President can remove a SC Judge when impeachment motion is passed in Parliament :

Procedure followed in keeping with the Constitution and Standing Orders :

Judiciary cannot change the Constitution - Former Chief Justice Sarath N Silva

Public Service Commission has the power to take disciplinary action :

An impeachment motion is a disciplinary action :

Q: Controversy surrounds the recent determination of the Supreme Court. You have a wide knowledge on the judiciary. What is the due process to bring an impeachment motion against the Chief Justice or a Supreme Court Judge?

A: What you are saying is correct. There had been impeachment motions even in the past and even against me. But those did not receive public interest. Those were solved at that level. The most important thing is there should only be a Parliamentary procedure in this regard. The extraordinary fact we now have is that there is a judicial procedure parallel to the Parliamentary procedure. Then the public have to consider both these. A few days ago, the matter was before the Judiciary and before that it was before Parliament. This has led to some confusion.

That is why even I also decided to participate in this programme. This confusion is not good for the country, the Judiciary and Parliament. Therefore, the public must be educated on the reality.

An impeachment motion is a disciplinary action. You also serve an institution. I also served for 41 years. All who work, from the rank of the Chief Justice to a lowest grade employee, have to agree to service contracts. There is an employer and an employee in a service contract. The government is the employer when it comes to the public service. The Public Service Commission has the power in the public service. It is this committee which appoints and takes disciplinary action.

There are several levels in the judiciary. The lower level is comprised of Magistrates, Primary judges and District Court judges.

The Judicial Service Commission (JSC) has the power to appoint them.

The next level is comprised of High Court judges. The President and the JSC have the power with regard to them. The President appoints them according to the recommendations of the JSC. But even the President has a choice. Even the disciplinary action is taken according to the JSC recommendations. The President has the power to neglect them as well. There had been instances of such things happening in the history.

The disciplinary power lies with Parliament, but not entirely. The President can remove a Superior Court Judge when an impeachment motion is passed in Parliament with a simple majority. The President is the officer in charge of the appointment and well as removal. Parliament puts the impeachment process in between. This procedure is followed in many countries of the world, including the UK. In UK there are two parliamentary boards. The judges in Superior courts are removed once the resolutions against them are passed in those two boards. Sri Lanka too followed this method in the past. According to the 1948 Constitution, the Governor or the President removed a Superior Court Judge once a resolution was passed.

One more fact was added to this procedure under the 1978 Constitution. That is Article 107 of the Constitution. There are regulations as to how to conduct a parliamentary investigation on the charges. According to Article 107 (3) of the 1978 Constitution, Parliament should compile a procedure to investigate on the impeachment. It can be done under a law or standing orders. Parliament has a choice either to compile a law or Standing Orders with regard to impeachment procedure.

When the impeachment motion against Neville Samarakoon was presented, it was understood that a law or Standing Orders with regard to impeachment procedure were lacking.

Then Parliament compiled Standing Orders in this regard in April 1984. This Standing Order has been operational for 30 years now since 1978. The Impeachment motions against Neville Samarakoon and three more Superior Court Judges were investigated under these Standing Orders. This is the present context. The method to present an impeachment motion is set out in the Standing Orders. According to the Constitution, the impeachment motion should be signed at least by one third of the Members in Parliament. The charges should also be mentioned in it. This is a procedure basically to educate Parliament rather than making a complaint. They educate Parliament about the charges. Thereafter, the Speaker should direct the investigation to a Parliamentary Select Committee (PSC) according to the Standing Orders.

Q: So the Speaker appoints the PSC under the Standing Orders?

A: Until the issue reaches the Speaker, it should be dealt under the Constitution. From that point onwards, the Standing Orders apply with the appointment of the PSC. The Speaker appoints the PSC, as he would appoint any other PSC. The representation in it is based on the strength of the parties in Parliament. That means a greater share will be for the government. The membership of the PSC is decided on the composition of Parliament. Accordingly, 11 members have been appointed to it. Seven among them are from the government, two from the main opposition party and one each from other opposition parties. So until this stage, the procedure which was followed on the above mentioned Standing Orders. So, we can clearly see that this procedure followed was in keeping with the Constitution and the Standing Orders.

Q: Does the Chief Justice have the right to clarify facts before the PSC to counter the charges made against her ?

A: According to the Standing orders, the Chief Justice can present facts during this investigation. Even the representation of lawyers on her behalf is allowed. If required she can be absent while having her lawyers represent her. These things are very clearly mentioned in Standing Orders.

Q: When considering this particular matter, has the impeachment investigation proceeded in a proper manner?

A: Yes. It has. The presentation of the motion, the signing by one third, and mentioning of the charges were duly done. As I see, facts with regard to 14 charges had clearly been mentioned.

Q: How do you see this situation?

A: There is an another angle in this. As soon as the Parliamentary proceedings get started with regard to this mater, some sections of lawyers, like Chandra Jayarathna filed a case before the Court of Appeal in parallel to the proceedings. In return, the Court of Appeal gave a verdict requesting an interpretation of Article 107/3 of the Constitution by the Supreme Court.

Subsequently, the Supreme Court informed Parliament that the proceedings would be stopped until the hearings of the case were finished. This was the place where the dispute was created. The statement of the CJ's lawyer before the PSC was to stop the inquiry as per with the Supreme Court order. Then, the PSC had turned down it highlighting that investigations were carried out under the Standing Orders and they were bound by Parliament to finish inquiries and submit the report within one month.

Then, the problem was mooted. But CJ's lawyers did not quit in that moment.

Q: It means if the proceedings were to be stopped in that manner can the Supreme Court do this?

A: As far as I can see, there is no any room for any interference by the Supreme Court in keeping with the constitution. The

Interference of the Supreme Court was witnessed when the case was being heard before the Courts of Appeal. No provisions have been given to the Court of Appeal in this regard. Under such circumstances, the Court of Appeal has to function in line with Article 140 of the Constitution. It has been vested with the power to issue a Writ of Certiorari in such situations.

These are the complicated terms which are available in Latin language in the Constitution. In Britain, these old-fashioned Writ applications were issued by the Board of the Queen or King according to English law. These were not available in the Constitution until now. These were found under normal Law in the 1948 and 1972 Constitutions. Subsequently, this was added to the 1978 Constitution under the Courts Act.

This power was given to the Court of Appeal with two restrictions in in Article 140 in issuing writ applications that should be compatible with the constitution and the law. The term, “law” has been clearly mentioned there. Now it has been interpreted in Article 170 of the Constitution.

Law means a law imposed by either Parliament or Constitutional Board. But it should have the power to create the constitution. Only Parliament is relevant in this regard though no law has been imposed on this yet since 1978.

The same problem arose when I was in the Attorney General's Department in the 1980s. We didn't oppose it and continued the old system. The old system was the verdict given by the court of Great Britain.That's what we called “ Common Law”. We also functioned in the same manner which was convenient. We also achieved the same development as experienced by England. We confronted no problem in doing that. According to English law, no where have we found a court that had given verdicts against Parliament. It was due to the fact that the English law was developed preventing clashes between various institutions. That law was developed for centuries in the same manner.

No court in England had issued a Writ of Certiorari to a Speaker or Parliament. Do the courts have the power to issue an order against the Speaker or Parliament? Because this has been clearly mentioned in Article 140 of the Constitution that this should be implemented according to the law.

Q:Former Speaker Anura Bandaranaike made a clear statement in this regard during your tenure?

A: It was about fundamental Human Rights. The breaching of HR is mentioned in Article 126 only with reference to Executive or administrative affairs. No Parliamentary proceedings were mentioned in this regard. No body can file a petition against Parliament claiming that their basic human rights are being violated.

If we take action against an employee of Parliament it becomes an administrative matter. There, we find a Fundamental Rights case.

That's what happened during Anura Bandaranaike's period. Then, a group of lawyers filed a case that before appointing a PSC, the Speaker should initiate an inquiry over the matter. The Speaker turning down the order decided that courts had no jurisdiction to give orders to the Speaker.

Then, only I knew the legality of this matter. I was not aware about the facts that they were ready to file a case.

I told them that this would create a dispute. I understood that I would be crushed from both sides and requested them to withdraw the case.

Q: According to your description Parliament can appoint a PSC and probe the charges. On the contrary, the Court of Appeal recently claimed that the PSC was illegal. What is this contradiction ?

A: That is a problem. The Court of Appeal has no jurisdiction to interpretate the constitution. The court of Appeal forwarded this to the Supreme Court expecting an interpretation of the constitution in this regard. The normal procedure was for the Supreme Court to take two months to send the interpretation to the Court of Appeal.

Q: Are you saying this was done with preparation?

A: I cannot mention such while being in the courts. But it seems that there is an order. I am reluctant to use the term” preparation”.

This is being done on an order. The verdict was given before the holiday season. The Court of Appeal was on leave even by yesterday. But the court function on urgent applications even during holidays. But not for the applications of this calibre. I have the verdict with me. I looked at it and find that the investigation was carried out on December 14. It had time up to February 14, 2013. But the decision has been taken on January 1 means the judges had prepared the verdict even during the Christmas vacation. I consider this an important matter. My expectation is to solve the problems of the public with enthusiasm.

I am not making an accusation. I tried my best to expedite cases as much as possible. I was not in a hurry to give verdicts during holidays. I considered holidays as holidays. Only if there was an old case, I would attend to it.

The salient feature of this verdict was this had to be done as an interpretation of the constitution. Whenever any problematic areas

were raised in other courts, those should be forwarded to the Supreme Court as per with the provisions of Article 125. The verdict of

the Supreme court in this regard was critical. There were 28 pages out of which 23 pages were restricted to fundamental matters. If I were in the Supreme Court. I would have stated with honour that cases of former CJ Neville Samarakon and my previous verdicts had no relevancy to his case. Article 107 has no implication in this respect. The verdict which was written in English has mentioned that this was the interpretation of the constitution. But, It is clear, under Article 107/3 has specific obligation how can parliament remove judges from the posts.

In fact, they have not done any interpretation. I, with great respect, would like to tell the supreme Court if any interpretations have been made what did those words mean? What connection did it have? Here there is a serious recommendation that Parliament has a responsibility? In addition, Article 107 of the the Constitution clearly indicates the procedure of the impeachment motion through either Parliamentary powers or Standing Orders. To understand this article, no body wants to be an expert. Here, the Supreme Court has not mentioned any interpretation in this regard.

Q: When the Constitution has clearly mentioned about the procedure how did this interpretation come about?

A: I have also spent for 41 years in this field. I cannot explain it? If I answer your question in a Cricket manner. I can say that I would be bowled. The Supreme Court has used in this article as “by” under lining the word “law” that this should only be done through law. Now, this is a very serious matter.

Only Parliament holds this right. Parliament has the discrepancy to either create a law or form Standing Orders at this juncture as per with Article 107/3. In 1984, Parliament worked with this discrepancy. For almost 30 years, it was mentioned that only Standing Orders would be relevant to this. These Standing Orders were effective from there onwards. Now even Parliament cannot bring a law in this regard though it has the legal provision through the Constitution.

Q: If we practice as per with Standing Orders don't we have any other methods.

A: There is no other ways. The Supreme Court has mentioned that they don't take into consideration the Standing Orders. To the

Supreme Court, the Standing Orders were not valued. Now the verdict of the Supreme Court has been made public and we have a right to investigate the verdict. But that should be done only with good mind.

We should do it just to further confirm the supremacy of the law. If the supremacy of the law is violated we should show it. The law should be interpreted in a correct manner. That's what I am doing.