Appeal Court quashes PSC findings on CJ

By Chitra Weeraratne

 The Court of Appeal yesterday issued a Writ of Certiorari quashing the findings of the Parliamentary Select Committee (PSC) which probed impeachment charges against the Chief Justice Dr. Shirani Bandaranayake.

The Court of Appeal, in its judgment, referred to the recent Supreme Court interpretation which said that a PSC to query the conduct of a judge, must be appointed under the law passed by Parliament and not by a Standing Order.

It said the recent Select Committee appointed under Standing Order 78A was void in law.

Dr. Shirani Bandaranayake had filed a Writ Application in the Court of Appeal, requesting the Court to quash the findings, claiming that she had not been given a fair hearing by the PSC.

The Court of Appeal Judgement was by Justice S. Sriskandarajah (President) with Justice Anil Gooneratne and Justice A. W. A. Salaam agreeing.

President’s Counsel Romesh de Silva appearing for the petitioner said that a Trillium Flat had been purchased by the sister and brother-in-law of the Chief Justice. Mrs. Renuka Bandaranayake of Australia had sent money through the Commonwealth Bank of Australia to the National Development Bank of Sri Lanka. The Trillium Residencies had been excluded from the Fundamental Rights violation application against the Ceylinco Directors, 16 months before Dr. Shirani Bandaranayake started hearing the case. The charge I that the Chief Justice had made the purchase was false. Other persons had also purchased similar Trillium flats. They had not obtained permission from the Court to buy them. The charge II was that Rs. 19 million had been paid as an advance and the manner in which it had been earned was not disclosed. That charge was vague and not established. The charge III was Rs. 34 million had been deposited with NDB, which the Chief Justice had not mentioned in the Annual declaration. The annual declaration they referred to had not been stated in the charge, which was also vague and baseless.

The fourth charge was that the Chief Justice had more than 20 bank accounts. The respective banks had denied the existence of those accounts. Since 2008 she has had no accounts in those banks.

The Chief Justice had been accused of not declaring an account opened on March 31, 2012 on April 26, 2012.

The Chief Justice was accused of chairing the Judicial Service Commission, while a case was pending against her husband in the Magistrate’s Court of Colombo. But, she had not interfered in that case.

Only five of the 14 charges had been investigated. The others had been overlooked by the‚ÄąPSC.

The Supreme Court declared that Standing Order 78A was not law. It said The PSC should have been constituted under a law passed by Parliament. The PSC was therefore void in law.

The PSC said that no oral evidence would be led. But soon after the four Opposition members walked out, 16 witnesses testified within 17 hours. A report was prepared soon afterwards, which said that the Chief Justice was guilty of misconduct. All the objections taken by the Opposition MPs had been overruled by the Chairman of the PSC. Only one week had been given for the Chief Justice to file answers. The procedure was unreasonable. Two MPs of the government group were clearly biased against the Chief Justice and there was a clearly set out irregularity for the Court of Appeal to set aside the decision of the PSC.

M. A. Sumanthiran appeared for the Opposition MP R. Sambanthan of the TNA. J. C. Weliamune appeared for JVP MP Vijitha Herath. They endorsed that the findings of the PSC were legally void. The Supreme Court had declared that the PSC had not been constituted under a proper Act of Parliament. They said that the Chief Justice had been insulted when she appeared before the PSC. Impeaching a Justice on false charges was an interference with the independence of the judiciary.

The Attorney General Palitha Fernando, PC, appeared as amicus to assist the Court. He said that Article 4 of the Constitution stated that the legislative power of the people was exercised by Parliament by the representatives of the people.

The power of removal of the Justice of the Supreme Court and the Court of Appeal was clearly kept out of the judiciary, which was kept totally out of the inquiry.

He said the Court of Appeal had no jurisdiction to look into the inquiry against the Chief Justice. Article 107/2 and 107/3 vested the power in the legislature. Article 38 referred to the impeachment of the President, subsequent to an inquiry by the Supreme Court. The expulsion of the MPs was also done after an inquiry by the Supreme Court, according to Article 99, he said.

However, the removal of a Justice could not be done by the Judiciary. The Constitution conferred that power on Parliament. The Judiciary could not look into an inquiry against its own members. The power to remove judges had been taken completely out of the judiciary. The Court of Appeal should refer to the Supreme Court for interpretation of Article 4. Then only would it be clear whether the impeachment process was amendable to the Writ Jurisdiction.

The Attorney General said that it was questionable whether the Court of Appeal had the jurisdiction to look into a procedure before Parliament. What were being challenged there were the proceedings before Parliament. The Supreme Court may determine whether the Writ Jurisdiction in Article 140, was limited by any means. The original Writ jurisdiction was however only in the Court of Appeal. Powers of the Parliament were not amendable to the Courts by Article 4. According to 1972 Constitution, a Justice is removed by the President after an address of Parliament. That had been absorbed into the 1978 Constitution as well. Article 67 of the Constitution explained the privileges and powers of the Parliament. The powers of Parliament were more than the legislative powers.

The question was whether the Writ jurisdiction of the Court of Appeal could be extended to the proceedings of Parliament, the Attorney General stressed.

In the English law the Writ jurisdiction could not be extended to the proceedings of Parliament. "We are today referring to proceedings before the Sri Lankan Parliament," he said.

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