Impeachment Motion: President expected to remove the Chief Justice soon

As expected the Impeachment Motion against the Chief Justice Shrani Bandaranayake was passed. As the ruling UPFA had the majority and they have passed the impeachment motion against the Chief Justice with two-third majority. The motion against the chief justice was adopted yesterday in the parliament with 155 votes which was just little more than the two-third majority in a parliament of 225 totaling number of members.

Now, the parliament will address to the President saying that ‘we have made a determination by a majority of votes and we want you to consider our request.’

The parliament has adopted the motion without any amendments. In fact if in case the opposition would have introduced any amendment, they would have been defeated, but they would have had the satisfaction of having in record their dissenting views in the form of a resolution. Unfortunately they haven’t, but they only debated.

According to Standing Order 78(A) section 7, once the motion is passed in Parliament, the Speaker would have to present the motion to the President of behalf of Parliament. Thereafter according to Article 107(2) of the Constitution the Chief Justice has to be removed by an order of the President.

According to the constitution it is now left to the President to act upon, on the determination of the Parliament passed on Friday on the removal of the Chief Justice Shirani Bandaranayake.

It is expected that President may give his final decision and he may do it most probably in the beginning of next week and by next week the country might have a new Chief Justice.

In the meantime after the motion against the Chief Justice was adopted in the Parliament, it was unfortunate that the UNP MP Lakshman Kiriella and TNA MP M.A. Sumanthiran has said that the resolution passed in the parliament was flawed and invalid.

But TNA MP M.A. Sumanthiran has gone a step further and said that since the resolution was flawed, the President cannot act on it. He added “It’s flawed; the resolution tabled was to a point a select committee and nothing else. If the President acts on it, he will be acting unconstitutionally”.

Both the opposition parliamentarians have made misleading statements and they have failed to explain the basis on which they say it as ‘flawed’. How are they explaining it as flawed. They say that the parliamentary select committee finding has been taken up.

But the opinion as expressed by the Speaker Chamal Rajapaksa was to the point by stating that that previously Mr. Anura Bandaranayake has made a ruling that the Court has no right to interfere with the findings and the proceedings of the parliament.

Therefore going on that basis, the determination of the Supreme Court and the court of Appeal in the writ application are void in law and has no effect whatsoever in the Parliament.

Because Parliament matters are only determined by the Parliament and Supreme Court has no right.

In fact one has to ask the Supreme Court as to how they have arrived at that determination that it was unconstitutional and the matter was referred by the Court of Appeal to the Supreme Court. But the Constitution says according to Article 125 (1) .. to hear and determine any question relating to interpretation of the Constitution, accordingly, whenever any such question arises in the course of any proceedings, in any other court or Tribunal or other institutions empowered by law to administer justice or to exercise judicial or quasi-judicial functions , such questions shall forthwith be referred to the Supreme Court for determination….”

Therefore, the reference for a determination or interpretation should have come from the institution such as from the Parliamentary Select Committee. It must be noted that the Court of Appeal did not has the jurisdiction on its own without the Parliamentary Select Committee which was the institution which should have referred the matter to the Supreme Court.

In fact if the Parliamentary Select Committee wanted to raise this matter, then they would have referred it to the Supreme Court. They could have asked for the determination or its interpretation. They did not do that. So the Court of Appeal never had any jurisdiction to go and try to interpret or ask the Supreme Court to interpret, something that occurred in the Court of Appeal.

The reference has to be from the institution in which where the issue arose. So the issue should have arisen in the PSC and the PSC Chairman should have decided by himself or by majority votes as there is a constitutional matter for interpretation and we will refer to the Supreme Court. Therefore as stated above, the Court of Appeal has no right to go into this matter.

Furthermore, there were 4 opposition members in the Parliamentary Select Committee and there were no mentions anywhere that even they have pointed out when they were participating in the proceedings to refer to the Supreme Court.

It should be noted that these matters were gone into by the Supreme Court and Appeal Court wrongfully without jurisdiction.

The first argument is that the Supreme Court and the Court of Appeal has no jurisdiction under the Constitution to interpret the law because there was no proper reference.

The second argument is that even if they had the right to interpret lawfully, the Parliament is not bound by those interpretations. Parliament can give its own interpretations.

Those two are two different distinguish points of law.

No 3, there is an important point everyone was overlooking. It was earlier told even by the Minister of Information Keheliya Rambukkawella that the Speaker would make a statement when the Parliament commence on the 8th January, about this court’s rulings. But the Speaker did not make a statement as expected. When asked why the Speaker has not promptly responded to that court’s ruling, we learnt that those rulings were never referred to him in his capacity as the Speaker of the Parliament.

In fact the courts should have referred their determinations to the Speaker of the Parliament.

Now an important question arises. Why did the Supreme Court, as well as the Court of Appeal failed to convey their much hyped determinations to the Speaker of the Parliament?

Their failure to refer their rulings to the Parliament means that they knew pretty well that their ruling was wrong.

It shows that both courts have failed to comply and that is why their determinations are void in law.

If the Constitution is clear you go accordingly. But if a body, for example as said earlier, if the Parliamentary Select Committee needs an interpretation they would have gone directly to the Supreme Court.

Here on their own, they mean to say that there is a question of interpretation, therefore we are interpreting and therefore you are bound.

OK they may say all these, but the question is why they did not convey all these things to the Speaker of the Parliament.

If they have not referred to the Speaker of Parliament, then who can stop the proceedings if in case the courts interpretations are deemed lawful.

So the questions arise why they did not convey?

It has to be construed as they were afraid to officially convey to the Speaker of the Parliament. Not because that it was wrong, but because they seems to be worried that the judges may be charged for contempt.

- Asian Tribune -