The President has no legal authority to appoint a new Chief Justice or to remove the present CJ even if the Parliament passed the resolution

The International community has already declared and has warned the President that they will reject any new appointment of CJ

(Lanka-e-News -11.Dec.2012, 1.30PM) It is the international law that when there is no due process or fair hearing the proceedings are voidable and not binding the parties. This principle is a fundamental right as stated in the Sri Lankan constitution. Therefore any actions against the constitution deem void not voidable. It is the opinion of the international legal community that a written constitution is supreme not the Parliament. At the time the constitution is formed, the Parliament has given up their parliamentary sovereignty to the judiciary. The Sri Lankan constitution is no different than Pakistan and the Super power of the United States Constitution. In the United States the Supreme Court has legal authority to strike any law that is unconstitutional or any act that violates the Constitution. The U.S. Supreme Court has found such acts unconstitutional. However the Speaker and the Sri Lankan Parliamentarians wrongly believe that they have power to dictate terms to the Judiciary and can interfere with Judiciary. Executive President that was created by the constitution and has no power to remove CJ based on the unconstitutional finding of the PSC. I am inserting a case as it is an important case for our lawyers and the members of Sri Lankan parliament to learn how the constitutions mandate the power to the Supreme Court. Sri Lanka is facing a similar situation today. Our Supreme Court has to learn how much power they have been given by the Sri Lankan constitution, which they do not. Marbury v. Madison, became one of the most important Supreme Court decisions in United States history. “ Circumstances of the Case --------------------------------------------- In November 1800, President John Adams, a Federalist, lost his bid for reelection to Thomas Jefferson, a Republican. The Federalists also lost control of Congress in the election. For the few months before the new President and Congress took office, however, Adams and his Federalist Party still had control. During these months, Adams persuaded Congress to pass a new law, the Judiciary Act of 1801. This act gave Adams the power to appoint several new federal judges. The Federalists hoped to fill the nation's courts with people who would be opposed to the policies of the incoming Republican administration. Adams was generally successful in this effort, appointing some 39 new judges. Adams's Secretary of State was to deliver the commissions, or official documents authorizing the appointments. The Secretary of State, though, failed to deliver the commissions to three new justices of the peace before Adams's term of office ended. One of the commissions was to go to William Marbury. When Thomas Jefferson became President in March 1801, he learned of Adams's attempt to pack the court with Federalist judges. He also discovered the failure to deliver the remaining commissions. To prevent these Federalists from becoming justices of the peace, Jefferson instructed his Secretary of State, James Madison, to refuse the appointments. Marbury went to the Supreme Court in an attempt to gain his post. He wanted the Court to issue an order forcing Madison to give Marbury his commission. The Judiciary Act of 1789 had given the Supreme Court the power to issue such an order.

The Court's Decision In a unanimous decision, written by Justice Marshall, the Court stated that Marbury, indeed, had a right to his commission. But, more importantly, the Judiciary Act of 1789 was unconstitutional. In Marshall's opinion, Congress could not give the Supreme Court the power to issue an order granting Marbury his commission. Only the Constitution could, and the document said nothing about the Supreme Court having the power to issue such an order. Thus, the Supreme Court could not force Jefferson and Madison to appoint Marbury, because it did not have the power to do so. While Marbury never became a justice of the peace, the Court's ruling in Marbury v. Madison established a very important precedent. A precedent is a legal decision that serves as an example in later court cases. Chief Justice Marshall's ruling interpreted the Constitution to mean that the Supreme Court had the power of judicial review. That is, the Court had the right to review acts of Congress and, by extension, actions of the President. If the Court found that a law was unconstitutional, it could overrule the law. Marshall argued that the Constitution is the“supreme law of the land” and that the Supreme Court has the final say over the meaning of the Constitution. He wrote,“lt is emphatically the province and duty of the judicial department to say what the law is.” Recent Pakistan Decision ----------------------------------- Recently on July 18, 2012 KARACHI: Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry said the constitution, not parliament, was the supreme entity in Pakistan and that Article 8 of the constitution empowered the Supreme Court to strike down any legislation which encroached upon the basic rights of the citizens. “ Both in India and Pakistan, all political institutions get their powers from the written Constitution. According to both the Constitutions, the superior judiciary has the power to nullify any law passed by the parliament. The Supreme Court of Pakistan has declared laws passed by parliament unconstitutional. But the right of the judiciary to declare any law unconstitutional does not make the Constitution supreme because parliament can amend the Constitution.” However the Sri Lankan constitution is not like the Indian and Pakistan constitution. The Sri Lankan Constitution is similar to American constitution as the Parliament has no power to amend some the provisions of the constitution. The impeachment CJ triggered when the “ The Divi Neguma Bill” rejected by CJ. She declared that the parliament even if had been passed by 2/3 majority, The Neguma Bill further required a mandate of the people as the People are Supreme under the constitution. As the PSC is unconstitutional the Parliament even if passed the resolution to remove the Chief Justice is void as the Parliament brought the resolution based on the decision of the unconstitutionally appointed committee which does not have judicial power. Further assuming arguendo the PSC has judicial power the procedure adopted by the PSC is again unconstitutional as the committee has failed to adhere due process and a fair trial as the constitution dictates. Further if the Sri Lankan President removed the Chief Justice and reappoints a new CJ, that appointment is deemed unconstitutional as his decision was based on the unconstitutional act of the Parliament as described above. Premalal Ranasinghe (New York)