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Friday, 30 November 2012

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 OVERRULED

It is agreed. The Parliament of the Democratic Socialist Republic of Sri Lanka has reached a consensus that the judiciary has no right to interfere or intercede in matters that concern the Parliamentary Select Committee (PSC) probing the impeachment of the Chief Justice of the country.

This is a landmark decision not so much for its substance which should have been obvious, but for the fact that there is consensus on a matter of such vital import between generally opposing entities.

This decision could not have and should not have gone any other way. There would be constitutional gridlock if the judiciary decided to interfere in any way with the prevailing powers that are in place to impeach a Chief Justice or a sitting Supreme Court judge, for instance, of the country.

The constitutional law scholars -- most times partisan no doubt - - will argue until the cows come home that the judicial officers cannot come before Select Committees of the legislature, on matters such as investigations of good behaviour. But, the fact remains that when there is a lacunae in the constitution as to the exact procedure by which a judicial officer is to face impeachment hearings, there is no other recourse than a Parliamentary Select Committee, for which procedure there is ample precedent.

This is a matter that strikes at the core of maintaining the viability of the legislature. No Parliament in any democracy will countenance its writ being overridden by an unelected judiciary, when there is precedent in many parts of the world for judges facing impeachment hearings before Parliamentary Select Committees, or their equivalents.

The judiciary or any other person or institution cannot be heard to say that there shall be no impeachment hearings until the law is changed. This would be ludicrous, and no self-respecting elected legislature would tolerate such a mockery of its own standing. As the article bellow states succinctly, no individual under law has the luxury of changing the laws as they exist, at the time such an individual is to be tried for an offence.

What is not on offer to any ordinary citizen of this country, cannot be made available to the members of the judiciary, be it in the higher courts or any other.

The constitutional gridlock that's possible if the judiciary outlaws the Parliamentary Select Committee process, is not pleasant to contemplate.

There would be a virtual stasis in governance -- and administration of the Rule of Law would come to a standstill. This is why a previous Speaker of Parliament in his wisdom decided that the judiciary shall not pass a writ on Parliament compelling it to stall proceedings on impeachment.

In every sense, though it boils down to it in practice, it is not a 'supremacy' issue that is under consideration; rather, it is an issue of governance. It would be ridiculous to imagine that the judiciary would censure the workings of Parliament.

That is tantamount to a negation of democracy, and no sane person should have expected that the judiciary could sanction Parliament in this way and prevent a PSC, or that there would not be dire consequences as a result -- for the functionality of our democracy.

There is no doubt that the people's elected representatives would assert their authority over the un-appointed judiciary. All other arguments that take up any different position are specious, and are generally self-serving, as the comment on the top of the opposite page would indicate.

It is one thing for a person to argue that ideally there should be a better mechanism for impeachment hearings and that this should be the future reality, but to argue that the absence of that best choice should mean that Parliament should be overruled, is absolute pseudo-academic nonsense. Such advocacy has been deliberately partisan -- and history should judge those who made such moves to undermine the power of the people's representative body, with fitting disdain.
 

Playing tennis in Hulfstdorp

The legal strategy of the CJ’s team is to invoke Article 125 (7) and impress on the judges that the time has come for them to grab power to be a law unto themselves without any constraints from Parliament or any other source. The law as it stands right now has empowered the Parliament to try public officers like judges for misconduct. In fact Parliament has been accepted as the only means by which judges and presidents can be impeached for misconduct. Similar provisions exist in USA,

Full Story

IMPEACHMENT AND SOVEREIGNTY –HE CHECKED-HIMSELF-MATE

For sheer 24 carat comedic self-aggrandizing hubris – this bloke must be given a full 100 marks. Chrismal check-himself-mate Warnasuriya, writing to the Daily Mirror of November 28 states, ‘Several teams of lawyers have been attempting to uphold the Rule of Law and the Constitution over the last few weeks,

Full Story

 

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