By Jude Fernando –
The impeachment proceedings against the Chief Justice has now arrived at critical point, and regardless of its final outcome the independence and public confidence of the judiciary should be maintained. In this regard the citizens of Sri Lanka hope that the Supreme Court in hearing the petitions submitted by the CJ and others will honor the two principals of natural justice upon which the integrity and public confidence of the judiciary rest. The first principle stems from maxim “Audi alteram partem” which means no one should be condemned unheard. This maxim contains two elements: (a) The opportunity to make representation must be afforded ; and (b) such opportunity must be reasonable. Opportunity depends to the facts and circumstances of each case.
The second, principle stems from the maxim that one ‘Nemo iudex in re sua‘ ‘meaning that Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased (personal, pecuniary, personal or official bias.) In any civilized democracy this means even if the legislature does not specifically provide for principles of natural justice, unless principles of natural justice are specifically excluded in the legislative laws, the Supreme Court must read natural justice into a provision of law.
In the regard Justice Ms. Shiranee Thilakawardane should excuse herself from hearing any petition relating to impeachment of the Chief Justice since she gave evidence at the Parliamentary Select Committee, and the fact that, according to reports, two judges of the panel, S. I. Imam and Chandra Ekanayake refused to hear cases with Ms. Thilakawardena. Regardless of the Ms Thilakawardana’s stand on the impeachment and outcomes of these petitions Ms. Thilakawanrada participation in the any hearing relating to PSC will only serve to undermine the integrity of the Judiciary.