By Basil Fernando –
With the quashing of the appointment, report and any decisions of the Parliamentary Select Committee by the Court of Appeal, a serious question will arise in the event that the government proceeds with the impeachment, removes the incumbent Chief Justice and appoints a new Chief Justice. Such an appointment can be challenged on the basis of the judgement by the Supreme Court and the Court of Appeal, on the grounds of unconstitutionality and illegality.
The Supreme Court, by its interpretation dated 1.1.2013 (delivered by the Court of Appeal on 3.1.2013 as required by law), determined that Standing Order 78/A does, in fact, contravene Article 107(3) of the Constitution. When the case filed by the Chief Justice challenging the report of the seven members of the PSC came up in the Court of Appeal, the arguments were heard fully and the Court made a final order. A Writ of Certiorari was issued, quashing the report of the Parliamentary Select Committee.
On the basis of these two judgments, the removal of the incumbent Chief Justice will be invalid and therefore she will continue to hold office. Under such circumstances, a new person for the same post is unnecessary and therefore cannot be appointed.
Thus, there will be an unresolvable constitutional deadlock.