25 November, 2020

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Breaking News: CJ’s Case – Full Text Of The Court Of Appeal Order

By Colombo Telegraph

The Court of Appeal today observed that it has the jurisdiction to hear the writ petition filed by Chief Justice Shirani Bandaranayake challenging the findings of the Parliament Select Committee (PSC) and as such issued notices on the Speaker and PSC members returnable on January 3, 2013.

The Appeal Court also observed that the Speaker and the PSC members should advise themselves not to act in a derogatory manner with regard to the CJ’s rights and that any act disregarding the ongoing case and moves to alter the status quo may lead to chaotic situation in the country.

President of the Court of Appeal S. Sriskandarajah, and justices Anil Gooneratne and A.W.A. Salaam heard submissions in support of the motion by Counsel for the Chief Justice, Romesh De Silva PC.

Read the original text of the order here

The Petitioner in this application has sought a writ of certiorari to quash the findings and/or the decision contained in the report of the 2nd to the 8th Respondents marked P17.

The Petitioner stated that the 2nd to the 12th Respondents were appointed by the 1st Respondent the Hon. Speaker of Parliament to a Parliamentary Select Committee (PSC) under Standing Order 78A of the Parliament to investigate into alleged acts of misconduct or incapacity of the Petitioner, pursuant to a resolution presented to the 1st Respondent in terms of Article 107(2) of the Constitution.

The Learned President’s Counsel for the Petitioner submitted that the Petitioner was served with a letter dated 14th November 2012 containing 14 charges and the Petitioner was requested to answer these charges within a week’s time ie on the 22nd November 2012. The charges contain factual matters with required reference to various documents and Bank Statements and as it was humanly impossible to comply with the said time limit a request was made to extend the time to answer the said charges but it was turned down by the PSC.

In these circumstances the Petitioner appeared on the 23rd of November 2012 as requested by the PSC by submitting a limited response to the charges. The Petitioner’s Counsel further submitted that the Petitioner requested the PSC to inform the procedure that would be adopted in the said investigation and to provide the list of documents and list of witnesses but the Petitioner was not given these information but on the 6th of December 2012 which was the next date during the course of the proceedings at about 4.00 p.m. a bundle of over 80 documents which contain over 1000 pages were handed over to the Counsel of the Petitioner and was informed that the inquiry would commence on the next day namely 7th December 2012 at 1.30 p.m.

The request for further time to study the said documents was also refused by the PSC. The learned President’s Counsel contended that the Petitioner was informed by the PSC that the investigation will be conducted by producing documents and no oral evidence will be led.

But When the Petitioner and some of the members of the PSC walked out on different dates protesting that the PSC had not adopted a fair procedure the remaining members of the PSC called witness and admitted oral evidence. In these circumstances the Learned President’s Counsel submitted that the findings of the PSC that the charges No 1, 4 and 5 are proved were tainted with procedural irregularity. The Petitioner was not given a fair hearing and the rules of natural justice had not been followed by the PSC in the said investigation, hence the finding of the PSC is unlawful and arbitrary.

The Learned Counsel for the Petitioner brought it to the notice of court an undertaking given in the periodic report to the Human Rights Committee, whereas it states:

“Article 107 a judge can be removed only on “proved grounds of misbehaviour or incapacity” and the standing orders allows for the judge in question defend himself either on his own or retaining a legal counsel, non adherence to the rules of natural justice by the inquiry committee would attract judicial review. Indeed nowhere either in the relevant constitutional provisions or the standing orders seek to exclude judicial scrutiny of the decisions of the inquiring committee.”

The Learned President’s Counsel also cited a passage in the judgement of Abrahams CJ in re Mark Antony Lyster Bracegirdle 39 NLR 193 at.p. 205 where Abrahams CJ cited with approval the statement of Scrutton L.J. In Rex v Superintendent of Chiswick Police Station, ex parte Sacksteder (1918) 1 K.B.578 at .p.589, Scrutton L.J. said:

“I approach the consideration of this case with the anxious care which His Majesty’s Judges have always given, and I hope will always give, to questions where it is alleged that the liberty of the subject according to the law of England has been interfered with

This jurisdiction of .his Majesty’s Judges was of old the only refuge of the subject against the unlawful acts of the Sovereign It is now frequently the only refuge of the subject against the unlawful acts of the Executive, the higher officials, or more frequently the subordinate officials. I hope it will always remain the duty of His Majesty’s Judges to protect those people.”

The power of the Court of Appeal to exercise judicial review on findings or orders of persons or body of persons exercising authority to determine questions affecting the rights of subjects are wide and this power has been provided to the Court of Appeal by the Constitution of the Democratic Socialist Republic of Sri Lanka.

Therefore this power cannot be abdicated by the other arms of the government namely the Legislature or Executive.

Article 140 of the Constitution provides that:

Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect and examine the records of any court of first Instance or tribunal or other institution, and grant and issue, according to law, orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warranto against the judge of any court of first instance or tribunal or other institution or any other person. (emphases added)

The circumstances in which certiorari and prohibition will be available have been summed up by Lord Justice Atkin in R v Electricity Commissioners (1924)1 KB 171 at 205 in the following words:

“Whenever anybody of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”

These famous words of Atkin LJ on numerous occasions have been cited and followed by our courts. Dheeraratne J, in Sirisena Cooray v Tissa Dias Bandaranaike (1999) 1 SLR 1 at 16 observed that, “Over the years frontiers of Lord Atkin’s formula—have been advanced by judicial decisions. It is no longer the duty to act judicial or quasi-judicially which attracts review but the duty to act fairly

In the instant application the Petitioner’s complaint is that the body of persons (PSC) appointed by the 1st Respondent which comprised of Members of Parliament were entrusted with the task of determining questions affecting the rights of the Petitioner and therefore they should have acted judicially and or fairly but they have failed in their duties.

The submission of the Learned President’s Counsel of the Petitioner was that the PSC had acted in violation of the rules of natural justice in arriving at the finding that the charges No 1, 4 and 5 are proved against the Petitioner and hence the said decision is subject to judicial review and be quashed by a writ of certiorari.

The PSC in considering the charges against the Petitioner is not exercising its legislative power but exercising powers of judicial nature, whether it can exercise judicial power against a person who is not a member of parliament is a question that will be determined in another application pending before this Court.

The PSC appointed by the Hon Speaker has in fact exercised powers of judicial nature in finding that the 1st, 4th and 5th Charges are proved against the Petitioner. Whether the PSC has the power and authority to act in the manner it has acted or whether it has exceeded its power or has failed to act judicially in arriving at their finding are matters subject to judicial review under Article 140 of the Constitution.

The Petitioner also complained that the Petitioner was not given a fair hearing as two of the members of the PSC who were biased towards the Petitioner sat as members of the PSC which arrived at the said decision despite the objection of the Petitioner.

The Petitioner contended that there is no evidence to come to the conclusion that the charges No 1, 4 and 5 are proved.

As the Petitioner has established a prima facie case for consideration, this Court issues notice on the Respondents.

The Petitioner has also sought an Interim Order restraining the 1st Respondent and /or 2nd to 13th Respondent from acting on and or taking any further steps based on the purported report marked as P17 until the hearing and determination of this application.

This Court is of the view that any steps taken in furtherance of the findings and/or the decision contained in the report of the 2nd to the 8th Respondents marked P17 would be void if this court after the hearing of this application issues a writ of certiorari to quash the said findings and/or the decision of the PSC, therefore the relevant authorities should advise themselves not to act in derogation of the rights of the Petitioner until this application is heard and concluded, since any decision disregarding these proceedings to alter the status quo may lead to chaotic situation.

This court is conscious of the fact of a ruling of the Honourable Speaker on the notice issued by this court (in relation to another application pending in this court) on the Hon. Speaker of Parliament and on the Members of the Select Committee appointed by the Hon Speaker. Where Hon Speaker ruled:

“I declare that the purported Notice, issued to me and to the Members of the Select Committee are a nullity and entail no legal consequences. I wish to make it clear that this ruling of mine as Speaker of Parliament, will apply to any similar purported Notice, Order or Determination in respect of the proceedings of the Committee which will continue solely and exclusively under the authority of Parliament.”

On this ruling of the Hon. Speaker this Court wishes to have it placed on record that the order to issue notice on the Respondents of this application is nothing but a legal obligation on the part of the court to afford the Respondents an opportunity of being heard, thus adhering to the concept of audi alteram partem.”

Related posts;

CJ’s Case: Not To Act In A Derogatory Manner -AC Issued Notices On Speaker And PSC Members

CJ’s Case: AC To Decided Tomorrow Whether To Issue Interim Order And Serve Notice On Speaker

Impeachment Proceedings Subject To Review By Courts- Sri Lanka Tells United Nations

CJ’s Writ Applications Will Be Supported Tomorrow Morning

Breaking News: Chief Justice Filed Action Against PSC Report: Full Text Of The Petition

 

 

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Latest comments

  • 0
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    Good Move Bravo.

    • 0
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      Excellent work!
      After quashing the impeachment motion against the CJ the next step is to impeach Mahinda Rajapasksa and his brother Chamal Rajakse for bringing malicious disrepute on the judiciary, the legislature, the executive office and the the sovereign people of Sri Lanka by running a Kangaroo Court in the Sri Lanka parliament.
      The Rajapassa reign of immunity and impunity must end!
      THE PEOPLE OF LANKA WILL BURN THE PSC REPROT IN FRONT OF THE PARLIAMENT TO SHOW THEIR CONTEMPT FOR THE KANGAROO COURT AND THE PSC MEMBERS – PARTICULARLY WEERAWANSA AND DILAN PERERA WHO INSULTED THE CJ, AND RANIL WICKRAMASINGHE’S STOOGES who collaborated with the Rajapassa regime and went to the celebratory after party with Chamal!

  • 0
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    Even though we expected more than this, this is some consolation for all the peace-loving Sri Lankans.

  • 0
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    From the CA Order:

    “This Court is of the view that any steps taken in furtherance of the findings and/or the decision contained in the report of the
    2nd to the 8th Respondents marked P17 [PSC Report] would be void if this court after the hearing of this application issues a writ of certiorari to quash the said findings and/or the decision of the PSC…”

    Note that, it is great import.

  • 0
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    WE NOW HAV A BRAVE VERDICT BY THE COURT OF APPEAL, LETS SEE IT TO THE BITTER END. LIKE THE TRINITY MOTTO( I AM NO TRINITIAN)”REPICE FINEM”

  • 0
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    Speaker should honour the constitution and laws of the country not try to prove the superiority of parliment.

    • 0
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      The legality of the constitution can only be judged by the legal system. Although the legislature can cry that they are following the constitution, its the court that has to power to say if the legislature is correct or wrong.

  • 0
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    Wow! My tribute the Honorable Judges!

  • 0
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    Whether she had court experience or not, when appointed to the supreme court as chief justice, Shirani Bandaranayake had a lengthy education and had obtained a doctorate and had taught law at university, as a professor.

    Thereafter, she had sat in judgment of the country’s most serious cases for many years. Although she was not impartial to government patronage, that seems to be a characteristic of Sri Lanka’s public service culture and cannot be used against her.

    It is the question of judging a person of such high office that needs attention. Those who would consider whether she is guilty or not, of inappropriate behaviour, abuse of judicial power, unfair use of privilege etc must of necessity be at least equal if not higher than herself in terms of position, experience in law, respectability and integrity.

    I would suggest that simple members of parliament with no minimum qualifications to enter parliament, no test of integrity, no proven track record of fairness or justice, are not suitable to sit in judgment.

    Therefore, a panel of retired top-notch judges, professionals like respected academics and others of high office should be tasked with examining the above matters. The sooner that is done, the better for the respectability of Sri Lanka in the eyes of the world.

    • 0
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      Grade 8 qualified guys judging the CJ who has a PhD. Only in Sri Lanka. I think the constitution should be amended to read only those who have at least a basic degree can contest an election. If we can achieve this then there will be fewer thugs, no actresses, dancers and bullies in the parliament. Sri Lanka will be a better place to live.

  • 0
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    Analysis of recent chaotic situations observed in the country shows some similarities, there are few examples which cannot easily be discarded as insignificant. What ever the bizarre idea initiated by them ended up with an absolute chaotic situation. They introduced a previously unknown kind of an unusual method to calculate measurements in statistics which ended up in utter failure, clear judgment was given as they have violated the fundamental rights. Then to cover up the mistakes, same officials introduced a creepy method for admissions which they find it impossible to publish due to the fact that there are zero allocations for several faculties in several districts. That seems to be another bizarre looking, kind of a novel idea which has not been published yet in fear of serious repercussions. Impeachment is also seemed to be a similar kind of abnormal idea which seems to have already created an utter chaos. Some believe that these underhand works are not just mistakes, probably well planed manures to create a chaotic situation. Some individuals tend to enjoy utter chaotic situations as there is plenty of room opened up for corruption under those irregular and unequal circumstances. If they are allowed to continue with such manures by continue to staying in such positions what would be the future consequences remains to be seen, which could result in serious national and international repercussions. That is not going to do any favor for the country as a whole. Haven’t they already done irreversible and considerable damage to the good image of our nation and to the political leadership? That is the reason why officials in civilized nations resign immediately after a judgment is given in Supreme Courts against them. If they continue to stay, they might even bring impeachments against Her Ladyship and their Lordships of Supreme Court Justices of the Supreme Courts who gave a clear Judgment against them. Sri Lankan officials are yet to learn ethics, their responsibilities for the society, international norms, accepted practices and proper standards of conduct. Inevitably, there will be prolonged court proceedings in the coming years as well, obviously irregularities and inequalities on admissions will ends up in court proceedings as they plan another kind of method next year. Will there be another impeachment next year?

  • 0
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    The Rajapakse family finds itself in that dilemma of having caught the
    tiger by the tail – to use an old Sinhala expression. Now this is a different Tiger and has to be dealt without the luxury of a 400,000 tri-armed forces equipped to the teeth. The Family is, of course, well-equipped with street cunning, the Standard, that may or may not see them through. If necessary the regime will resort to – not one step – but many steps backwards to save their hides. Those are the hallmarks of born survivors. Honour and principles have no place here.

    Senguttuvan

  • 0
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    The many lapses of the judiciary in accomodating culminated in the Executive attempting to use the HIGH COST RUBBER STAMP PARLIAMENT WHERE HIS SECURITY OFFICER BROTHER IS THE HEAD to fet the jdiciary to work according to his agenda.Great that a woman brought the new rich Medamulana family to public notice and where the country has risen together.
    THE PANEL APPOINTED WERE NOT SUITABLE AT ALL TO TRY THE CHIEF JUSTICE OF THE COUNTRY A LEARNED LADY FROM A’pURA.THE CHAIRMAN HAS BEEN REFERRED TO AS A KASSIPPU OFFENCE DEFENCE LAWYER FROM KULIYAPITIYA.THE DENTIST WHO IS A KNOWN TO HAVE A FOUL STINKING MOUTH A CORRUPT FELLOW WHO SOLD OUT DATED DRUG TO THE ARMED FORCES AND WAS CONVICTED,A MAN WHO WAS CALLED AN UNEDUCATED BERAWAYA WHO THINKS HE IS ALL KNOWLEDGEABLE A CROOK WHO HAD NOTHING NOW A BILLIONAIRE.PREMJAYANTHA A MAGISTRATES COURT LAWYER WHO HAS ROBBED THE PETROLEUM.AS EDUCATION MINISTER HE ROBBED BY TAKING MONEY AND ADMITTING TO BIG SCHOOLS,A KNOWN CASE IS A MUSLIM GEM MERCHANT FROM BERUWALA WHO OPENLY TELLS WHO PAID 5 LAKHS TO GET HIS SON TO ROYAL COLLEGE.CEMENTI KOTTE FROM BADULLA A BRIEFLESS LAWYER IN COLOMBO WHO HAD BEEN CAUGHT NAKED WITH A PROSTITUTE IN THE HEALTH MINISTRY BY HIS WIFE AND HAMMERED THEN THE NOTORIOUS DILAN PERERA WHO A BADULLA READER SAID WILL NOT SPARE A SINGLE VILLAGE WOMAN.
    We defend the position of Chief Justice not the individual.If she has done any wrong when the Medamulana family is very honest and their wealth is as before when the villager DA died as an honourable good man then try her by appointing a commission of decent educated men not thrada fellows.
    Someone must move court to reverse the 18th amendment as its very bad for the country

  • 0
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    I notice that certification of the court of appeal by mistake entered as 12/12/2012.(stamp date is correct)

    Please do rectify the mistake. Respondant had made big mistake but do not make any mistake in this process.

  • 0
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    When a court sits in judgement on a matter of dispute it regards neutrality as something more than impartiality between the parties to that dispute.Which means that the court should not advert to matters beyond those necessary to decide on the matter before it.
    This aspect has been amply satisfied with by the judges of the Court of Appealin the matter of the writ petition filed by the CJ which came before them.

  • 0
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    The Speaker and the Parliament have to bow down to the Judiciary (the directive of the Appeals Court). If not, they are about to lose their legitimacy in the eyes of the people-the real Sovereigns in this land! The executive and the legislature have to regain their sanity and understand the limits of their power, as the judiciary is in the process of doing. This so-called crisis in Sri Lanka, may eventually turn out to be a great boon to he people and a blessing in disguise.

    Dr.Rajasingham Narendran

  • 0
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    I believe today ( 21-12-12 ) is a very good day. It is a day for change and a change for good….and you are been selected by God to do that change for Sri Lanka.

    Fear no one madam CJ as there is a powerful Judiciary, Opposition and 20 Million Citizens force behind you.

    Go for the Goal. Good Luck. knowledge is Power….nothing else.

  • 0
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    The Speaker and the members of the PSC are bounded by the decisions of the Court of Appeal. The decision is very clear. When hearing a case the PSC had failed to act as a judicial body by ignoring the principles of Natural Justice. In my view if any member states that they are not bound by the decision of the Court of Appeal, then it is up to the Court to lift the vail and find out their ulterior motive and charge them for contempt for court. Moreover if some lawyer-mebers insist that they are not bound by the decision, then they should be disenrolled from the legal profession. I wonder whether some of these lawyers and some lawyer-Ministers (Even Keheliya Rambukwella talks non-sense on this decision which cannot be tolerated.) in the Government had sound practice. This is the best opportunity to punish these characters. Time and again we like to emphasize that it is the Judiciary which has the final authority to interpret the Constitution and not the Parliament.

  • 0
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    Large majority of the parliamentarians will not be re-elected in a couple of years time, where as the judicial process would continue as the judiciary is permanent and established, once it has been initiated by the courts, especially the cross over MPs who do not represent their voters may find it extremely difficult to re-enter, new party organizers have already been appointed. If the crosses over MPs receive more votes the exiting members will be rejected. Anyway, the opposition is having a good time ahead, look like this is an internal and self destructive process initiated by some officials who misguided the politicians in order to cover up their misdeeds from the judiciary. Removal of the officials who continue to misguide the Judiciary and the politicians would put an end to the vicious cycle of disruption initiated the people who are responsible for this debacle. What has the government achieved so far from this conflict? Those officials who promote a conflict within the system seem to be deliberately harming the authority. Politicians do not seem to understand how exactly is the Judiciary is functioning. Prolong legal battles between the many individuals seem to have been initiated, by the time a final verdict is given in future, completely different set of politicians would be in the parliament.

  • 0
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    This is a valiant and timely decision taken by the Court on behalf of the people of this country. Also we hope that court never turn round to create a situation like allowing the 18th amendment in place.

  • 0
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    How can the CA direct the parliament? CA is hearing their boss’s case.What is natural justice? Only the judiciary think that they are the superiors of this country.The truth is not that.This govt. was selected by the poor villagers of this country.PC’s like Romesh cannot understand these things.Only few lawyers who are UNP supporters shouting against the govt.Ordinary people are with the govt.
    This CJ was appointed by this govt.Now she is trying to overrule the same govt.How can she do that? She was good with the govt. when her husband was in the top places of the govt.He has misappropriated govt. money.Is CJ asking the govt.to withdraw the charges against her husband?
    Even a child can understand what is she doing.President should not listen to any other forum. Remove the CJ immediately from the office.Please protect the judiciary and the law of this country.

  • 0
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    Gamiliya,

    Just let me highlight just a few to educate you.

    First I don’t know if you are a Govt.propagandist….or a jenuine person looking for answers………like me.

    Whatever… I give below some points, to be decided by you who is correct.

    1)You say Poor villages selected Govt…..I have a doubt about it as during the last several elections, ballots were rigged by Govt. henchmen….and ven election commissioner, opposition and the general public know about it.

    2) Over 100 Govt.Ministers and MP’s are from opposition parties who were bought over by President paying a huge sum…..for him to get 2/3 majority. So this is not a jenuine People’s warranted Govt.

    3)No where in the constitution it says that Legislature is more supreme than Judiciary. Infact it is the Judiciary who authorise all the Parliament Bills to validate it’s ependiture and is responsible to citizens on those expenditure.

    4)Nobody in the legislature has much knowledge to interpret constitution as they are not sufficiently qualifiede in LAW to interpret it…And I AM SURE THAT NONE OF THEM EVER READ THE FULL CONSTITUTION TO VALIDATE THEIR CAUSE. IT IS ONLY SC AND JUDICIARY COULD INTERPRET THE CONSTITUTION AND THEIR JUUDGMENT IS CORRECT.IT IS SAME ALL OVER THE WORLD.

    5)If you read from the beginning of this CJ trial….it was flawed, one sided, lot of biased judgments, fraud with 117 signed even without knowing or seeing the charges, harassing CJ etc,giving one day to answer 14 charges with 1000 pages etc..

    6)Mr.Kariyawasam was none executive chairman at NSB. There are other 20 odd directors plus the Governor of Central Bank involved to authorize this Stock Transaction. So why only mr. Kariyawasam was penalized, terminated from work, humiliated him and the CJ family, Judiciary and finally brought a lawsuit against him.

    7)President’s strong arm method to chase CJ will not work in a Democracy. It may work in a BANANA REPUBLIC OR LIBYA OR IN THE JUNGLE…..AND SRI LANKA IS NOT A BANANA REPUBLIC ….YET.

    A Jenuine trial and People will decide if Sri Lanka is a Banana Republic…. or not.

    Hope you know the truth now.

  • 0
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    Jayantha,
    Sri Lanka is a Military Republic – run by a commissar,who being a public servant but a sibling of the Head of State,is able to order army and police to brutally suppress dissent.
    Those even in state custody,like prisoners,are shot dead even while handcuffed.
    The Speaker and PSC members are sure to spurn the Appeal Court’s order to appear in court on January 3rd.
    This is going to be showdown between the legislature and the judiciary.

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