Impeachment Of CJ: Path To Standing Orders?
By Kamal Nissanka -November 14, 2012
Kamal Nissanka
The impeachment of the Chief Justice of Democratic Socialist Republic of Sri Lanka is by every mean seems to be a judicial function. In this context it is vital and interesting to see how the Select Committee appointed by the Speaker of the Parliament acquired its jurisdiction.
Article 4(c) of the 1978 Constitution stipulates on judicial power of the people as follows:
Article (4)c-the judicial power of the People shall be exercised by Parliament through courts, tribunals, and institutions 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 People may be exercised directly by Parliament according to law.
According to the above article judicial power of the people is unequivocally vested in the courts, tribunals and institutions created by law (e.g.: Rent Boards)
According to article 4© of the constitution, Parliament can act judicially in regard to matters relating to privileges , immunities and regarding powers of Parliament and its members.
A literal interpretation of the Article 4© clearly manifests that the Parliament did not possess jurisdiction to investigate an impeachment motion when the constitution was passed in 1978.
Then a question arises as to whether the parliament could grab judicial power directly for a subject which is not falling under privileges, immunities.
Impeachment of Superior Court Judges
It is clear that the Article 107(1) is regarding appointment of judges while Articles 107(2) and 107(3) are regarding impeachment of a judge.
Article 107(2) states as follows: Every such judge shall hold office during good behavior 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 misbehavior or incapacity.
Provided that no resolution for presentation of such an address shall be entertained by the Speaker or placed in the on the order paper of parliament, unless notice of such resolution is signed by not less one third of the total number of members of parliament and sets out full particulars of alleged misbehavior or incapacity .
Article 107(3) states as follows: Parliament shall by law or by standing orders provide for all matters relating to the presentation of such an address including the procedure for passing of such resolution the investigation and proof of the alleged misbehavior or incapacity and right of such judge to appear and to be heard in person or by representative .
When one scrutinizes the above two Articles of the constitution the steps that would be taken for an impeachment motion would be in two stages Read More
