By Colombo Telegraph -
The writ application filed by the Chief Justice Dr. Shirani Bandaranayake was taken up today, 7th January 2013 at 10am, before Justices S. Sriskandaraja, Anil Gooneratne and Salam.
Romesh De Silva, PC appearing for the Petitioner, commenced submissions citing an observation of Chief Justice Abrahams in colonial times when the Attorney General of Ceylon appeared to defend the Governor General in a case, that the court is the only place of refuge for the citizen and said that it is imperative that court does what is right.
He made reference to the Supreme Court determination that Standing Order 78A is ultra vires and unconstitutional and submitted that on that ground alone, the relief sought should be granted, given that under the Constitution it is the Supreme Court alone which is required to interpret the Constitution. It is clear that the PSC is illegal.
Romesh De Silva submitted that apart from the above, the purported inquiry was held in a manner that was lacking in terms of the requirements of Wednesbury Reaonableness. Failure to give a list of witnesses and documents, no proper time given to inspect rheams of documents given with less than 24 hours to go through, denial of opportunity to xross-examine witnesses, refusal to allow independent observers etc were referred to.
De Silva also made submissions highlighting the inordinate bias of the government nominated members of the purported Parliamentary Select Committee. Clearly, the accusers, prosecutors and judge were all the same – contrary to all norms of a proper, fair impartial inquiry.
De Silva also submitted that the PSC acted deviously by informing the CJ and her lawyers that no witnesses were being called and surreptitiously calling 16 witnesses over the phone. Thus, steps were taken to deprive the CJ of a fair inquiry.
He also submitted thar there was also procedural impropriety, in that there was no proper clear procedure adopted by the PSC. In fact, all steps taken to secure a proper process were refused and denied.
He also submitted that Dr. Rajitha Senaratne, Member of the PSC had grounds for bias, given that his wife had made a Fundamental Rights application which had been dismissed by a bench presided over by CJ Bandaranayake. This was pointed out but Senaratne continued to be a part of the PSC. 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 practising lawyer. When the CJ’s lawyers pointed out the bias manifested by Senaratne in the course of the inquiry itself, he rejected it and insisted on continuing to sit.
De Silva further submitted that Wimal Weerawansa, MP who made several public allegations and statements against the CJ also participated in the PSC despite objection to same.
De Silva outlined how Nimal Siripala De Silva took up the position that the PSC’s purported 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 induly broadened.
De Silva submitted that lots of matters submitted and uttered at the PSC proceedings have been omitted from the record of the proceedings. However, even in what is recorded, the PSC Govt nominated members indicate that they have ‘an agenda’, which is not disclosed to the CJ and her lawyers. One can only infer that the ‘agenda’ must have been to find her guilty by hook or by crook and somehow prevent her from acting as CJ.
De Silva cited copious legal precedent from the New Law Reports and Sri Lanka Law Reports which support his arguments. In Bandaranaike vs. De Alwis, Samarakoon CJ says that the reasonable appearance of bias vitiates the validity and propriety of an inquiry. Judgments written by G. P. S. De Silva CJ and Amarasinghe J were also cited in support of the fact that the real and likely appearance of bias (and not actual existence of bias) is the standard of proof required to establish impropriety of an inquiry. The Pinochet case was also cited.
De Silva also submitted that the failure to adhere to proper procedure and the treatment meted out to the Chief Justice were contrary to the norms required in terms of international standards for respecting judicial independence.
De Silva also outlined how blatantly false the purported charges were, which could easily have been demolished at a proper, fair, legal inquiry adhering to judicial norms. He also outlined how the allegation of wrongfully taking over the Golden Key did not entail any benefit to the CJ at all. In fact, Trillium Residencies had already been excluded from the Golden Key case. Several persons including former CJ Asoka De Silva had purchased apartments in Trillium.
De Silva submitted that the allegation of having received Rs.34 million as remittances and maintaining more than 20 bank accounts and failing to disclose in the Declaration as required by law is completely false and fabricated. Very vague purported charges.
De Silva also set out how old account numbers and new account numbers of certain bank accounts have been deceitfully thrown in together as though they were separate accounts. All her accounts have been declared.
Romesh De Silva submitted that the purpose of the whole impeachment fiasco is intended to remove the CJ and 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.
De Silva stated that the 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 proved misconduct.
De Silva submitted that the purported charge referring to the Centre for Policy Alternatives (CPA) was completely baseless and false.
Romesh De Silva urged the Court to grant the reliefs prayed for.
Counsel M A Sumanthiran appeared for R. Sampanthan, MP, a Respondent Member of the PSC made submissions that all persons and parties must respect and uphold the Constitution. He informed court that the Opposition Members in the PSC had prevailed on the Chairman, Anura Priyasharshana Yapa that adequate time to respond to clear charges 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. After that, witnesses have been quickly called (no one knows how) and evidence of 16 persons has been purportedly been taken without the knowledge of the Opposition Members of the PSC. Thereafter, a 35 page ‘Report’ has been published in under 12 hours. Mr. Sampanthan had protested when he heard of this shocking conduct.
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’, which should be avoided.
J. C. Weliamuna, appearing for Vijitha Herath, Member of the PSC associated with the submissions of Sumanthiran and stated that all issues (around 20) relating to the propriety of the inquiry were overruled. 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.
Court took a 10 minute adjournment at 12:20pm before the Attorney General addresses Court as amicus curiae.
When the Writ Application filed by Dr. Shirani Bandaranayake was resumed after a brief recess for the hearing of submissions, Palitha Fernando, PC appearing as amicus curiae on.the request of court submitted as follows:
The Appeal Court should consider whether it has the jurisdiction to entertain this application.
Article 4 of the Constitution grants the Parliament not only ‘legislative’ power but also certain other powers.
Removals of the President, Members of Parliament etc involve review of the Supreme Court. But the framers of the Constitution have deliberately left out the judiciary from the situation of impeachment of a Superior Court judge. Therefore the Appeal Court should not review steps taken to impeach the Petitioner Chief Justice. Several cases such as Victor Ivan’s case refers to the need to maintain a balance of power between the organs of government which uphold that removal of Superior Court judges is a matter for the legislature to the exclusion of the judiciary.
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.
After AG made the above submissions, Justice Sriskandaraja reminded the AG that in this case, 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/trial renders the impugned inquiry illegal or void. This does not involve interpretation of the scope of Article 4(c).
AG conceded that the Constitution does not contain an express prohibition on the Appeal Court entertaining the present application. However, he said that Court should consider whether the powers of Parliament referred to in Article 4 prevents the applicability of the writ jurisdiction (Article 140). This he said, should be referred to the Supreme Court.
AG submitted that proceedings before a Committee of Parliament is the same as proceedings of Parliament in terms of the Parliamentary Privileges Act and that the statutory ouster contained in that Act has to be read into the Constitution.
AG also submitted that the writ jurisdiction of the Appeal Court under Article 140 is granted ‘according to law’. He said that the Court does not have unbridled power in exercising writ jurisdiction. It must be in accordance with statute law and the principles governing writ jurisdiction. The writ jurisdiction does not extend to enabling review of Parliamentary proceedings, he said.
AG conceded that the Appeal Court was correct in issuing notice on the Respondents, in view of the fact that they should be given the right to be heard (audi alteram partem). He submitted that in fact, all the Members of Parliament who signed the Motion should have been made Respondents as necessary parties because they were intested in the process. Therefore, AG submitted that necessary parties are not before court. Therefore the Court should dismiss the application.
Romesh De Silva, PC replying for the Petitioner reminded Court that Sri Lanka has assured in Geneva to the international community as far back as 2003 through then Solicitor General, C. R. De Silva, PC that impeachment process is amenable to judicial review. AG today is taking a contrary position.
De Silva also outlined the broad powers granted to the Appeal Court under Article 140 of the Constitution. No issue of interpretation of Article 4(c) of the Constitution arises. He cited relevant case law in support of his submissions. In any event, in the light of the interpretation of the relevant Constitutional provisions the Petitioner is entitled to the writs sought through her application.
Court was informed by De Silva that information has just been received that the Parliament has placed the impeachment matter for debate on 10th and 11th January 2013, with a vote to be taken at 6pm on the 11th. Therefore De Silva urged that the matter needs to be decided soon.
The Appeal Court adjourned till 3:30pm, and re-assemble to indicate what steps will be taken.