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Friday, January 18, 2013 - 05.23 GMT

Constitution duly empowers Parliament to impeach a judge – K. N. Choksy


Former Minister of Constitutional Affairs and President’s Counsel K. N. Choksy (former UNP MP) in an exclusive interview with The Nation said that Article 107 of the Constitution duly empowered Parliament to impeach a judge of the Supreme Court or the Court of Appeal and claimed that the Judiciary had no role to play in that regard. Elaborating further Choksy was of the view that the Legislature had the right to ignore judicial interpretations under separation of powers embodied in the Constitution.

Following are excerpts of the interview.

Q: As an experienced constitutional lawyer and a former minister of constitutional affairs, what are your observations about the Court of Appeal’s upholding the interpretation of the Supreme Court with regard to Justice Shirani Bandaranayake’s writ application?

Our Constitution enacted in 1978 is based on the grun Norm of the Separation of Powers between the Legislature, the Executive and the Judiciary and the Supremacy of Parliament. In those circumstances, Article 107 of the Constitution which provides for the removal of a Superior Court Judge is solely vested with the Legislature. The Judiciary has no role to play. Though the Supreme Court is the interpreter of the Constitution and the Court of Appeal has the power to issue Writs, by reason of the fact that the impeachment mechanism is solely vested with the Legislature, Writs are not issued by courts traversing the domain of the Legislature. This is particularly so in other jurisdictions such as the United Kingdom.

Q: Since interpretations by the Judiciary have caused confusion to an unprecedented level, do you view such interpretations as legal and constitutional?

Though the Supreme Court is the interpreter of the Constitution and the Court of Appeal has the power to issue Writs, the same would not apply to matters solely vested under the Constitution in the Legislature.

Q: Judges of the Court of Appeal or be they of the Supreme Court, they are qualified professionals with high integrity, representing the Judiciary of the Republic. Hence, they do deliver interpretations or judgments quite consistent with the provisions of the Constitution that governs the country. If another component of the country, like the Legislature, decides to ignore such determinations where does the rule of law stand in this country?

The Legislature can choose to ignore determinations of the Judiciary and the Rule of Law will still stand if the determinations of the Judiciary traverse the jurisdiction and the powers of the Legislature. This is so because there is a Separation of Powers under our Constitution.

Q: There are allegations that Justice Bandaranayake’s writ application was given high importance by the Court of Appeal over other cases and that the President of the Court of Appeal hand picked the bench overlooking senior judges in the panel. Would you agree that the Constitution empowers the President of the Court of Appeal to decide on any bench at his prerogative irrespective of seniority of judges in the panel?

The Constitution empowers the President of the Court of Appeal who has the power under Article 146 (2) Proviso (ii) which empowers the President of the Court of Appeal to nominate the Benches of the Court of Appeal. There is no provision or requirement in relation to the seniority of nominating judges in the panel. Since an important question has arisen, the President of the Court of Appeal has nominated a divisional Bench of three Judges.

Q: Has the Court of Appeal committed any wrong by expediting the writ application of the Chief Justice well ahead of the deadline of the impeachment motion debate now proceeding in Parliament?

The Writ Application of the Chief Justice has been heard by the Court of Appeal in an expedient manner due to the fact that the Impeachment Motion stood to be debated in Parliament on January 10 and 11.

Q: You were a Member of Parliament and a senior cabinet minister in the Premadasa and Wijetunge governments. The Supreme Court has upheld that Standing Orders are not law. As a former Parliamentarian and a President’s Counsel how do you view the legality of Standing Orders of Parliament?

The Standing Orders of Parliament relating to the Impeachment procedure have been correctly and constitutionally enacted under the 1978 Constitution and it has been in force and effect for over 30 years. The Constitution and Article 107 (3) specifically provides for the procedure to be enacted by Parliament either by Law or by Standing Orders. This Parliament has done it constitutionally.

Q: Furthermore, Parliament meets under Standing Orders or by Resolution as provided in the Constitution. All laws are passed by Parliament during sessions held under Standing Orders. So, if the Supreme Court interpretation says that Standing Orders are not legal, how could laws passed by Parliament and interpreted by Court be legal as such laws have been passed at sessions held under Standing Orders?

The Court has in this case only interpreted Standing Order 78 made under Article 107 (3). All Legislation to date has been validly passed by Parliament and Parliament has functioned since 1978 under the Standing Orders.

Q: The public are anxious to know the definition embodied in the Constitution as “Parliament shall by law or by Standing Orders”. Could you enlighten public upon this term whether Standing Orders are in compliance or parallel to the term – “Parliament shall by law”?

Article 107 (3) provides Parliament with the option of providing a Superior Court Judge either by Law or by Standing Orders for the procedure for the impeachment. In this case as the procedure only relates to a function of Parliament it has provided for the same by Standing Orders. This is adequate. When Parliament provides for something by Law it is applicable not only to Parliament but the whole country.

Q: The establishment of a Parliamentary Select Committee (PSC) or any other committee of that nature is done under Standing Orders. In the current scenario that procedure had been followed with regard to the impeachment motion of the Chief Justice. As specified under Article 107 (3), such a procedure should lead to an Address to the Executive on the misbehavior or incapacity of the incumbent Chief Justice. Is this procedure right or wrong?

This is the procedure provided for in Article 107(3). The Parliamentary Select Committee conducts an inquiry under the Standing Orders and reports its observations and findings to the Parliament, Thereafter Parliament as a whole debates it and if the Resolution is carried by a majority of all the Members of the House i.e. of all 225, either 113 or more voting in favor of the proved misbehavior of the impugned Superior Court Judge, the Speaker must communicate the same to the President by way of an Address. This is the procedure which is both correct and constitutional.





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Last modified: January 18, 2013.

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