Modus operandi for CJ removal is ‘legally flawed’

Tuesday, 27 November 2012 00:00 -     - {{hitsCtrl.values.hits}}

The procedure set out in Standing Order 78A for the removal of a judge of the superior courts is intrinsically legally flawed, unashamedly obnoxious, unconstitutional, and ultra vires the powers of the Select Committee, lawyers for petitioner Chandra Jayaratne said in their written submissions to the Supreme Court yesterday.

In their submissions to the Supreme Court, lawyers for the petitioner said that Articles 107 (2) and 107 (3) must be interpreted in the background of the clear intention of the Constitution and its manifest objective of “preserving and protecting the independence of the judiciary from illegitimate incursions by the Legislature and the Executive.”

The petitioner filed a writ application in the Court of Appeal seeking to stay the Parliamentary Select committee probing the impeachment against Chief Justice Shirani Bandaranayake and the divisional bench of the Court of Appeal referred the matter to the Supreme Court for constitutional interpretation. The Supreme Court bench deliberating on the case will be Justice Gamini Amaratunge, J. Sripavan and Priyasath Dep.

Kanag-Iswaran, President’s Counsel with Attorneys at Law Thishya Weragoda and Buddhike Illangatillake filing submissions for the Petitioner said that Standing Order 78A which was hurriedly adopted in 1984 transferred power vested in the courts of law through the constitution to the Parliamentary Select Committee hearing the impeachment motion and was a violation of Article 3 and 4(c) of the Constitution.  Article 3 states that the sovereignty of the people is inalienable or that sovereignty conferred by the constitution cannot be transferred to another organ of the state. Article 4(c) vests the exercise of the peoples’ judicial power in courts of law, except in cases of privilege, immunity and powers of members of parliament, the petitioner’s legal team argues.

In their written submissions the lawyers argue that Standing Order 78A of the Parliament, which is not a law cannot empower the Select Committee appointed to investigate allegations of misbehaviour or incapacity against the Chief Justice, exercise judicial power by summoning witnesses, administering of oath, hearing evidence, determining questions of fact and casting the burden on the Chief Justice to ‘disprove’ the allegations with the view to coming to a determination on questions of fact and findings of guilt.

 “The exercise of judicial power by the said Select Committee, in the circumstances, contravenes the provisions of Article 4(c) of the Constitution, amounts to a willful usurpation and/or arrogation of the Judicial Power of the People and ultra vires the Constitution of Sri Lanka,” the submissions said.

The written submissions also challenge the supremacy of Parliament, saying that parliament derives its powers from the constitution which is the supreme law of the land. “The Parliament is, therefore, bound by the limitations and restrictions imposed upon it by the Constitution,” they argue.  

Referring to the impeachment procedure for a President as set out in Article 38 (2) the lawyers said that the constitution has ensured that it is the Supreme Court in the exercise of its judicial power determines that the President is permanently incapable of discharging the functions of his office or that the President has been guilty of any other allegations against him following the passage of a resolution of members of the legislature.

Lawyers for the petitioner also submit that the select committee process undermines due process and denies to judges of the superior courts, the fundamental guarantee of equality before the law, the equal protection of the law and the presumption of innocence which the constitution guarantees to all other citizens.

According to the Petitioner, Article 13(5) of the constitution guarantees to all persons the presumption of innocence and that the burden of proof cannot be shifted to an accused unless sanctioned only by law. Standing Order 78A on the other hand provides for the judge under investigation to appear before the select committee and provide evidence to disprove the allegations against him – thereby shifting the burden of proof to the accused judge in violation of Article 13(5). In criminal cases, the burden of proof is on the prosecution and not the defence.

The submissions argue that Standing Order 78A is a draconian piece of a mere “rule” introduced, ad hominem as it were, on 4th April 1984 to impeach a former Chief Justice, Hon. Justice Neville Samarakoon, QC. “It is an ugly and unpardonable blot on the body politic which has hitherto, with apparent indelibility, remained a stain on the good name and standing of the Sovereign People of the Republic of Sri Lanka,” the submissions state.

The lawyers also state that Article 107 (2) of the Constitution pertaining to the mechanism for the removal of a judge of the Superior Courts “does not and could not have intended the Judges of the Superior Court to be at the mercy of the Parliament acting as the accuser, judge and the executioner, when the Constitution by its provisions relating to the independence of the judiciary, has sought to protect and preserve the judiciary from the very influence and interference of the Parliament.”