Choksy raises a conundrum
Review Committee on CJDecember 15, 2012, 7:48 pm
"The Office of the Chief Justice is the arch-stone of Sri Lanka’s Judiciary. Our Constitution has its foundations in the Rule of Law. It devotes an entire chapter relating to the Independence of the Judiciary. Accordingly, the on going issue of the proposed impeachment of the Chief Justice assumes a place of considerable importance", Mr. N. K. Choksy, PC, said on Friday.
"A Select Committee of Parliament has already functioned and submitted its Report to the Speaker. It is now open to Parliament to debate the Report and decide whether or not to proceed with the impeachment of the Chief Justice. If Parliament resolves by a majority decision to impeach her it is required, to present an Address to the President for her removal.
"Article 107 of the Constitution specifies that a judge of the Supreme Court cannot be removed from office "except by an Order of the President made after an address of Parliament supported by a majority of the Members of Parliament is presented to the President for her removal ".
"An important Constitutional question arises here, namely, what would be the result if Parliament presents to the President an Address for the removal of the Chief Justice, but the President on advise received by him or otherwise, decides that such an order of removal should not be made.
"Here then we are faced with an important Constitutional issue. Whose view prevails? That of Parliament or the President? A conflict could take place between the Legislature and the Executive.
"My considered view is that the Opinion of Parliament prevails and takes precedence. And why? We must not lose sight of the fact that both Parliament and the President are elected representatives of the people. Both are representative of the sovergnity of the People. How is the conflict resolved ?
"Upon a consideration of Article 107, my opinion is that the decision of Parliament will be given effect to. I state so because Parliament represents the collective will of the people. Furthermore, Article 107(2) stipulates that the Address of Parliament to the President must be supported by a majority of the total number of Members of Parliament. This would be 113 Members, who voice the view of the people whose representatives they are."
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