The Separation of Powers
Prof. Peiris maintains that the decision by the Supreme Court, which deemed the Parliamentary Select Committee powerless to decide in the case of the impeachment of a Chief Justice, was an attempt by the judiciary to usurp the powers of Parliament to legislate. Therefore he claims that this was an attempt at distorting the separation of powers, inherent in the constitution.
"There is an established principle of how a Chief Justice should be impeached. It is a basic principle of natural justice that there cannot be any bias or any perception of bias; therefore if one is deciding on a case and protecting one’s own colleague on the bench, then there will be an erosion of the integrity and the objectivity of the judiciary. It is for that reason that the judicial branch of government does not play a role, in the impeachment of judges of the superior courts.
In the judgment of the Supreme Court held that the select committee of Parliament, which had been appointed by the Speaker to probe the 14 allegations of the Chief Justice, was acting without lawful power or lawful authority and the basis for the ruling was article 107 (3) of the constitution; the article reads, “Parliament shall by law or by standing orders provide for all matters relating to” the Select committee.
In construing this sentence, the Supreme Court comes to the conclusion that Parliament needs to exercise this function only by “law and law alone”.
What is particularly remarkable is that the Court itself goes on to say that Parliament will not use words in vain or unnecessarily; meaning that there are no words in a statue, and least of all in a constitution, which are superfluous or redundant. The question then is that the Court is, for all intents and purposes, erasing the words “or by standing orders”. It is very clear that the constitution intends to confer on Parliament a choice; because there are two vehicles for accomplishing this task, either law or standing order and it is up to Parliament to decide which of these it should be. What is involved here is not interpretation at all.
PSC decision not binding
The Minister explains that the decision by the Parliamentary Select Committee was merely a recommendation and could not have come into effect if not for approval by both the Parliament and the President. Therefore the Supreme Court conclusion that any decision by the PSC was an inevitable outcome, is flawed reasoning. He mentions that neither Parliament nor the President was bound by the PSC findings.
Prof. Peiris : There is another basic error in the reasoning of the Supreme Court decision. The Court says, referring to the Select Committee, “in the case of a finding made by a Select Committee Parliament has to take cognizance of such a finding”. That is not so, Parliament does not haveto take cognizance of that finding. The Select Committee is appointed by the speaker and is expected to “investigate and report” (according to Standing Order 78 (A)). It is for Parliament to consider the findings of the Select Committee and it is for Parliament to accept or reject the findings.
The Court says “the final decision of the Select Committee eventually takes effect”. There is no decision at all by the Select Committee, it is only a report, a recommendation, and there is no finality at all. The Court goes on to say that “the finding of the Select Committee is not subject to confirmation or approval of some other authority”. That is also not correct at all; it is subject to confirmation or approval not by one authority but two authorities.
One authority is Parliament and the other is the President. The Select Committee reports to Parliament, then Parliament debates it, takes a vote, and then sends an address to the President at which time he may decide. There are two opportunities for the recommendation of the Select Committee to be subjected to conformation or approval.
The Court then says that “the address of Parliament to be presented to the President, is an inevitable consequence of the findings that the charges have been proved”. It is not an inevitable consequence at all; because the address will not be presented by Parliament if the recommendations of the Select Committee are rejected. Therefore these statements are incorrect.
Appointment of Shirani Bandaranayake
Shirani Bandaranayake was appointed to the Supreme Court during the presidency of Chandrika Kumaratunga, Prof. Peiris was a key advisor to President Kumaratunga and had worked closely with Shirani Bandaranayake as both her teacher and colleague at the University of Colombo. He now expresses regret about her recent actions.
Prof. Peiris: I do not wish to criticize an individual. I would say that I know Shirani Bandaranayake much better than the people who protested against her appointment or some of the people who are now defending her. I have taught her therefore I know about her positive qualities and her negative qualities—I am well aware of them.
I am not proud of some of the recent actions of my former student; that is all I wish to say on the matter.
In Sri Lanka there is no end to the quarrels.Where do they find the time to do any productive work. A house divided against itself shall not stand.
Guru Hora Tuesday, 15 January 2013 07:27 AM
Not wishing to criticize an individual is a good policy Prof. Otherwise you will have no time for anything else given the company you keep/work for.
gemunu Tuesday, 15 January 2013 01:39 AM
we know how you act at last election
G. Hapun Tuesday, 15 January 2013 07:42 AM
Prof. Pieris, You may have been a good teacher. That's that. You have chased away some of the best people in the legal profession from the country because of your biased actions. You are too old to even think logically anymore. Forget the law profession and keep your hands and mouth off of it.
shahiwal Tuesday, 15 January 2013 10:37 AM
You must at least respect your student who had a back born and a good tongue. Because of ur brainless act whole country to pay the penalty when Commonwealth expel Srilanka from their map and the investors run away from the country. Please grow some veggies rather be at the parliament. Shame on you
ganja Tuesday, 15 January 2013 10:49 AM
damn basted. shame on U.
DireStraits Tuesday, 15 January 2013 06:13 AM
Sir, We will take your learned word on this matter. However now that you have commented on the recent actions of your former student, please be unbiased and give us your equally honest opinion about the behavior of your 'learned' colleagues who investigated the CJ. Namely ruling party members of the PSC. How proud are you to be part of it? Please explain!
KD Tuesday, 15 January 2013 08:45 AM
Yes, I like my teachers to lead by example.
Ananda Seneviratne Tuesday, 15 January 2013 03:43 AM
We Sri Lankans are proud about educated politicians like you in our parliament. Keep up the good work Prof.
Comments will be edited (grammar, spelling and slang) and authorized at the discretion of Daily Mirror online. The website also has the right not to publish selected comments.