CJ’s Response In Full: Select Committee Has No Jurisdiction To Hear And Determine The Impeachment
By Colombo Telegraph -November 25, 2012
“We state that the select committee has no jurisdiction to hear and determine the impeachment motion for the following inter alia reasons; The select committee has no jurisdiction to exercise judicial powers which in this instance it purports to do. Without prejudice to above the purported inquiry violates the Rule of Law, which is the basis of governance and the gravamen/ foundation upon which the sovereign people have decided that they be governed and their judicial power exercised.” says Chief Justice’s lawyers. 
CJ
We publish the full text of the reply given by the Chief Justice;
…………………………………
………………………………… Dear Sir,
We regret that our client was not provided with more time.
The letter dated 14/11/2012 was delivered to our client’s official residence at approximately 7 pm on 14/11/2012 asking her to respond to the 14 alleged charges by the 22/11/2012, which is approximately one week’s time.
By letter dated 15/11/2012 sent by us on behalf of our client, and our client by our letters dated 16/11/2012 and 17/11/2012, requested further time to respond to the 14 alleged charges.
The request of our client for further time has not been permitted.
In the limited time available, we respond as hereinafter. We request that the details asked for be furnished, and request further time to respond morefully.
Our client denies the purported charges. Our client is totally innocent of the purported charges which are baseless, groundless and frivolous.
Our client has at all times been independent, and has refused to bow to pressure. In the circumstances, I request that an inquiry be held by lawfully appointed body consisting of lawfully appointed body consisting of eminent and independent persons not politically affiliated.
Our client is convinced that she will be exonerated at such an inquiry.
We state that the select committee has no jurisdiction to hear and determine the impeachment motion for the following inter alia reasons:-
(1) The select committee has no jurisdiction to exercise judicial powers which in this instance it purports to do.
(2) Without prejudice to (1) above the purported inquiry violates the Rule of Law, which is the basis of governance and the gravamen/ foundation upon which the sovereign people have decided that they be governed and their judicial power exercised.
The aforesaid matters would be dealt with briefly hereinafter and more fully if necessary.
SOVEREIGNTY IS IN THE PEOPLE
1. The people are the sovereign in the Democratic Socialist Republic of Sri Lanka.
2. The sovereignty of people is recognized by the constitution.
3. The sovereignty of the people is not granted / conferred / given by the constitution – it is merely recognized by the constitution.
The sovereign people, that is, the sovereign in the land, have determined the manner in which their sovereignty is to be exercised.
No one at all can interfere with such determination of the sovereign.
It should be pointed out that in Sri Lanka the sovereign are the people and not the president, parliament or judiciary. In this context, it is noted that parliament is not the sovereign of this country.
Article 4(c) of the constitution states as follows:-
“the judicial power of the People shall be exercised by parliaments through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law;”[emphasis ours]
In the circumstances Parliament or a Select Committee of parliament cannot exercise the judicial power save and except in the exception set out in article 4(c) which is in regard to matters privileges, immunities and power of people and its members, which exception is not relevant to these proceedings.
The Select Committee purports to exercise judicial power in this instance.
Article 107(2) states that a judge can be removed only for proven misbehavior or incapacity. In this case the allegations are of misbehavior.
The decision or determination whether or not a person is guilty of misbehavior is clearly an exercise of judicial power.
In the circumstance it is only a court that can determine whether or not a judge is guilty of proven misbehavior.
Parliament or its Select Committee cannot determine whether a judge is guilty of proved misbehavior since such determination or decision is the exercise of judicial power.
Parliament cannot by the enactment of standing orders confer to itself judicial power and/or usurp judicial power, which the sovereign (the people of Sri Lanka ) have vested in the courts (parliament through courts).
Thus it is submitted that the select committee has no jurisdiction to hold this purported inquiry.
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