Did The Chief Justice Get A Fair Trial?
Chandra Kumarage
Some citizens including lawyers have filed petitions in the Court of Appeal seeking writs restraining the Parliamentary Select Committee (PSC) from inquiring into allegations mentioned in the impeachment motion submitted to parliament by some Member of Parliaments (MPs). The court of appeal has referred them to the Supreme Court (SC) since there is a constitutional problem involved. In the meantime some fundamental rights (FR) cases have also being filed in the SC stating that the Standing Order 78 (A) violates FRs under various articles of constitution. Having considered these applications a panel of three judges of the SC has issued notices to the members of the PSC. And everyone knows now that the speaker has made an order to the effect that no court could issue process on the speaker or any committee appointed by him. However the SC has decided to go ahead with the inquiry.
Let us take our memory back to the impeachment inquiry appointed by the speaker to impeach Neville Samarakoon the then Chief Justice (CJ). Mr S. Nadesen QC who represented the respondent CJ took up a preliminary objection that standing order 78 (A) is ultra vires the constitution and that the said select committee had no power to proceed with this inquiry because it violates article 4 (C) of the Constitution which stipulates that except in matters concerning parliamentary privileges the Judicial power of the people has to be exercised exclusively through the courts.
In its report at the conclusion of the inquiry a majority of members (five members) representing the government in the PSC writing a separate report dealt with the objection taken up by Mr Nadesen as Follows. “ While the members of the committee have certain reservations regarding the validity of Mr Nadesan’s contentions particularly in view of the specific provision of Article 107 of the Constitution of the Democratic Socialist Republic of Sri Lanka , this committee feels that notwithstanding any objections it is duty bound to carry out the mandate given to it by parliament according to the terms of reference specified. In carrying out this task the committee is fortified by the fact that the exercise of disciplinary power over the higher judiciary in a large number of countries almost without exception is a right which has been exercised by the parliament. Furthermore under the standing order 78(A) parliament exercise its power in the fulfilment of its duty under Article 107(3) of the constitution.
