Dr. Mark Cooray’s Misrepresentation Of The Way A Judge Can Be Removed In UK
Basil Fernando
The government, severely criticized for the arbitrary removal of Chief JusticeShirani Bandaranayake, made much out of an article written by Dr. Mark Cooray (published in the government’s mouth piece “Daily News” in three parts). Later it was put into a booklet and widely circulated.
However, what is stated in Dr. Mark Cooray’s article is blatantly wrong.
Dr. Mark Cooray cites what he calls analogous provisions to the Sri Lankan Constitution from the law of other jurisdictions. For example, he cites Articles 33 and 135 of the British Constitutional Reform Act of 2005, which laid down the rules for the removal of judges in Northern Ireland, and also civil and legal provisions from the United States. Then he states that, “Like the Americans, the British too have placed the fullest confidence in their legislature to be able to make a considered decision to remove a judge of the highest court”.
Dr. Mark Cooray has completely misinformed himself about the said Article 33 and the procedure relating to the removal of a judge in England. He assumes that mere address in the Parliament could lead to the dismissal of a judge. However, its scope is quite different.
He wrote,
“Britain is the head of the Commonwealth and we may perhaps gather what exactly was meant in terms of the Latimer House Principles by studying the British Constitutional Reform Act of 2005 which was promulgated long after the ratification of the Latimer House Princples was formulated. One of the most radical aspects of the British constitutional reform was that a new 12-member Supreme Court was created to be highest court in Britian and it would function outside the House of Lords breaking the centuries of British tradition. The interesting thing is to note how these judges of the Supreme Court were to be removed. Article 33 of the British Constitutional Reform Act of 2005 is as follows:
“A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament.”
That is all this huge 323-page Act of Parliament says about the removal of judges of the Supreme Court. This provision to remove Supreme Court judges basically follows the time honoured British practice.
There is no talk of an ‘impartial tribunal’ or about filing charges, hearings and the right to defend oneself. Somebody files a motion in parliament and after due debate, Parliament will decide whether to sack or retain the judge. “
