I am not going to comment anything about Appeal court decision but I would like to highlight relavent sections from our constitution and standing order So as intelligent human being we might be able to the reality.
First I like to mention who has the real judicial power of Sri Lanka.
According to the constitution it is the SUPREME LAW of Sri Lanka.(1st page of constitution).So if this commettee has been established according to the constitution it should become law and it should have lagal authority.
In the Republic of Sri Lanka sovereignity is in the people and is inalienable.Sovereignity includes the powers of government, fundamental rights and the franchise
-1978 Constitution chapter 1 item 3)
According to this People have the power.Now the problem is how people exercise this power.(I am going to quote the part which relates to Judicial power)
The judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established or recognized, by the Constitution or created and established by law except in regard to matters relating to the privilages, immunities and powers of Parliament and of its members wherein the judicial power of the People may be exercised directly by Parliament according to law.
- 1978 Constitution chapter 1 item4(c)
According to this Parliament have the judicial power which will be exercised through courts, tribunals and INSTITUTIONS.Therefore if an institution, in this case Parliament commettee is established for such a matter by the Parliament it should have the judicial power like court.
Now we come to the matters regarding CJ.
The Chief Justice, the President of the Court of Appeal and every other of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand.
Every such Judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity:
Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity.
Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such judge to appear and to be heard in person or by representative.
-1978 Constitution chapter 15 item 107(1),(2),(3).
According to this there can be resolution to remove CJ and removing power is on President's hand.
And Parliament shall give instructions regarding matters to such resolution by law or by Standing Orders which is the scenario in this case.Now if Parliament establish a commettee according to the Standing Order that commettee should become an institution with judicial power as mentioned above(1978 Constitution chapter 1 item 4(c).
Now we need to look in to the Standing Order to check whether this commettee has been established according to the that.
78A. [(1) Notwithstanding anything to the contrary in the Standing Orders, where notice of a resolution for the presentation of an address to the President for the removal of a Judge from office is given to the Speaker in accordance with Article 107 of the Constitution, the Speaker
shall entertain such resolution and place it on the Order Paper of Parliament but such resolution shall not be proceeded with until after the expiration of a period of one month from the date on which the Select Committee appointed under paragraph (2) of this Order has reported to Parliament.
According to this part the time period is ONE MONTH.
(There is a procedure to extend that period)
(2) Where a resolution referred to the paragraph (1) of this Order is placed on the Order Paper of Parliament, the Speaker shall appoint a Select Committee of Parliament consisting of not less than seven members to investigate and report to Parliament on the allegations of misbehaviour or incapacity set out in such resolution.
According to this the Speaker has the power to select the members to this commettee.It does not say to appoint members with legal authority ie ex-judges or judges.And the present commettee consists of 11 members including members from opposition.So it is a legal commettee.
(3) A Select Committee appointed under paragraph (2) of this Order shall transmit to the Judge whose alleged misbehaviour or incapacity is the subject of its investigation, a copy of the allegations of misbehaviour or incapacity made against such Judge and set out in the resolution in pursuance of which such Select Committee was appointed, and shall require
such Judge to make a written statement of defence within such period as may be specified by it.
I think all these have happened.
**[(4) The Select Committee appointed under paragraph (2) of this Order shall have power to send for persons, papers and records and not less than half the number of members of the Select Committee shall form the quorum]
According to this eventhough opposition members were absent that report is legal.
(5) The Judge whose alleged misbehaviour or incapacity is the subject of the investigation by a Select Committee appointed under paragraph (2) of this Order shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce
evidence. oral or documentary, in disproof of the allegations made against him
CJ appears in front of this commettee with her lawyers.
(6) At the conclusion of the investigation made by it, a Select Committee appointed under paragraph (2) of this Order shall within one month from the commencement of the sittings of such Select Committee, report its findings together with the minutes of evidence taken before
it to Parliament and may make a special report of any matters which it may think fit to bring to the notice of Parliament;
Provided however, if the Select Committee is unable to report its findings to Parliament within the time limit stipulated herein the Select Committee shall seek permission of Parliament for an extension of a further specified period of time giving reason therefor, and Parliament may grant such extension of time as it may consider necessary.
According to one of the commettee member they have agreed to give an extention after taking permission from the parliament as commettee does not have the power to extend time period by itself.But CJ and her lawyers walked away from the commettee.
And on the otherhand power of asking for an extention is on commettee's hand not on alleged person's hand.And also if a significant single allegation is proved extention may not be needed.
(7) 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.
(8. All proceedings connected with the investigation by the Select Committee appointed under paragraph (3) of this Order shall not be made public unless and until a finding of guilt on any of the charges against such Judge is reported to Parliament by such Select Committee.
(9) In this Standing Order “Judge” means the Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal appointed by the President of the Republic by Warrant under his hand.]
According to article number 8 proceeding should not be presented to public during the hearing.But CJ and her lawyers complained revealing of proceeding to public during the hearing.But we do not know who is responsible for this.Anyway I have to mention that government would not get any benefit from such an action.
On the otherhand eventhough this revealing might badly affect the reputation of CJ it can not be a reason to disregard or discredit the commettee report.
So in summary,
In my opinion this commettee has been established according to the Constitution and Standing Orders by Parliament which has the People's judicial power and the hearing is also acceptable according to the Standing Orders.