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No bar to SC or CA to review impeachment process: Appeal Court President
View(s):By Wasantha Ramanayake
Holding there are no constitutional bars to limit jurisdiction to review the impeachment process by Judges of the Superior Court (SC) or the Court of Appeal (CA), the Court of Appeal on Monday quashed the findings of the Parliamentary Select Committee (PSC) findings against Chief Justice Dr. Shirani Bandaranayake.
“If the legislature had intended that the jurisdiction of the court to impeach judges should be ousted under Article 107 of the Constitution, it ought to have specifically provided for such an eventuality,” observed Appeal Court President Justice Sriskandarajah, delivering the landmark judgment in the case filed by the Chief Justice against the findings of the PSC that found her guilty on three charges.
Delivering the judgment Justice Skandarajah with Justice Anil Gooneratne and Justice A.W.A. Salam agreeing, rejected the argument of Attorney General Palitha Fernando PC., that Article 107 of the Constitution has not provided for a judicial mechanism to impeach a superior court judge.
“If the legislature had intended that the jurisdiction of the court should be ousted under Article 107 of the Constitution to impeach judges, it ought to have specifically provided for such an eventuality,” he observed.
The Court of Appeal jurisdiction under Article 140 of the Constitution to hear this case is not ousted by any ouster clause or by any law, he added.
He opined that the Legislature has not placed any such obstacle, “either directly or by necessary implication in the way of entertaining the present application.”
Petitioner Chief Justice (CJ) Dr. Shirani Bandaranayake filed the case seeking the Court of Appeal to nullify the findings of the Parliamentary Select Committee (PSC) as she was not given a fair hearing and the PSC had acted unreasonably in breach of natural justice.
At the outset, President’s Counsel Romesh de Silva appearing for the petitioner, referred to the Supreme Court determination that decided Standing Order 78A is unconstitutional and illegal and argued that on that ground alone, the findings of the PSC should be quashed.
Mr. de Silva alleged the PSC failed to give a list of witnesses and documents, gave no adequate time (less than 24 hours) to inspect the bulky documents of more than 5,000 pages, denied the opportunity to cross-examine witnesses and refused to allow independent observers.
The counsel pointed out the bias of the Government members of the PSC. Clearly, the accusers, prosecutors and judge were all the same – contrary to all norms of a proper, fair and impartial inquiry.
The PSC acted deviously by informing the CJ and her lawyers that no witnesses would b called. However, 16 winesses had been called over the phone. This has been done knowing that there would be no one to cross examine the witness and that none of the witnesses would withstand the cross examination, the counsel said.
The witnesses were called at 4 p.m. after the Opposition PSC members walked out, and the evidence was recorded until 8.30 p.m., Mr. Silva said. He also submitted that there was also procedural impropriety, which was one of the grounds on which the findings of the PSC could be nullified. There was no proper clear procedure adopted by the PSC, he said.
The CJ wanted to waive the secrecy clause and to give her a public hearing which was refused and the request for independent observers was also denied.
PSC Member Minister Rajitha Senaratne, was biased as the Petitioner has held against his wife in a rights petition. Minister Senaratne told at the committee that the petitioner had held against him in another case. “The minister had told ‘if she can hear my case I can hear her case,’ ”Mr. Silva submitted.
“The insinuation is that if she (the petitioner) can hear Minster Senaratne’s case although he had opposed her appointment as a judge to the Supreme Court, he could hear her case,” Mr. Silva submitted.
The President’s Counsel pointed out that the Minister or his wife did not object to the petitioner hearing their cases. “The minister could not now claim that my client held against him because she was biased.”
Furthermore, he is on record stating that he was opposed to the appointment of Dr. Bandaranayake to the Supreme Court on the basis that she was a legal academic and not a practicing lawyer, Mr. De Silva pointed out. Mr. De Silva further submitted that MP Wimal Weerawansa who made several public allegations and statements against the CJ also participated in the PSC despite objection to same.
But the PSC Chairman overruled these objections without consulting the other members. Mr. De Silva pointed out that Government PSC member Nimal Siripala De Silva took up the position that the PSC’s inquiry was not to go into ‘charges’ but to look at the ‘conduct’ of the CJ. Thus, the scope of the inquiry was wrongfully and unduly broadened, Mr. de Silva alleged.
Failure to adhere to proper procedure and the treatment meted out to the Chief Justice and her lawyers were contrary to the norms of any civilized nation respecting judicial independence, he added.
However, the PSC chairman maintained that the PSC was not a court of law and was not concerned with those laws, the counsel said.
Mr. Romesh De Silva submitted that the purpose of the whole impeachment ‘fiasco’ is intended to remove the Chief Justice and to appoint “a stooge who would do the bidding of the powers that be.”
“Independence of the Judiciary is in grave peril, which is why this case is so important,” he said. Removal of a judge merely because some case is filed against a family member would render it possible to remove any Superior Court judge by simply filing some case against him/her. Furthermore, it doesn’t amount to proven misconduct, he argued.
Counsel M. A. Sumanthiran appearing for respondent PSC member TNA MP R. Sampanthan made submissions that all persons and parties must respect and uphold the Constitution.
He told Court that the Opposition members in the PSC asked the PSC Chairman, that adequate time to respond should be given to the CJ. The Chairman overruled all requests, causing the Opposition members in the PSC to walk out in disgust and protest. Thereafter, the evidence of 16 witnesses was recorded until 8.30 p.m.
By 8.30 the following morning – in less than 12 hours – a 35-page ‘Report’ was ready. His client had protested when he heard of this shocking conduct.
Mr. Sumanthiran concluded that his client had warned the PSC Chairman that failure to respect Court rulings relating to constitutional interpretations would lead to a breakdown of the Rule of Law, which would make Sri Lanka a ‘failed state’ and which should be avoided.
“There could not have been a better case than this case, fit to issue a writ,” Mr. Sumanthiran said.
Counsel J. C. Weliamuna, appearing for respondent PSC member JVP Parliamentarian Vijitha Herath, stated the PSC chairman overruled around 20 issues relating to the propriety of the inquiry raised by the four Opposition members of the PSC.
When a President is impeached, he has the protection of an independent inquiry by the Supreme Court. Why should a Superior Court judge be denied an impartial, fair inquiry meeting required judicial norms? The Supreme Court determination on the constitutionality of Standing Order 78A is binding and accordingly, the Petitioner is entitled to the relief sought, he said. Government rank PSC members were absent and unrepresented. Attorney General Palitha Fernando PC., appearing to assist the Court submitted Court should consider whether it has the jurisdiction to entertain this application.
He contended in terms of Article 4 of the Constitution the Parliament has not only ‘legislative’ power but also certain other powers such as removal of the President and Members of Parliament but the Constitution has deliberately left out the judiciary from the impeachment of a Superior Court judge.
Therefore, the Appeal Court should not review steps taken to impeach the Petitioner Chief Justice. The Attorney General contended that the Appeal Court should refer the matter to the Supreme Court for interpretation as to whether Article 4(c) permits the Appeal Court to entertain this application.
Justice Sriskandarajah noted that the question is as to the whether the failure of Parliament to provide the forum, procedure, burden of proof and a proper manner of conduct of an inquiry renders the PSC inquiry illegal and a nullity. “This does not involve interpretation of the scope of Article 4(c),” he said.
Mr. Romesh De Silva, in his reply pointed out Sri Lanka has given an undertaking to the international community as far back as 2003 that the PSC inquiry could be subject to the judicial review and he charged that the Attorney General is taking a contrary position.
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