Impeachment: A Host Of Questions Can Be Raised
By The Civil Rights Movement -November 16, 2012
Chief Justice
A host of questions can be raised following recent events regarding the Chief Justice of our country. A survey of developments involving the independence of the judiciary can go way back to the 1972 Constitution, to the de facto sacking of judges by the 1978 Constitution, the summoning of Supreme Court Justices Wimalaratne and Colin Thomé before a Select Committee of Parliament, the attempted impeachment of Chief Justice Neville Samarakoon, the physical attacks against and killings, in a later era, of lawyers and litigants engaged in fundamental rights cases. Subsequently came the allegations levelled against Chief Justice Sarath Silva and the moves to impeach him. Along with disappointment at the content of several judgments of the Supreme Court (among which are that relating to the Eighteenth Amendment) many lawyers and laymen alike have watched with dismay the conferring of state benefits and positions on family members of judges and on retired judges. Most recently we have had the events concerning the Magistrate’s court of Mannar, the conflict between the Judicial Services Commission and the President and the physical attack on the judge holding the position of Secretary of the JSC.
These are all matters of importance and should not be disregarded by anyone concerned about the independence of the judiciary in our country. However they do not, in the view of the Civil Rights Movement (CRM), affect the question of immediate urgency which is addressed below.
The action against the present Chief Justice
Charges have been framed and widely publicized against the current Chief Justice, and proceedings to remove her from office have been commenced. (In this context the term “impeachment” simply means the process of removal from office). The procedure is to be inquiry by a Select Committee of Parliament. The question we raise is both the constitutionality and the appropriateness of this procedure.
When similar proceedings were commenced against Chief Justice Neville Samarakoon in 1984 CRM in a telegram to the Speaker said:
The proposal is unconstitutional as it violates the concept of the independence of the judiciary which is part of the basic structure of our Constitution. The actions of such a Select Committee would be ultra vires the powers of Parliament as they are not ancillary to the exercise of legislative power. Parliament has no judicial power (except in respect of its own privileges). Parliament enjoys no supervisory function over judges, in respect to whom its power is limited to removal from office for proved misbehaviour or incapacity. Such misbehaviour or incapacity has to be proved by proper procedure as envisaged by Article 107 of the Constitution. It follows that any inquiry must be by an independent judicial tribunal similar to that provided under the Judges Inquiry Act of 1968 in India. In Sri Lanka no such procedure has yet been created. … The fact that so far this machinery has not been provided does not justify parliament resorting to unconstitutional methods which in effect undermine the independence of the judiciary.
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