A legal primer: The impeachment of the Chief Justice in Sri Lanka
Photo from MSN News-10 Jan, 2013
interviewed Luwie Ganeshathasan, a Researcher in the Legal and Constitutional Unit of the Centre for Policy Alternatives (the institutional home of this website), on several key issues arising from the impeachment proceedings against the current Chief Justice of Sri Lanka, Shirani Bandaranayake.
Is there provision in the constitution to impeach the CJ?
Yes. The Constitution in Article 107 provides for the impeachment of not only the Chief Justice, but any judge of the Supreme Court or the Court of Appeal.
Has it happened in the past, how and why?
Yes, on several occasions, attempts have been made to impeach judges of the superior courts.
In 1983, Justices Wimalaratne and Colin-Thome of the Supreme Court were brought before a Parliamentary Select Committee based on an allegation made by a person involved in a case heard by the Judges. The Select Committee, while not upholding the personal allegations against the judges, expressed reservations about the verdict and faulted the judges for not allowing the Attorney General to address them on behalf of the State.
In 1984, impeachment proceedings were instituted against Neville Samarakoon, the then Chief Justice, on the allegation that he had made a public speech which was critical of the then President J.R. Jayewardene. A Parliamentary Select Committee (PSC) chaired by Ranasinghe Premadasa first examined the allegation. The majority decision of this committee was unfavourable to the Chief Justice. Subsequently a resolution requesting the removal of the Chief Justice was tabled in Parliament. It is only subsequent to this that Parliament promulgated Standing Order 78A (which features prominently in the current controversy). As a result, a second Parliamentary Select Committee was appointed.
S. Nadesan Q.C., who appeared on behalf of Chief Justice Samarakoon, argued that inquiring into allegations against the Chief Justice was nothing less than the exercise of judicial power. As per the Constitution, judicial power can be exercised directly by Parliament only in relation to parliamentary privileges (which was not relevant to that case). According to the Constitution, in all other instances, Parliament can exercise judicial power only through courts and tribunalsestablished by law.
This PSC’s decision was also split along party lines, the majority opinion (of the Members of the UNP) was that the Chief Justice’s speech, while not amounting to “proved misbehaviour”, constituted “a serious breach of convention and had thereby imperilled the independence of the judiciary and undermined the confidence of the public in the judiciary”. The minority opinion stated that, “The signatories to this statement [Anura Bandaranaike, Sarath Muttetuwegama and Dinesh Gunawardena (the Chief Government Whip at present)] while conceding that Mr. Nadesan’s argument have considerable cogency ─ are not in a position to come to a definite conclusion on this matter. We would urge that H.E. the President could refer this matter to the Supreme Court for an authoritative opinion thereon – under Article 129(1) of the Constitution.”
In June 2001, an impeachment motion against Chief Justice Sarath N. Silva was tabled in Parliament with the signatures of 77 members of Parliament. The then Speaker, Anura Bandaranaike, made a special ruling in relation to the restraining order against any further parliamentary proceedings on this matter, issued by the Supreme Court in two fundamental rights applications filed in the court (SC FR 297/2001 and SC FR 298/2001). Subsequent to this ruling, the motion calling for a resolution of impeachment was placed on the order paper ofParliament. However, because of the political instability that ensued in the following months no further steps in the impeachment process was taken.
Why has the impeachment of the present CJ run into controversy?
