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.”