No power to remove CJ

The Government claims that there exists Supremacy of Parliament, its legislation is sovereign and the procedure prescribed in the Standing Order 78A is democratic and valid in law. It is also claimed that Supreme Court cannot make any determination against its legislative process, including suggesting any amendments to its Bill.

It is said that Parliament can follow its own procedure in removing the incumbent Chief Justice as it is held t hat Parliament is supreme. Parliament need not observe the Rule of Law, that is, for the normal courts to comply. Independence of Judiciary is subject to the dictates of Parliament as Parliament is Supreme.

However, the Standing Order 78A contains no provision for the President to remove the judge from office upon the Address is passed by Parliament.

Standing Order 78A (7) states that “Where a resolution for the presentation of an address to the President for the removal of a judge from office on the ground of proved misbehaviour or incapacity is passed by Parliament, the Speaker shall present such address to the President on behalf of Parliament”.

No further provision is made in the Standing Order 78A, enabling the President to remove the judge by Proclamation or otherwise. In fact and law, no mention is made in the Standing Order 78A that the President could remove the judge by Proclamation.

In the absence of such express provision, one has to infer that the President has implied power to remove a judge under Standing Order 78A. It can also be inferred that the President need not remove such a judge.

In fact Article 107 is taken from the Indian Constitution. In India, the procedure to remove a judge of the superior courts is regulated by Act and the Speaker is given wide powers to meet any situation and the procedure as to how a judge could be removed by the President is spelt out and the format for such removal of a judge is prescribed in writing. In Sri Lanka such procedure is fatally flawed. Here, we follow that might is right.