment is the political check against upsetting of political
choices by high functionaries.The power belongs to the House in its
collective identity;it cannot go to any committee.
Legislators are like jurors,to return a finding of fact.Voting under
instructions becomes impermissible abuse of discretion.Voting without
instructions becomes very significant for controlling this high power.
The right to defend impugned conduct is a valuable safeguard against
abuse of this high power and cannot be denied.
C.J is a highly prestige Post.The Hon.Ministers and Parliamentarian also V.V.I.P ranchers.Criticized publicly for these posts is unethical and uncivilized, bad practice.
Specially the Judiciary not to criticized publicly because that is the last and final place the General Public could go for survival.
Learned Judges are the most suitable persons who could interpret the
Constitutional issues. Hence i could suggest to forget all the past arguments and try to resolve the current issues remedying the weaknesses in the constitution and its processes.
They gave this decision based on ethics but the judgement by SC is unconstitutional as constitution of sri lanka clearly state that Cj or any other judge can be removed only through a parliamentary procedure not through a judiciary procedure. This can be understandable for anybody who is unbiased bcs if judiciary itself take power of disciplinary action on a CJ, it is highly impossible to have a fair judgements as favourable biases may occur due to the close rapport which cj have with other high court judges. Now SC of sri lanka has given a decision based on emotions which can not be implemented at any cost and most probably it would be null as parliment and executive is determined to go ahead with its decision. Even main opposition UNP has also accpted supremacy of parliament that anybody can clearly understand through explicit and implicit clauses in constitution.
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