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Concluding the hearing of the seven references on constitutional questions referred to the Supreme Court by the Court of Appeal, regarding impeachment of Superior Court Judges, the Supreme Court noted that answers to the questions will be sent to the Court of Appeal in due course.

The Bench comprising Justices Nimal Gamini Amaratunga, K. Sripavan and Priyasath Dep PC., also directed the parties to file their written submissions on Tuesday (18).

The Court of Appeal referred seven references to the Supreme Court to interpret the constitutionality of Standing Order 78 (A) of Parliament.

The seven cases were filed in the Court of Appeal challenging the appointment of the Parliamentary Select Committee (PSC) to investigate the allegations against the Chief Justice. The petitioners stated that the PSC does not have judicial powers to inquire into the allegations.

Commencing the arguments that the country was at a critical juncture in the history of our nation and quoting from history President’s Counsel K.Kanag-Ishwaran said “Barbarians are at the gate of the Temple of Justice. You let them in, they will destroy all that is sacred to us and install at the Altar of Justice, false prophets.” He submitted that according to the preamble to the Constitution, it is the Supreme Law of the country, nothing, no organ of the state is above it.

Three organs – the Executive, Legislature and Judiciary – derive power from it and have to act within the limits of their authority. The Supreme Court is the ultimate interpreter of the Constitution and it could determine what power is given to each branch of the government and whether any action of any of that branch transgresses such limits.

The Supreme Court upholds the constitutional values and enforces the constitutional limitations, which is the essence of the rule of law,” he argued. He continued that because Article 4(C) of the Constitution guarantees the independence of the Judiciary it is necessary for the mechanism for the investigation and proof of judicial functions be kept outside Parliament. Parliament has no role in finding the incapacity of any judge. Such incapacity of the judges should be proved by a judicial process before it comes to Parliament. In the case of the impeachment of the President, the finding of the ‘incapacity’ of the President would be done by the Supreme Court, outside Parliament. Similarly, in case of the impeachment of the Judges, it is the legislature which initiates the process and the finding of guilt should be done outside Parliament by an independent judicial body.

A parliamentary select committee could then take a decision as the legislature based on the findings of the judicial body for the removal and the Executive has no role to play but to act on the decision of the parliament.

“The President has absolutely no discretion to take a decision,” he emphasized. “That is why I say we are at a critical juncture.” Standing Order 78(A) is bad in law and it could not create a judicial body. The removal of a judge using Standing Orders is not practised anywhere in the world. “This is the conundrum faced by the Court of Appeal which referred the cases to the Supreme Court,” the President’s Counsel explained. A President who is being impeached has the safeguard in that he could defend himself in the Supreme Court. The Judges should also have such a safeguard. Such a mechanism was proposed in the 2000 draft Constitution. “Mr. Ranil Wickremesinghe tore and burnt a copy of it,”he said.

Senior Counsel S.L. Gunasekera appearing for Dr. Jayampathi Wickremaratne argued that Standing Orders never come before the Supreme Court for review whether such Standing Orders are in conformity with the Constitution. These internal rules of debate would never become laws of the land and therefore do not affect the ordinary people. They are not sent to the Supreme Court in the form of a Bill for the scrutiny of the Supreme Court whether they are in violation the provisions of the Constitution, the senior counsel submitted.

If Standing Order 78 (A) has power to judge judges, the counsel continued, it should be by a law passed by Parliament. It should have been reviewed by the Supreme Court as a Bill and determined whether it should be passed by Parliament with a simple or a two-thirds majority or a two-thirds majority plus the approval of the people at a referendum.”

If Standing Order 78 A is a law thus passed to judge the judges then the court could not intervene, he said adding that the court could not pass judgment regarding the impeachment or impeachment process. Therefore, Parliament could take on the powers of the judiciary. Because of that jurisdiction Parliament passed the Standing Orders. Standing Orders never come before the Supreme Court for review whether such Standing Orders are in conformity with the Constitution.

President’s Counsel Geoffrey Alagaratnam appearing for Ven. Maduluwawe Sobitha Thera submitted that Parliament is only supreme in its own sphere of law making and it could not take over the judicial function assigned to the Judiciary.

President’s Counsel Uditha Egalahewa appearing for a petitioner and quoting Dr. Colvin R. de Silva in his book on ‘Monkeying with the Judiciary’ said that ‘bad judges’ should be removed without harming the institution. He submitted that Standing Order 78(A) gives the PSC jurisdiction to investigate and report. It only deals with the investigation of the allegations against the judges. He argued that there is a lacuna in the law.

“If one draws a parallel with Article 38 under which the President is impeached, the guilt is found only after due inquiry in the Supreme Court. He submitted that the Standing Orders are ultra vires the Constitution. He said that under Article 13(5) the burden of proof is with the accusers whereas Standing Order 78(3) wanted the judges to disprove the charges. He also pointed out that the Standing Order does not prescribe the procedure. “Any authority which does not provide guidelines is ultra vires Article 12(1) on the ground of arbitrariness and due equal protection of the law not being granted.

“Where there is power there will be abuse of such powers,” he said adding that there is no supremacy of any organ of the state.

Counsel Chrishmal Warnasuriya also making submissions said that there is 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.
A junior counsel for President’s Counsel Sanjeewa Jayawardane argued the Standing Orders have reversed the burden of proof. This should not have been done, the counsel contended. Attorney General (AG) Palitha Fernando PC., commencing his submissions told court that he was presenting the law as it is, without being sentimental or emotional.

The AG in his lengthy submissions told court that there was no proper reference in law before the Supreme Court. In terms of Article 125 of the Constitution the question of law should have arisen during the course of the proceedings in the Court of Appeal. He pointed out that no such dispute arose between the parties. “This is a serious question of law,” he argued. If this rule is relaxed that would open the flood gates, which is not the intention of the legislature, he noted. He also submitted that presumption of guilt granted under Article 13(5) is only limited to criminal offences.

Counsel for the intervenient petitioners mainly focused on their argument supporting the impeachment that there was no proper reference before the Supreme Court so that it could not answer the questions referred to by the Court of Appeal, since the original court – the Court of Appeal where the petitioners challenged the Parliamentary Select Committee – does not have jurisdiction to hear the cases as the matter is before Parliament. The Supreme Court should not, therefore, make a pronouncement, argued President’s Counsel Chandana Liyanapatabendi for the intervenient-petitioner Ven. Rajawala Nandarathana Thera. Appearing for retired High Court Judge P.K. Wimalasena Wijeratne, Prof. H.M. Zafrullah also put forward the argument that there is no proper reference before the Supreme Court to answer as the Court of Appeal on its own formulated the questions and referred them to the Supreme Court for its interpretation. The impeachment of a judge is not judicial but essentially a legislative process, he further argued. The impeachment process could not be dissected into three spheres – the start of the process by signing the motion by the parliamentarians, the finding of guilt by the judiciary and the removal by the executive – but the same legislative process. At this stage Justice Amaratunga noted there was a large public element involved in finding of guilt of a judge. The court noted it was merely not a matter of losing one’s job but also loss of public faith which directly affect the independence of the judiciary, one of the important elements of the Constitution. President’s Counsel Razik Zarook appearing for an intervenient petitioner also took up the position that the Court of Appeal could have handled the case by itself. He contended that the questions posed did not warrant interpretations. Counsel B.Manawadu representing Public Service Trade Union

Federation president W.H. Piyadasa told court that the report of the PSC had been handed over to Parliament and after the Parliament debates the findings, the President could remove the Chief Justice after the address by Parliament. Therefore, he argued that the references are belated. Justice Amaratunga reminded the counsel that there are other judges. President’s Counsel Nigel Hatch too contended there were no proper references before the Supreme Court to answer since the Court of Appeal without consulting the Attorney General referred the questions to the Supreme Court. President’s Counsel D.P. Mendis appearing for intervenient petitioner Ven. Dodangoda Piyasiri Thera said that there was no jurisdiction for the Court of Appeal to entertain the cases. In his reply President’s Counsel K. Kanag-Ishwaran argued that investigation by the PSC involves a judicial process.

Seven petitioners including Ven. Maduluwawe Sobitha Thera, Chandra Jayaratne and Dr. Jayampathi Wickremaratne challenged the appointment of the Parliamentary Select Committee appointed under Standing Order 78 A of Parliament to investigate and determine the guilt of the Chief Justice, such finding being in breach of the Constitution.

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

CJ thanks Bar for support, commitment to fair play 

Chief Justice Shirani Bandaranayake yesterday expressed her gratitude to the members of the Bar Association of Sri Lanka for their commitment to justice and fair play.

The Chief Justice’s reaction came in a statement issued on behalf of her by her legal team after the General Membership of the Bar Association unanimously passed a resolution calling President Mahinda Rajapaksa to reconsider the impeachment of her.

“The unanimous resolution passed by the General Membership of the Bar Association vindicates the position of the Chief Justice as to the attempt to impeach her by a procedure devoid of fairness and without adhering to the basic principles of natural justice,” the statement said.

‘The Chief Justice is humbled by the fact that so many lawyers have gathered together to express their commitment to safeguard the independence of the judiciary of Sri Lanka. She is also moved by the deep commitment of the members of the legal profession- including the junior members of the profession. She is encouraged by their commitment to justice and fair play,” the statement added.

The statement said the Chief Justice is grateful that the members of the Bar have unanimously agreed that the proceedings against her have been conducted devoid of the principles of natural justice and without affording her a fair hearing, and that they have called upon a cessation of these proceedings unless these principles are adhered to.

“Dr. Shirani Bandaranayake remains committed towards her efforts in ensuring that judges in Sri Lanka are able to perform their functions without interference and with sufficient safeguards that will protect their independence,” the statement added.

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