Impeachment: Full Text Of The Supreme Court Determination Today
By Colombo Telegraph -January 3, 2013
The Court of Appeal has today read out the interpretation of the Supreme Court that “The PSC has no legal power or authority to find a Judge guilty because Standing Order 78A is not a law.”
Read the full text of Supreme Court determination here
Chandra Jayaratne
The Court of Appeal on 20/11/2012 in the course of considering several writ applications that came up before it has referred to the Supreme Court in terms of Article 125 of the constitution the following question relating to the interpretation of Article 107 (3) of the Constitution
“Is it mandatory under Article 107 (3) of the Constitution for the parliament to provide for matter relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof etc., of any alleged misbehavior or incapacity in addition to matters relating to the investigation of the alleged misbehavior or incapacity?”
This question was referred in respect of all seven writ applications considered by the Court of Appeal on that day.
It is appropriate at this stage to set out the provisions of Article 125 (1) which is as follows.
“The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution and accordingly, whenever such question arises in the course of any proceedings in any other curt or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasai-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceeding s be stayed pending the determination of such question.”
The preamble to the 1978 Constitution assures to all people inter alia “FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and The INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the dignity and well being of succeeding generations of the people of SRI LANKA”.
The power of removal of the judges of the Supreme Court and the Court of Appeal upon an address of parliament is check provided by the Constitution to sustain the balance of power between the three organs of the Government. The exact nature of the investigation contemplated by Article 107 (3) is a question which has not received judicial attention. In this reference it is necessary to consider this particular matter as it has a link to the question referred to this Court by the Court of Appeal.
Without a definite finding that the allegations have been proved no address of parliament could be made for the removal of a judge. Thus the ‘Investigation’ referred to in Article 107 (3) is an indispensable step in the process for the removal of a judge of the Supreme Court and the Court of Appeal. The investigation leads to a finding whether the allegations made against the Judge have been proved or not.
The finding that the charged allegation has been proved is the indispensable legal basis for the address. Thus a finding, after the investigation contemplated in Article 107 (3), that the allegation against the Judge has been proved is the final decision which directly and adversely affects the constitutional right of a Judge to continue in office. Read More
