107 (3) empowers Parliament to make Standing Order for removal of judges – Nihal Sri

Saturday, 1 December 2012 00:00 - - {{hitsCtrl.values.hits}}

Public Interest Litigator Nihal Sri Amerekere yesterday opined that Article 107 (3) of the Constitution pertaining to the removal of judges of the superior courts specifically empowers parliament to make Standing Orders for all matters relating to the presentation of an Address to remove a Judge of the Superior Courts, including the procedure for the passing of a Resolution, and the investigation and proof of the alleged misbehaviour or incapacity, and the right of a Judge to appear and be heard.

“Thus Article 107(3) of the Constitution has laid down an express power, limited only to the procedure of removal of a Judge of the Superior Courts, and such Article 107(3) of the Constitution cannot be rendered meaningless and a fiction,” he said. Ameresekere also said that ordinarily, the appointer of a person is vested with the inherent right to remove such a person appointed by him.

“In this instance, though a Judge is appointed by the President, the power to remove a Judge of the Superior Courts is restricted by the Constitutional procedure provided for in Article 107 (3).

Ameresekere in a drafted argument says that this Constitutional procedure cannot be rendered a nullity. “A Judge of the Superior Courts having assumed office upon taking Oath, under the existing Constitution, having been well and truly aware of the foregoing Constitutional procedure in the very Constitution cannot later be heard to say, that the foregoing Constitutional procedure is inapplicable and/or unacceptable and/or unconstitutional,” he explains.

Ameresekere explains that if such a procedure was unacceptable, judges of the superior courts should have declined to accept the appointment as long as this was the procedure in place to remove them from that position.

“Why this intriguing, misinterpretation and discrimination with a hue and cry, whilst the aforesaid Constitutionally-established procedures have been accepted in other quarters, without any demur?” Ameresekere queried.