While reiterating there should be mutual respect and understanding between Parliament and the Judiciary, the Supreme Court recommended to the Parliamentary Select Committee (PSC) inquiring into the allegation against the Chief Justice, that it was prudent to defer the inquiry until the Court determines the point of law referred to it by the Court of [...]

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Supreme Court requests deferment until point of law is determined

By Wasantha Ramanayake
PSC inquiry into allegations against CJ
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While reiterating there should be mutual respect and understanding between Parliament and the Judiciary, the Supreme Court recommended to the Parliamentary Select Committee (PSC) inquiring into the allegation against the Chief Justice, that it was prudent to defer the inquiry until the Court determines the point of law referred to it by the Court of Appeal.

The Attorney General (second from left) with his team of lawyers

The Bench comprising Justices Nimal Gamini Amaratunga, K. Sripavan and Priyasath Dep made the recommendation to the PSC after hearing counsel in seven cases who argued strenuously seeking the Court stay the PSC from proceeding with the inquiry on Thursday.

The Supreme Court also directed the Court of Appeal to inform the respondent 11 members of the PSC, to file written submissions. The Supreme Court further ordered the Registrar of the Court to serve certified copies of the order of the Court to all respondent members of the PSC.

The court also noted that counsel had submitted irreparable damage would be caused to the Chief Justice if the proceedings before the PSC scheduled for last Friday was not stayed.

President’s Counsel K. Kanag Ishwaran appearing for petitioner Chandra Jayaratne told Court that Standing Orders of Parliament are not laws but are the procedure laid down for the functioning of Parliament. The PSC appointed under Standing Order 78A is not a court of law established by the Constitution under Article 4 of the Constitution.

Although the Standing Orders could provide for the passing of the resolution under Article 107 (2) of the Constitution, finding of the guilt of the Chief Justice or any other judge of the Supreme Court or the Court of Appeal could not be done by the PSC appointed under Standing Order 78(A).

He pointed out that severe harm and damage could be caused to the Chief Justice and also to the independence and integrity of the judiciary and moved the Court to issue an interim order restraining the PSC from inquiring into the allegations against Chief Justice Dr. Shirani Bandaranayake.

President’s Counsel Jeffrey Alagaratnam PC., appearing for Ven. Maduluwawe Sobhitha Thera said that Standing Orders could not set up a judicial body to inquire into the allegation of the judges. He also pointed out that the Judiciary is the only institution that has been assigned the hard task of keeping the every State organ “within the limits of law” making the rule of law meaningful.

The Supreme Court should take the correct step at this juncture said President’s Counsel Shibly Aziz appearing for petitioner Visaka Perera. “We should not take a wrong turn,” said the counsel while associating himself with the submissions made by the other counsel.

President’s Counsel Sanjeewa Jayawardane appearing for petitioner Dr. Jayampathi Wickremaratne told Court even if the President of the country faced an impeachment he would have the opportunity to come to the Supreme Court to defend him, a court of law recognized by the Constitution.

But in the case of judges of the Supreme Court and the Court of Appeal, a Standing Order has deprived them of their right to defend themselves in a competent court recognized by the Constitution. “Who guards the guardians,” the Counsel questioned. Our Constitution, the supreme law of the country presumed the innocence of the person until he/she was found guilty. The burden of proof is not with the suspect or the accused. But in sheer contrast, judges of the Supreme Court and the Court of Appeal have to appear before the PSC and are presumed guilty and have to prove themselves innocent, which is in breach of the Constitution.

The President’s Counsel noted that the petitioners went to the Court of Appeal to obtain an interim order against the PSC. However, the Court of Appeal immediately referred it to the Supreme Court. In such an instance, the counsel asked, could not the Supreme Court give an interim order?

He contended that a Standing Order had no provisions for burden of proof, standard of proof and mode of proof. The person/s summoned had to disprove the allegations.

President’s Counsel Uditha Egalahewa appearing for the Green Citizen Foundation and its chairman G.A.Chamindha Sri Palitha told Court that the Standing Orders are contrary to Article 5 and the right to equality granted under Article 12(1) of the Constitution.

Counsel Chrishmal Warnasuriya also making submissions said that there is a legislative lacuna as how to “judge a judge.” He argued that “judging a judge” could not clearly be a legislative process but should be a judicial act and the PSC could not step into the shoes of the judiciary to judge anybody other than Parliamentarians.

Attorney General Palitha Fernando PC., who came to assist the Court at short notice told Court he had only a very limited time go through the documents. He told Court that the issue before Court was to decide whether an interim order could be issued or not.

He argued that the PSC has an exclusive legislative jurisdiction and the Court of Appeal which has the original jurisdiction would not have the power to stay the proceedings of the PSC since it was the part of the legislative process.

“Therefore, the Supreme Court sitting in appeal could not stay the proceedings,” he contended. The Court of Appeal on Tuesday referred the seven cases challenging the appointment of the PSC to inquire into the charges against the Chief Justice as there is constitutional provision to be interpreted in relation to the removal of Supreme Court and Appeal Court judges.

Seven petitioners including Ven. Maduluwawe Sobhitha Thera, Chandra Jayaratne and Dr. Jayampathi Wickremartane challenged the appointment of the Parliamentary Select Committee appointed under Standing Order 78 A of Parliament to investigate and come to a finding of guilt of the Chief Justice, would be in breach of the Constitution.

They cited the 11 members of the PSC as respondents and sought to prohibit the PSC from investigating into the allegations against the Chief Justice and come to a finding of guilt.

The Court put off the cases for November 28. In the meantime the Court of Appeal on Wednesday granted counsel time to obtain further instructions in two cases challenging Ministers Rajitha Senaratna and Wimal Weerawansa participating in the PSC and fixed the cases for support for December 11.

Two lawyers Nimal Weerakkody and Chandrapala Kumarage filed these cases saying that the Chief Justice had heard two cases – one case filed by the wife of Minister Senaratne and other by Minister Weerawansa. Therefore, they alleged the two respondents would be biased against the Chief Justice if they are to sit in the Select Committee.

Three FR petitions against ousting of CJ given green light

By Teles Anandappa

The Supreme Court on Friday granted leave to proceed in three fundamental rights petitions filed against the constitution of the Parliamentary Select Committee (PSC) by a Standing Order made in Parliament to impeach Chief Justice Shirani Bandaranayake.

The petitioners – Ceylon Teachers Services Union General Secretary Mahinda Jayasinghe, Artist Athula Thenuwara and Attorney Janaka Adikari cited Chamal Rajapaksa. Speaker of Parliament, Anura Priyadarshana Yapa, Nimal Siripala de Silva, Susil Premajayantha, Rajitha Senaratne, Wimal Weerawansa, Dilan Perera, Neomal Perera, Lakshman Kiriella, John Amaratunga, Rajavarothiam Sampanthan, Vijitha Herath– all members of the PSC–and the Attorney General as respondents.

The submissions made in Court by the attorneys for the petitioners were that a Standing Order made in Parliament is not a legislative act and has no effect in law and therefore the PSC is ultra vires the Constitution and should be declared null and void.

They also stated that the committee should be constituted of members from outside Parliament if the process to impeach the Chief Justice should be followed. The petitioners said that the Standing Order is only an order made to conduct the functions of the members of Parliament.

The petitioners said that grave and irreparable loss, damage and prejudice would be caused to the petitioners and the people of Sri Lanka especially as the 1st to 12th respondents may continue to act in willful disregard of and in contravention of the Constitution, thus resulting in an unconstitutional interference with the judiciary and consequently in disregard of the rule of law and in violation of the fundamental rights of the petitioner and the people of Sri Lanka and requested to grant interim relief.

The petitioners requested the Standing Order be declared null and void. The Bench comprising Justices Gamini Amaratunga, K. Sripavan and Priyasath Dep granted leave to proceed as all persons are equal before the law and are entitled to the equal protection of the law under Article 12(1) of the Constitution.
Attorneys M.A. Sumanthiram, Viran Corea with Sarita de Fonseka and Suren Fernando with A. Beling appeared for the petitioners.




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