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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2673

Supreme Court judge – Chief Justice: A Demigod? Or A Creature of the Law?

By K.T.Rajasingham

Colombo, 01 December, ( Sri Lankan Parliamentarians from various political parties are seriously considering to present a resolution in the parliament to remove the Head of the Supreme Court /judges who have since of late delivered sentences which do not fit within the four corners of the law of the land.

Regarding this move, a couple of parliamentarians spelled out to Asian Tribune that since of late, supreme court has exerted its position beyond the realm of law to send in direction to the executive branch of the country which is something unbecoming of the judiciary.

Parliamentarians who wish to remain anonymous said that the spirit of the separation of powers clearly indicates that Legislative, Executive and Judiciary branches should remain as watertight compartments and not supposed to overlap into other’s realm.

The parliamentarians pointed out that courts, tribunals and institutions created and established by existing written law of the country for the administration of the justice are created and established by parliament and it may replace or abolish or amend the powers, duties, jurisdiction and procedures of such courts, tribunals and institutions.

They said, the retirement age of judges of the supreme court is sixty-five years and the constitution does not has provision to grant any extension to any Supreme Courts judge after he or she reaching the mandatory retirement age of sixty-five.

The parliamentarians also pointed out that Supreme Court judges including the Chief Justice do not enjoy any immunity from suits after their retirement. Once a Supreme Court judge retires anyone could challenge any judgment made by the Chief Justice of the Supreme Court or by any other judges under fundament rights. As long as there is no immunity they have to face such law suits against them as an ordinary citizen, as they have lost all their privileges they enjoyed earlier as a judge or judges of the Supreme Court prior to their retirement.

They clarified those members the Executives could be subjected to strictures. Members of the Legislature too could be recalled through general elections. Even the chief executive - the President of the country too could be impeached according to the provisions of the constitution.

But in the case of judges they are to abide by the law, interpret the law and expected to maintain the decorum of the office they hold.

Parliamentarians said Article 107 of the constitution clearly gives out procedures connected with "Appointments of Judges of the Supreme Court and Court of Appeal."

Article 107 (1) deals with the appointment, the Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and the Court of Appeal . The provision says, "They shall be appointed by the President of the Republic by warrant under his hand."

Regarding the Removal of the Judges, Article 107 (2) & (3) deals about it:

(2). Every such judge shall hold office during good behavior, and shall not be removed except by an order of the President after an address of Parliament, by a majority of the total member of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehavior 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 misbehavior or incapacity.

Regarding the procedure needed to adopt such a resolution to remove a Supreme Court Chief Justice or a judge, clause (3) of the Article 107 says: Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure of passing of such resolution, the investigation and proof of the alleged misbehavior or incapacity and right of such Judge to appear and to be heard in person or by representative.

Therefore to remove a judge of either Supreme Court or Appeal Court, also either the Chief Justice or the President of the Appeal Court, a total of 113 votes of the parliamentarian needed from the total of 225 members of Parliament.

Parliamentarians who spoke to Asian Tribune on condition of anonymity pointed out a judge of the Supreme Court who might hold a highest position in the Judiciary, is not a demigod but the creature of the constitution appointed to uphold the law of the land.

- Asian Tribune -

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