The impeachment of Chief Justice is unconstitutional and any citizen or the Chief Justice herself can challenge before the Supreme Court for the unconstitutionality of such a resolution

(Lanka-e-News -05.Nov.2012, 11.30PM) Some members of the Sri Lankan parliament presented a resolution for the impeachment of the Chief Justice of Sri Lanka. The speaker tabled the resolution before the Sri Lankan parliament a few days ago.

No one except Mahinda Rajapakse, the President of Sri Lanka, states that the Government is not harassing the Judiciary.

World community is aware that the Rajapakse has already established a Military state.

However, impeachment of Chief Justice must be conducted according to the provisions of the Constitution of Sri Lanka and in a manner specifically stated in the Constitution.

Speaker or any other person has no authority to use any other method of impeachment other than the method described by the Constitution.

Article 107 specifically stated as follows:

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

(3) Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.

(4) Every person appointed to be or to act as Chief Justice, President of the Court of Appeal or a Judge of the Supreme Court or Court of Appeal shall not enter upon the duties of his office until he takes and subscribes or makes and subscribes before the President, the oath or the affirmation set out in the Fourth Schedule.

Constitution does not mandate what is “proved misbehaviour ”

There are other two requirements to be satisfied before the speaker placed on the order paper.
(1) Signed by not less than 1/3rd of the total number of members of Parliament
And
(2) Sets out full particulars of the alleged misbahiviour

If the speaker failed to comply the procedure as stated under the constitution, such action will be considered as an abuse of power and in noncompliance of the Constitution. The ultimate result would be that such a resolution by the speaker will become null and void.

Speaker has no discretion to deviate to any other way not provided by the Constitution as he thinks fit under the circumstances.

Speaker’s such action can be challenged before the Supreme court as the Supreme court is the final authority to interpret the constitution.

The Constitution does not state that the “prima facie” allegations are sufficient to table such a resolution before the Parliament.

Further the said article specifically stated that “Provided that no resolution for the presentation of such an address shall be entertained by the Speaker”.

Therefore, any citizen of Sri Lanka or the Chief justice himself can file a petition to the Supreme Court to invalidate the speaker’s action if the speaker violated the provisions of the Constitution .

The Supreme Court has the legal authority to declare such an action null and void in violation of the Constitutional provisions.

The precise role of the judiciary in to interpret the Constitution and the statutes enacted under it. Sri Lankan Constitution specifically states that the Supreme Court is the ultimate and single authority on the subject of constitutionality. Judicial interpretation remains the chief means of keeping the Constitution in tune with modern life.

Therefore I urge the Sri Lanka Bar association which I am a member and the all attorney in Sri Lanka to challenge the unconstitutionality of the impeachment resolution. 

By Premalal Ranasinghe from New York