5 December, 2020

Blog

Impeachment: Full Text Of The Submissions Made By Kanag–Isvaran P.C. Before SC Today

By Colombo Telegraph

The following submissions made by President’s Counsel Kanaganayagam  Kanag–Isvaran  before the Supreme Court today (13th December 2012) in the petition filed by Chandra Jayaratne seeking a Writ and Constitutional interpretation re impeachment process by the Parliamentary Select Committee;

 

Kanag--Isvaran P.C.

                           S.C. Reference 3/ 2012.

My Lords, it is respectfully submitted, that we are at a critical juncture in the history of our nation.

 

If I may borrow a phrase from history, “the Babarians are at the gate of the Temple of Justice”. You let them in, they will destroy all that is sacred to us and install in the alter of Justice false prophets.

The Preamble to the Constitution describes the Constitution –

                 “as the SUPREME LAW of the

   Democratic Socialist  Republic of Sri Lanka”

The Constitution is Suprema lex, the paramount law of the land, and there is no organ of State above or beyond it.

Be it the Executive or the Legislature or the Judiciary, it derives its authority from the Constitution and it has to act within the limits of its authority.

The doctrine of the supremacy of the Constitution means:

  “Neither of the three constitutionally separate organs of State

     can, according to the basic scheme of our Constitution today,

          leap outside the boundaries of its own constitutionality assigned

            sphere or orbit of authority into that of the other. This is the logical

                  and natural meaning of the principle of Supremacy of the

                 Constitution”.[1]                        

No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution.

The Supreme Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits.

It is for the Supreme Court to uphold the constitutional values and to enforce the constitutional limitations.

That is the essence of the rule of law.

The basic assumption underlying the views expressed above is that each of the three organs of the State – The Executive, the Legislature and the Judiciary has its own orbit of authority and operation. It must be left free by the other organs to operate within that sphere. It is not for one of the three organs of State either to correct or to point an accusing finger at the other merely because it thinks that some error has been committed by the other when acting within the limits of its own powers.

But, if either the Executive or the Legislature exceeds the scope of its powers, it places itself in the region where the effects of that excess should be capable of removal by the Judiciary which ought to redress the wrong done when properly brought up before it.

A scrupulous adherence to this scheme is necessary for the smooth operation of our Constitutional mechanisms of checks and balances.

It implies due respect for and confidence in each organ of our Republic by the other two.

My Lords,

The constitutional function of Your Lordship’s Court is to be the final judge of the constitutionality of all acts purported to be done under the authority of the Constitution and to ensure that the constitutionally circumscribed powers entrusted to the other organs of the State are scrupulously discharged and that they do not transgress the limitations of their own constitutionally  circumscribed powers by trespassing into what is properly the domain of the Judiciary, the other constitutional organ.

When a question arises whether an authority under the Constitution has acted within limits of its powers or exceeded it, it is my respectful submission that it can certainly be decided by the Supreme Court, because every constitutional question concerns the allocation and exercise governmental power.

Indeed, I respectfully submit, that it would be the constitutional obligation of the Supreme Court to do so.

It is for the Supreme Court to uphold the constitutional values and to enforce the constitutional limitations.

Where there is manifestly unauthorized exercise of power under the constitution, it is the duty of the Supreme Court to intervene.

It intervenes only to say what the limits are and whether the limits on the power conferred by the constitution on a particular organ of State have been observed or there is a transgression of such limits.

Indeed it is the constitutional obligation and duty of the Supreme Court to do so.

The wisdom of man has not yet been able to conceive of a government  incapable of mischief. Because in the last analysis a great deal must depend on the wisdom and honesty, integrity and character of those who are in charge of the Legislature and the enlightened and alert public opinion.

My Lords,

The Constitutional scheme indicates that it is only the Members of Parliament acting jointly in the specified minimum number who can bring about the initiation of the procedure for removal of a judge, all other modes and persons being excluded.

Because of the provisions of Article 4(c) the machinery for investigation and proof must necessarily be outside Parliament and not within it.

Proof which involves a discussion of the conduct of the Judge must be by a body which is outside the Parliament.

The word ‘proved’ also denotes proof in the manner understood in our legal system – and in harmony with Article 13(5) – which guarantees the presumption of innocence.

A finding that some fact is proved must, therefore, be the result of a judicial process. That machinery has to be outside Parliament and not within it.

If this be so, it is a clear pointer that the Parliament no role to play till misconduct or incapacity is found proved.

Parliament comes in the picture only when a finding is reached by that machinery outside Parliament, that the alleged misbehaviour has been proved.

This reflects the constitutional philosophy of both the judicial and legislative elements of the process of removal.

The ultimate authority remains with the Parliament in the sense that even if the “judicial forum” records a finding that the judge is guilty of the charges, it is yet open to the Parliament to decide not to permit an address to the President for removal. (The act of removal by the President is an executive act.)

But upon a finding that the judge is not guilty, the legislative element in the process of removal has no further option.

Therefore, the Legislature cannot arrogate to itself through Standing Order 78A – which is not “law” within the meaning of the Constitution, the right to exercise “judicial power’ of the People in violation of Article 4 (c).

The constitutional scheme, seeks to achieve a judicious blend of the legislative and judicial process for the removal of judges of the superior Courts in a civilised manner reconciling the concept of judicial accountability of judges and the values of judicial independence.

The proper forum

It is therefore respectfully submitted that the proper forum

 “…before which the allegations are to be proved, the mode of proof, the burden of proof, the standard of proof  etc., of any alleged misbehaviour or incapacity in addition to the matters relating to the investigation of the alleged misbehaviour or incapacity?” 

should be a forum that is created and established by law as mandated by Article 4 (c) of the Constitution, namely, a forum that can constitutionally exercise the judicial power of the People.

 

K.Kanag-Isvaran

President’s Counsel

Dated 13th December 2012

Print Friendly, PDF & Email

Latest comments

  • 0
    0

    This is the way a civilised country should conduct its affairs.

  • 0
    0

    Dear President’s Counsel Kanaganayagam Kanag–Isvaran

    APPOINTMENT OF PRESIDENTS COUNSEL is unconstitutional for the following reasons. THERE ARE 14000 odd lawyers as against a few hundred thousand other distinguished professionals. Over the last 10 years I have highlighted this anomaly in the press. BUT NOT A SINGLE DISSENTING OPINION WAS FORTHCOMING!!!

    President appoints them under CHAPTER VII 33.(cc)
    This is in conflict with CHAPTER III 12.(2)
    and
    CHAPTER VI 27.(6)
    All the above clauses are quoted below:
    CHAPTER III – FUNDAMENTAL RIGHTS
    Right to equality.
    12. (1) All persons are equal before the law and are entitled to the equal protection of the law.
    (2) No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds:
    CHAPTER VI – DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES
    Directive Principles of State Policy.
    27.
    (6) The State shall ensure equality of opportunity to citizens, so that no citizen shall suffer any disability on the ground of race, religion, language, caste, sex, political opinion or occupation.

    CHAPTER VII – THE EXECUTIVE – The President of the Republic
    Powers and functions of the President.
    33. In addition to the powers and functions expressly conferred on or assigned to him by the Constitution or by any written law whether enacted before or after the commencement of the Constitution, the President shall have the power –
    (a) to make the Statement of Government Policy in Parliament at the commencement of each session of Parliament ;
    (b) to preside at ceremonial sittings of Parliament ;
    (c) to receive and recognize, and to appoint and accredit, Ambassadors, High Commissioners, Plenipotentiaries and other diplomatic agents ;
    17[(cc) to appoint as President’s Counsel, attorneys-at-law who have reached eminence in the profession and have maintained high standards of conduct and professional rectitude. Every President’s Counsel appointed under this paragraph shall be entitled to all privileges as were hitherto enjoyed by a Queen’s Counsel ;]

    1978 CONSTITUTION did away with this unfair practise. But somehow lawyers manoeuvred to bring the 8th AMENDMENT to restore this practise thereby causing a disability and discrimination to other OCCUPATIONS.

    See reference to OCCUPATION in CHAPTER VI 27.(6)

  • 0
    0

    Mr. Kangisvaran ,thank you for your submission made before Supreme Court today..It is too advance to understand your submission to
    (Low-yers) this members of Parliament or any ordinary citizen in our country.You never explained what is the next thing to do.This interpretation of constitution fine.After Great Colvin R. de Silva very few lawyer in the country to explained this type of Legal sub mission before any Court.Thank you again.

    We want quick solution to prevent for this idiotic behavior committed by both parties.Rules,procedures, Ethics and conventions of Judiciary not comply by the CJ as well as some members of the PSC.Do you believe CJ’s is completely innocent in this matter?any one committed misconduct in any office in the world face disciplinary inquiry before panel of independent inquiry officer.Some times until that proceedings he or she interdict from your work.she(CJ) is still enjoying her benefits.this is wrong.According to this case SL constitution clearly stated procedure how to remove any Supreme Court judge from our Judiciary.This not our country first impeachment proceedings against any CJ’s in our country.Some NGO lawyers enjoying and dance according to order of their funding Organization. Here some members of PSC not properly behaved as a results CJ’s and her Counsel left the proceedings.Mr. Kangesswaran, tell me what will happened every day before most of the courts of our country some judges making various remarks for some litigants.Even MC,DC,HC, A.C,or S.C, as well.But ordinary litigant’s can not make any remarks for this judges for this idiotic remarks.Their lawyers not even making any remarks against this comments.Law is blind is in it .See either side.Who is correct.Who is wrong.

  • 0
    0

    This submission is going to go down in history as one of the best. It will also increase KangIswaran’s daily fee from Rs 50000 to about 30000.

  • 0
    0

    Well said Mr Kang-Iswaran, the Barbarians are at the gate of the Temple of Justice to rush in to destroy the temple of justice.

    • 0
      0

      Chandra Seneviratne

      “the Barbarians are at the gate of the Temple of Justice to rush in to destroy the temple of justice.”

      The barbarians have already taken over the inner sanctum of the state. The rulers who for the past 64 ruled the country are void of moral imperatives.

      You should have known what was in store for all tell·tale signs were already there for everyone to see, starting from immigration laws of 1947 & 48, Sinhala only law, 1971 & 1978 undemocratic republican constitutions, PTA,….. . followed by several riots against minorities, a long war which ended in colossal loss of life, two failed insurrection in which something like 150,000 people lost their lives……

      The rot didn’t set in yesterday it will not stop tomorrow.

  • 0
    0

    Mr Kanag-Isvaran is an eminent lawyer well versed in constitutional law and is well acquainted with the politics of Sri Lanka for many years. His late father was a senator for the Tamil Congress party of the late Mr G G Ponnambalam another giant in tamil politics and law of yesteryears.

  • 0
    0

    How many MPs have at least some knowledge of the Constitution and the Separation of Powers. If the Legislature and the Executive are to function without clashing with the Judiciary all those who intend becoming MPs should be required to pass an examination in Constitutional Affairs so that they will function orderly and avert many problems such as that are caused now by them because of ignorance.

  • 0
    0

    Almost all the political and civil areas are run by lawyers who are nothing but thieves.. These so call eminent lawyers cannot even wright a constitution for Sri Lanka and this tells all about their expertise.
    Law Professor is countries foreign minister and he does not understand the world affairs and colonialism and its cause and effect.. And still Sri Lankans call him a intellect .. If thats so what do we call idiot or imbecile ?

    Colombo has produces absolute morons thats are nothing but stooges for foreign interest and has no moral authority to countering countries ill health… They will sell their mother for 30 pieces.
    All these supporting CJ, some should ask why did she take Celinco case from a another judge considering she is involved with the company and got few million discount on transactions .. Also why she is hiding the documents that former chief justice put under lock and key ?

    So many underhand issues and those idiots still supporting her ?

  • 0
    0

    Mr. Kanag Iswaran. I pray that the Angels on the Bench will hear you right!

  • 0
    0

    Mr. Kanag-Isvaran, your analysis is spot on! Thank you!
    Just because CJ Neville Samarakoon’s legal team never contested the inapplicability of Standing Order 78A, this will not become law if it does not comply with the supreme law of our country, “the Constitution” (in particular Art. 4C), as the learned Counsel has explained in such detail.

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 7 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.