22 June, 2021

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The SC Can Now Decide On The Correct Impeachment Procedure – AHRC

By Colombo Telegraph

“It is the Supreme Court that should have created the disciplinary process for judges. The executive or legislature should not have usurped the function of the judicial branch, which is an independent branch. The Standing Orders relating to impeachment of judges should only have been adopted on the advice and the approval of the Supreme Court.” says  the Asian Human Rights Commission

Chief Justice

Now that several petitions against the impeachment are before the Supreme Court, the court has the opportunity to correct the wrong procedure that has been followed earlier by the Parliamentary Select Committee, in drafting and adopting the Standing Orders as it stand now.

Issuing a statement AHRC said “had the court been earlier consulted, it would have given advice on the basis of law as to how to draft the Standing Orders in a way that will not violate the status and the dignity of judges of Sri Lanka. The court can now take notice of the injustice that has been caused to the judiciary in adopting the Standing Orders as they are now and use this occasion to undo the historic injustice.”

“The unjust Standing Orders have been used on three occasions, causing grave problems for three Chief Justices. It could have caused anxiety to all others. Any day, these procedures could be used by anyone. Now the Supreme Court has a historic opportunity to take a matter that strictly belongs to it to its own hand, and make it safe for all judges in the future. The lawyers of Sri Lanka has expressed their condemnation of the abuse of impeachment process and demanded that the law relating impeachment be in conformity with the best practices recognized throughout the world. The eight resolutions passed by the bar association is a clear indication of what the lawyers of Sri Lanka wants on this particular issue.Bar and Bench should now make  this occasion to let the nation know that they will defend legality against illegality at all cost.” the AHRC further said.

The Court of Appeal yesterday referred to the Supreme Court for its constitutional interpretation of Article 107(3) of the Constitution on the procedure to be adopted on the impeachment of a Judge.

The Bench comprising Justices S. Sriskandarajah (President of C/A), Anil Goonaratne and A.W.A. Salam decided to forward the reference in respect of four Writ petitions seeking to prohibit members of the Parliamentary Select Committee (PSC) from continuing the investigation into allegations against the Chief Justice Shirani Bandaranayake.

These petitions were filed on the grounds that the PSC has no judicial power.

The Article 107(3) of the Constitution in question reads as follows:

“Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such judge to appear and to be heard in person or by representative.”

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    Awaiting The Learned and Esteemed Bench’s decision.
    “There is a Higher Court than Courts of Justice, that is, The Court of Conscience. It supercedes all other Courts.”
    ‘Mahatma Gandhi’

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    I am not talking about law, just common sense. Is it not absurd for this writer says that ‘Now the Supreme Court has a historic opportunity to take a matter that strictly belongs to it to its own hand, and makes it safe for all judges in the future’ This is like asking SC to interpret existing laws to form new laws. Worse, when a resolution passed by bar association eight times lawyers deem to expect it to be accepted as the law of the country. We do not want lawyers to pass laws and give out judgements. Pray, tell us, how a lesser stratum of judiciary can judge its hierarchy or the chief among top slot of equals. This clearly is a legal coup in the offing and must be defeated.

    Now, 1978 Constitution was framed and passed by the elected representatives of sovereign people of this country. Its article 4(c) has brought about a functional separation of judicial power from Executive and Legislative powers.

    People are the sovereign in 1978 constitution. They have the inalienable right to elect the executive, and the legislature. Constitution also gave the legislature or MPs the right to make laws, standing orders, and amend laws and the constitution. The executive and the judiciary were not given the right to make laws or standing orders. Judiciary or Judges derive the power to judge from laws formulated by the Legislature. The executive derive the power to rule from the Legislature. In the end it is the people that are sovereign not lawyer sharks most of whom do not pay proper taxes.

    However everyone agrees that Judicial Independence must be respected and protected. But independence of the Judiciary doesn’t mean judges are to be feared and treated as Gods. They also do wrongs just like the executive and the MPs. So, who would judge the judges and punish them, if they become corrupt and/or interpret laws wrong? Surely, it has to be the people for it is they who gave judges power to judge in the first place. 1978 constitution doesn’t allow a set of judiciary to judge their hierarchy or chief among equals.

    Neither NGOs nor their pay masters nor the so-called IC nor the commonwealth are representatives of people of Sri Lanka. It is the legislature and MPs that represent people of Sri Lanka in the end.

    Anyway, it’s a good move that Ven. Sobitha Thera called those MP that signed the petition against CJ and listed her wrongs to include illegal earnings to reveal their own assets. However, Ven Thero should careful of the sinister motives of some wily elements masquerading as his fellow campaigners just the way they lured SF into politics but ditched him after using him in their political ploys.
    Leela

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    Article 4 (c) of our Constitution clearly says:” the judicial power of the people shall be exercised by Parliament through courts’ tribunals and institutions created and established or recognized by the Constitution or created and established by law except in regard to matters relating the privileges, immunities and powers of Parliament…. wherein the judicial power of the People may be exercised directly by Parliament according to law.” The charges against the CJ have nothing to do with matters relating to the privileges, immunities and powers of Parliament.Therefore, it is quite obvious that Parliament cannot exercise its judicial power directly to impeach the CJ.Let us hope and pray that the SC will give an interpretation of Paras(2) and (3) of Article 107 in consonance with the spirit and the letter of the Article 4.

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    Leela,

    utters, “I am not talking about law, just common sense..”

    You appear to be talking not common sense but utter bullshit! The Executive, Legislature and the Judiciary of the country is at crossroads, conflict and in the height of politico-judicial tug of war and a mentally deranged loser like you enters the scene and utters of common sense bullshit! The situation has nothing to do with common sense whore fucking bullshit with which the political prostitutes like Leela are constantly trifling with!

    One important question arises as to why a reputed organization like AHRC comes up with a recommendation, a view that

    “It is the Supreme Court that should have created the disciplinary process for judges. The executive or legislature should not have usurped the function of the judicial branch, which is an independent branch. The Standing Orders relating to impeachment of judges should only have been adopted on the advice and the approval of the Supreme Court.”

    On the face value it appears that the above violates the sovereignty of people-that is what this Leela laundry lady is essentially saying. But it is not! It is not because the Executive and the Legislature are no more representing the sovereignty of people! These two arms of governance now have detached themselves from both the Judiciary and the sovereignty of people and become a law unto them! They have assumed unto themselves the sovereignty rather usurped it from people! Under such unprecedented, unintended, uncalled for, usurped and intruded circumstances the proposal of AHRC seems very correct, reasonable and reflects and excellent time being way of addressing the issue until a proper mechanism to handle such situations is established under a “different democratic government and a new constitution”. There is no any shadow of doubt whatsoever that a “different democratic government and a new constitution” concept is the raison d’etre for adopting a course of actions for the time being like the above proposal.

    The core issue of this problem is very well explained by the comment posted by one Saman Wijesiri in the discussion. His illuminating comment is a resounding instance of exposing the utterly banal, carnal, ulterior, crooked, deformed, undemocratizing and cooked up concocts acting as hosannas and shameless misrepresentations of law to a deplorable despot as against simply the brilliance of truth, democracy, justice, reasonable and rational thinking by a moderate yet brilliant citizen!

    The regime of the despot has proposed to legalize prostitution and I recommend the Leela [Edited out] be sent to the first one of its kind to be set up in the country so that she would find her rightful place in the Rajapakistan utopia!

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