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SC fixes BASL petition against CJ’s impeachment for January 21
The Supreme Court on Monday decided to fully hear the rights violations petition against the impeachment procedure of Chief Justice Dr. Shirani Bandaranayake, filed by the Bar Association of Sri Lanka (BASL) and fixed the dates for hearing the case for January 21, 2013.
The court decision was given after hearing both President’s Counsel Ikram Mohamed appearing for the Bar Association and the Additional Solicitor General Bimba Thilakaratne Jayasinghe PC., for the Attorney
General, since there was a likelihood of a probable violation of the petitioner’s right to equal protection of law guaranteed under Article 12 (1) of the Constitution which also included the right to an independent Judiciary.
The Bench comprised Justice Nimal Gamini Amaratunga, Justice Priyasath Dep PC., and Eva Wanasundera PC.
President’s Counsel Ikram Mohamed reserved his right to seek an interim order preventing the 11 members of the Parliamentary Select Committee (PSC) inquiring into the allegations against the Chief Justice until this case is decided.
In this case, four office bearers of the Bar Association, namely President Wijeyadasa Rajapakshe PC., Secretary Sanjaya Gamage, Treasurer Rasika Dissanayake and Assistant Secretary Charith Galhena cited Speaker Chamal Rajapaksa and eleven members of the Parliamentary Select Committee.
Among a host of other declarations, the petitioners sought a court order that Standing Order 78A is ultra vires the Constitution and is null and void;
Therefore it has no force or effect in law and all proceedings held and findings made by the PSC are invalid.
Supporting the petition President’s Counsel Ikram Mohamed indicated that the Bar Association by its constitution would be required to safeguard the independence of the Judiciary.
The decision of the PSC to proceed to inquire into the charges against the Chief Justice without awaiting the pending interpretation of Article 107 of the Constitution and the constitutionality of the Standing Order 78A challenged in several cases referred to the Supreme Court, Mr. Mohamed contended, was also an infringement of the petitioner’s right to equal protection of the law guaranteed by Article 12(1) and the Fundamental Rights guaranteed by Article 17 of the Constitution, the counsel pointed out.
The appointment of the PSC set up to inquire into the allegations against the Chief Justice under the Parliamentary Standing Orders 78 (A) would also violate Article 13(5) and 107 of the Constitution.
Counsel argued that Article 107 of the Constitution, would require Parliament to have the allegations against the Chief Justice inquired by a constitutionally recognized court or by a body judicial in character. As the PSC created by Standing Order 78 (A) was not a constitutionally recognized court or body that does not have judicial characteristics, the Standing order also is in violation of Article 107 of the Constitution.
He told court that according to the Constitution the people are sovereign and their judicial powers should be exercised by the Parliament through the constitutionally recognized courts.
However, the counsel pointed out that the Standing Order 78 (A) is contrary to Article 13 (5) Constitution since it would presume the Judge is guilty and pass the burden on the accused judge to prove the innocence.
Under Article 13(5) of the Constitution a person is presumed to be innocent until the person is found guilty by the competent court and also the burden of proof is on the accusers, he submitted.
The appointment of the PSC by the Speaker of the Parliament, argued the counsel, was an administrative action by the Speaker and it should be subjected the review of the Supreme Court. Even the Judiciary could perform the administrative actions and cited the Judicial Service Commission was an example.
The maintenance of the Independence of the Judiciary is a must for upholding the Rule of Law, argued the counsel, “thus ensuring that the impeachment mechanisms are such that they leave no room for suspicion
or fear that a Judge may be victimized for delivering judgments against the Executive or the Legislature, is essential for the maintenance of the independence of the Judiciary which in turn required that the judicial or quasi-judicial aspects of the impeachment process are carried out in accordance with Article 4(c) and 3 of the Constitution.”
“A judiciary under threat by the Legislature, that may remove such Judges by an unconstitutional and biased process may be deterred from entering judgments against an Executive or Legislature,” the President’s Counsel pointed out.
He noted, “Thus the existence of such an unconstitutional and biased process will result in the denial to the Petitioners of the rights guaranteed by Article 12(1) of the Constitution, and is in itself a violation of the Petitioners’ rights under Article 12(1), which includes the right to an Independent Judiciary.”
Additional Solicitor General (ASG) Bimba Thilakaratne Jayasinghe PC., argued that that the Bar Association could not maintain the case as the Executive Committee of the Bar Association has not approved the decision to file the rights plea.
Raising a preliminary objection, the ASG argued that the petitioners could not maintain the application since the first petitioner belonged to the party which has two of its members in the PSC.
The petitioners sought a host of declarations including that Standing Order 78 A containing the impeachment process would seek to permit judicial powers to be taken over by Parliament, contravening
Articles 4(c) and 3 of the Constitution, and the petitioners’ right to equal protection of the law guaranteed by Article 12(1) and the fundamental right guaranteed by Article 17 of the Constitution.
The petitioners also sought an interim order restraining the PSC from inquiring into the charges against the Chief Justice until the hearing and determination of this Application.
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