22 September, 2020

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CJ’s Case: Full Text Of The Court Of Appeal Determination Today

By Colombo Telegraph

Full text of the today’s Court of Appeal  determination.In the application filed by the Chief Justice, the Court of Appeal has issued a Writ of Certiorari quashing the proceedings of the Parliamentary Select Committee on the impeachment.

The Court held that it had jurisdiction to look into this matter and it had the power to exercise judicial review on findings provided by the Constitution. Therefore this power cannot be abdicated by the other arms of the government namely the Legislature or the Executive.

Read the full text here

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    The LANKA SPRING people’s movement for regime change to rescue democracy from the corrupt to the core Rajapakse family dictatorship has been THRUST UPON the people of Lanka!

    This week we shall see LANKA become the THE WONDER OF ASIA and generate a PEOPLES UPRISING. The first ASIAN SPRING MOVEMENT against corrupt dictators in the region shall become a reality!

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    The impeachment motion has brought the Legislature and the Judiciary to a head on clash and will have very adverse repercussions. Therefore without allowing it to get more and more complicated high time to find a solution safeguarding the dignity of the Legislature and the Judiciary.
    In my opinion the Hon. Speaker has the power if he has the will to settle this issue.
    The Hon.Speaker appointed the PSC to inquire into 14 charges level against the CJ and to submit a report for him to present it in the Parliament and proceed with the impeachment motion. However the PSC has submitted the report after inquiring only the first five charges. Therefore the report is an incomplete one. The Hon Speaker can inform the parliament that the PSC has not submitted a full report after inquiring all 14 charges and they have submitted only an incomplete report after inquiring the first five charges. Hence they cannot proceed with the motion.

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    It is interesting to learn that the Appeals Court has not made a determination on the manner in which the PSC proceedings were conducted and its conclusions. It has also not made a determination on the guilt or innocence of the CJ. It has once again asserted its constutional right to be the final arbiter in impeachment procedures in parliament against a judge of the superior courts. The Court of Appeal and the Supreme Court have the sole right to defend the founding principles of our constitution, while the parliament can make laws within the parameters of the constitution and the executive headed by the president can carry out their functions within both the parameters of the constitution and the laws enacted by parliament. This how it should be.

    The superior courts have indeed done right by this country through of their recent determinations. Let us see whether the parliament and executive would do so. The guiding principles are clear beyond reasonable doubt to anyone and every one,.

    Dr. Rajasingham Narendran

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      Dr. Narendran,
      I cannot agree with you that The Court of Appeal and the Supreme Court have been given any authority by our constitution to defend as you say ‘the sole right to defend the founding principles of our constitution,’. Tell us where in our constitution says that. This indeed is a far fetched opinion of your’s. Hatch new laws by dropping words of old laws cannot be ‘founding principles’.

      For one thing, we all agree that JRJ’s constitution is supreme. It says people are sovereign and it allows Executive to rule, Parliament to legislate laws and the judiciary the sole authority to ‘interpret’ the constitution.

      That means the Judiciary cannot make laws. Making laws is the function of the Legislature. One need not be a scholar to understand that dropping ‘or Standing Orders’ from a part of the sentence and taking only the rest of it is forming a new sentence. That is what our Apex Court have done in its recent judgement. They have dropped three essential words and hatched a new law and changed the constitution. Is that the principle you are talking. That’s why I have been commenting here that if this is the way, no point in having a parliament.

      If we go back to the beginning of this melodrama, 117 MPs have accused the CJ with 14 charges and handed over an impeachment to speaker. Most simple Simons were hoping to hear both sides and arrive at their own judgement. But the CJ ran away from a traditionally held inquiry by the PSC and people missed that opportunity.

      Thereafter the PSC continued its investigations in closed doors exparte, found her guilty for three charges and presented its report to the speaker. But the real judgement were to come only when that findings were debated in parliament and voted for it after a month time. They say that was to cool off and guilty party to make a decisions. The CJ backers however used it to make fanatical but absurd effort to stop parliamentary procedure.

      First try by CJ backers were to petition Appeal court to squash the PSC. But, by the time its judgement was out, PSC was no more. So, they made their next move; CJ herself had filed a case at the same Court. This time to squash PSC report. And Appeal court in turn asked the SC meaning the CJ for an interpretation of Article 107(3) of the constitution.

      Now, talking about this SC interpretation, former CJ, Sarath Silva says, SC has missed out “or by Standing Orders“ part of the Article 107(3) of the Constitution which reads, “… Parliament shall by law or by Standing Orders provide for all matters relating to an impeachment”. Though a grade five child could understand that, on order of SC, Appeal Court declared that impeachment must be only ‘by law’ and Standing Order 78 (A) is not law and therefore PSC report is not law on Jan, 4th.

      Ex CJ Silva also said; “According to English law, no where has he found a court that had given verdicts against Parliament….” Judges should be independent; but are they? If what former CJ says is correct, then it is obvious that the law has become an ass.
      Leela

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        Dear Villager,

        Thanks for your response. Though I am noi belong to the legal fraternity, as a person very much concerned about what is unfolding, reading both recent determinations of the superior courts and reading related provisions n the 1978 constitution, am convinced the superior courts constutionlly have the sole right(probably a better word would have been ‘sole and final right’)to defend the founding principles of our constitution.

        I hsve pasted below extracts from the 1978 constitution that together confirm this. Anopinion on your contentio0n from some one from the legal fraternity will be welcome, while acknowledging that many have already empgasised the same princple elsewhere.

        *Preamble:
        –to constitute SRI LANKA into a DEMOCRATIC SOCIALIST REPUBLIC whilst ratifying the immutable republican principles of REPRESENTATIVE DEMOCRACY, and assuring to all peoples FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the People of SRI LANKA and of all the people of the World, who come to share with those generations the effort of working for the creation and preservation of a JUST AND FREE SOCIETY:

        *Exercise of Sovereignty.
        4. The Sovereignty of the People shall be exercised and enjoyed in the following manner :-
        (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;
        (b) the executive power of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;
        (c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law;
        (d) the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government, and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided; and
        (e) the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament, and at every Referendum by every citizen who has attained the age of eighteen years, and who being qualified to be an elector as hereinafter provided, has his name entered in the register of electors.

        *Privileges, immunities and powers of Parliament and Members.

        67. The privileges, immunities, and powers of Parliament and of its Members may be determined and regulated by Parliament by law, and until so determined and regulated, the provisions of the Parliament (Powers and Privileges) Act, shall, mutatis mutandis, apply.

        *Standing Orders.

        74. (1) Subject to the provisions of the Constitution, Parliament may by resolution or Standing Order provide for—
        (i) the election and retirement of the Speaker, the Deputy Speaker and the Deputy Chairman of Committees, and
        (ii) the regulation of its business, the preservation of order at its sittings and any other matter for which provision is required or authorized to be so made by the Constitution.
        (2) Until Parliament otherwise provides by law or by resolution, the Standing Orders of the National State Assembly, operative immediately prior to the commence¬ment of the Constitution, shall, mutatis mutandis, be the Standing Orders of Parliament.

        *Constitutional jurisdiction in the interpretation of the Constitution.

        125. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution, and accordingly, whenever any such question arises in the course of any proceeding in any other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination of such question.
        (2) The Supreme Court shall determine such question within two months of the date of reference and make any such consequential order as the circumstances of the case may require.
        3) Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of habeas corpus, certiorari, prohibition, procedendo, mandamus or quo warranto, it appears to such Court that there is prima facie evidence of an infringement or imminent infringement of the provisions of Chapter III or Chapter IV by a party to such application, such Court shall forthwith refer such matter for determination by the Supreme Court.
        (4) The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstance in respect of any petition or reference referred to in paragraphs (2) and (3) of this Article or refer the matter back to the Court of Appeal if in its opinion there is no infringement of a fundament right or language right.

        *Jurisdiction in respect of the breaches of Parliamentary privileges.

        131. The Supreme Court shall have according to law the power to take cognizance of and punish any person for the breach of the privileges of Parliament.
        Sitting of the Supreme Court.

        Dr.Rajasingham Narendran

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          I must say, I fully agree with everything you wrote above. My only wish is; our judiciary follow it to the letter.

          Like you, I have not studied law. I read engineering in the second part of the sixties.

          With this never ending impeachment tussle however, I have become very inquisitive and learning a great deal about law.
          Leela

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            Very glad to note that Colombo Telegraph Forum has managed to change a Very Hard Nut and put him/her on the correct path towards prosperity of our country by going against the rogues and looters of our poor little country which had a very Glorious Past. This is a good sign and special thanks to Dr. R. Narendran.

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            Villager,

            Thanks. If you were ar Peradeniya, we would have been undergraduates there, though in different faculties, at the same time.

            Dr.R.N

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    This ruling has forced the king to take a bath of excrement for what he attempted to do. It has also created legal precedent which makes impeaching a chief justice a very tough exercise. It rules out ever using mechanisms such the one used by the King ever again. So he not only cooked his own goose but he has cooked the gooses of all like minded future dictators as well. He must be really happy at what he has accomplished!

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    The CA has interpreted the law with regard to the ouster clause with reference to the constitution and thereby invalidated the PSC report.

    “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 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 wawanto against the judge of any court of first instance or tribunal or other institution or any other person.

    The Constitution in Articles 80 (3), 8 1 and 124 expressly outs the jurisdiction of courts. 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.'”

    The parliment and president can debate and do as the wish but the report is null and void. Hence their efforts do not carry any weight in law.

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      Article 140 is under CHAPTER XVI – THE SUPERIOR COURTS and is about ‘Power to issue writs, other than writs of habeas corpus’. Leave other countries when was judiciary ever called for or inspected PSC procedures in Sri Lanka. This is the first time in the world.
      Article 80(3) is under Chapter XI – The Legislature – Procedure and Powers and is about “When Bill becomes law”. And Article 81, is about “Expulsion of Members and imposition of civic disability.”
      Article 124 is under CHAPTER XVI – THE SUPERIOR COURTS and is about “Validity of Bills and legislative process not to be questioned.” Standing Orders that PSC was formed is not a bill. SO are internal rules that are to be adhered within four walls of the parliament.
      Had you have referred to 170, I can understand for it interpret what is law because Appeal court says PSC was not formed according to law. But all that you have mentioned are completely irrelevant chapters to this impeachment.

      I suggest you to start reading from Chapter XV – The Judiciary and particularly Article 107 which is about ‘Appointment and removal of Judges of the Supreme Court and Court of Appeal’ and then read recent Appeal Court judgement and then on to doubtful areas. If you like you may read my reply to Dr.Narendran as well.
      Leela

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      Safa,
      Article 140 is under CHAPTER XVI – THE SUPERIOR COURTS and is about ‘Power to issue writs, other than writs of habeas corpus’. Leave other countries when was judiciary ever called for or inspected PSC procedures in Sri Lanka. This is the first time in the world.
      Article 80(3) is under Chapter XI – The Legislature – Procedure and Powers and is about “When Bill becomes law”. And Article 81, is about “Expulsion of Members and imposition of civic disability.”
      Article 124 is under CHAPTER XVI – THE SUPERIOR COURTS and is about “Validity of Bills and legislative process not to be questioned.” Standing Orders that PSC was formed is not a bill. SO are internal rules that are to be adhered within four walls of the parliament.
      Had you have referred to 170, I can understand for it interpret what is law because Appeal court says PSC was not formed according to law. But all that you have mentioned are completely irrelevant chapters to this impeachment.

      I suggest you to start reading from Chapter XV – The Judiciary and particularly Article 107 which is about ‘Appointment and removal of Judges of the Supreme Court and Court of Appeal’ and then read recent Appeal Court judgement and then on to doubtful areas. If you like you may read my reply to Dr.Narendran as well.
      Leela

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    Dear Villager,
    The question of the ‘By law or standing order’raised by you irked me as well. The following consitutional provisions when read in full probably clarify that matter:

    “Independence of the Judiciary:

    Appointment and removal of Judges of the Supreme Court and Court of Appeal.

    107. (1) The Chief Justice, the President of the Court of Appeal and every other Judge, of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand.

    (2) Every such Judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity :

    “Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity.

    (3) Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.

    The problem seems to that,

    1.The parliamentarians have not set out full particulars of the alleged misbehaviour or incapacity.

    2.The laws or standing orders have not laid down clear procedures, investigation and proof, and the right for the judge to heard in person or by representative.

    The manner in which the CJ and her representatives were treated at the PSC, did not meet the criteria/ standards meant by the term ‘Heard’. The word ‘Heard’in this instance implies the right to hear/read and examine the evidence and respond.

    Dr.Rajasingham Narendran

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    The Supreme Court’s interpretative ruling that the power of the Parliamentary Select Committee (PSC) to make a valid finding on the allegations of misbehaviour against the Chief Justice can be conferred only by law and the Court of Appeal’s writ quashing the finding of PSC will not prevent the Parliament from passing a resolution of address to the President to remove Chief Justice Shirani Bandaranike.

    A reading of the Sri Lankan Constitution clearly indicates that Parliament in terms of article 107(2) is entitled to make the required address to the President recommending the removal of Shirani Bandaranaike without the need for a law on procedural matters under article 107(3). Article 107(2) requires only a resolution signed by one-third of the total members of Parliament and a simple majority of the whole House of Parliament to make the necessary address to the President..

    As rightly pointed out by Neville Ladduwahetty in an article to Island newspaper, Article 107(3) of the 1978 Constitution provided an additional safeguard and removed the arbitrariness of the 1972 and Soulbury constitutions. 1972 Constitution and the Soulbury Constitution required a simple address of parliament. They did not provide for any procedures requiring an inquiry into the allegations of misbehaviour or incapacity. The three Supreme Court judges have now effectively removed this additional safeguard in the 1978 Constitution.

    The fact that Parliament has not provided by law a procedure relating to the presentation of the address to President or for the passing of the resolution or for the investigation and proof of the allegations of misbehaviour as ruled by the Supreme Court is no bar for it to pass the impeachment resolution under article 107(2). Article 107(2) is the operative provision and it can stand alone without article 107(3). Article 107(3) only provided for the setting up of procedures.

    Now that the Supreme Court has effectively removed the safeguard under article 107(3), the Parliament can go ahead and pass the resolution of address to the President without discussing the findings of the PSC.

    With the safeguard under article 107(3) made ineffective by the Supreme Court, government MPs can bring motions against any judge of the Supreme Court or Court of Appeal and pass resolutions against them.

    Writ of certiorari issued by the Court of Appeal is most questionable. It has no jurisdiction to issue a writ of certiorari against the Speaker or members of the Parliamentary Sub Committee.

    Court of Appeals’ writ jurisdiction is conferred under article 140 of the Constitution. It has to be exercised subject to the provisions of the constitution. Article 140 reads as follows:

    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, writs in the nature 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:

    The writ was issued not against the Parliament but against the Speaker and members of the Parliamentary Select Committee. Apparently they were sued under the last category “any other person” in terms of Article 140. Court of Appeal has assumed jurisdiction by wrongly interpreting Article 140. “Any other person” mentioned in article 140 should be someone who is in the position exercising powers similar to court of First Instance. Under the “ejusdem generis rule” of legal interpretation, if a broad term is preceded by a number of specific terms, the broad term should be read down to cover only those matters in the same category as the specific terms. Wikepedia provide the following explanation of this rule:

    When a list of two or more descriptions is followed by more general description, the otherwise wide meaning of the general description must be restricted to the same class, if any of the specific words that precede them. For example, where “cars, motor bikes, motor powered vehicles” are mentioned, the word “vehicles” would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

    Speaker or the Members of Parliament constituting the PSC are not in the same category as the court of First Instance. They are not exercising jurisdiction similar to a Court of First Instance.

    Under the common law, writs can be issued only against bodies or persons that have the legal authority to make determinations affecting rights of people. Those legal authorities should have a duty to act judicially. Judicial act has been interpreted to include quasi judicial functions by administrative bodies or authorities or persons who are obliged to exercise such functions. Writs could then be issued if that legal authority has acted without jurisdiction or in excess of jurisdiction or fail to observe principles of natural justice.

    Under Article 107, members of the PSC were not be exercising judicial or quasi judicial authority. They were not determining any questions affecting the rights of Chief Justice Shirani Bandaranaike. They were only sitting as a panel of inquiry tasked with making findings or recommendations in relation to the allegations of misbehaviour. They were not deciding anything. PSC members were not obliged to make decision in relation to the allegations. Their findings are in the form of recommendations which the full House of Parliament may accept or reject. Even the Parliament’s vote on the allegations will be in the form of recommendations to the President. The President is not mandated to act according to the recommendation. He can simply ignore it or reject it outright. Under the 1978 Sri Lankan Constitution, the President is the final authority vested with the power of appointment and removal of superior court judges.

    In my opinion, Court of Appeal has erred in issuing the writ. Under common law, a court cannot issue writs against a Member of Parliament for whatever he has done in Parliament in the exercise of his right and duties as a Parliamentarian. British courts have strictly observed this constitutional convention. Sri Lankan courts have not issued writs on Members of Parliament or the Speaker for acts performed in the course of their duties as legislators.

    As I mentioned in one of my previous comments over this issue I stated that when former Chief Justice Neville Samarakone was impeached he did not try to drag the judiciary into the dispute. There were no confrontation between the legislature and judiciary. He honorably resigned having submitted to Parliament and tried to defend the charges. But Chief Justice Shirani Bandaranaike has unnecessarily dragged the juudiciarty and legal profession over a matter which she should have handled honoraby. Some of her actions after the impeachment motion was tabled are highly deplorable. He has done immesurable damage to the Sri Lankan judiciary by dragging members of the judiciary and the legal profession over the impeachment which is only personal to her and has nothing with the independence of the judiciar. Mahinda Rajapakse or his government is not targeting the judiciary.

    What bothers me is that all the opponents of the present government have ganged up and blown up this issue out of proportion. All of them have brought about this unwanted situation.

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