Colombo Telegraph

On Supreme Court Order Of 1st January 2013: Interpreting Article 107(3) Of The Constitution

By Nihal Sri Ameresekere

Nihal Sri Ameresekere

5th January 2013

Hon. Chamal Rajapaksa

Speaker of Parliament

Parliament of Sri Lanka

Sri Jayewardenepura

Kotte.

Dear Hon. Speaker,

Supreme Court Order of 1st January 2013

interpreting Article 107(3) of the Constitution

I write further to my Letter of 5th December 2012 forwarding my Affidavit of the same date, inter-alia, vis-à-vis, the cover-up by some of the Justices of the Supreme Court of the charges I had made against the conduct and actions of the Chief Justice and their disqualification as a consequence thereof to hear matters pertaining to the Chief Justice. My said Letter of 5th December 2012 was before the hearing on 13th and 14th December 2012 on the aforementioned ‘interpretation’ by the Supreme Court.

Your Honour, with the concurrence of the Leaders of all Political Parties in Parliament, issued a Ruling on 9th October 2012, on the contravention of the mandatory provisions of Article 121 of the Constitution in a Special Determination made by the Chief Justice on a Bill. In the said Ruling, Your Honour, inter-alia, ruled that the Supreme Court was requested to give earnest consideration to re-visit the said Special Determination, and that it was necessary, as well, to rectify a bona-fide error made by the Supreme Court.

In such circumstances, with notice to Your Honour, I filed Petition dated 18th October 2012 under and in terms of Article 132(3) of the Constitution for a review and re-examination of a Special Determination made, without jurisdiction, ultra-vires the expressly mandated deeming provisions in Article 123(3) of the Constitution. I also adduced facts in extenso of improprieties and/or misconduct and/or judicial bias disqualifying the Chief Justice. Some of the matters in my Petition coincidently had become grounds for charges in the Impeachment Motion against the Chief Justice, entertained by Your Honour on 1st November 2012.

In addition, by the said Special Determination made by the Chief Justice, Article 157 of the Constitution, which affords protection to  foreign investments in terms of international treaties passed by the Parliament of Sri Lanka with a 2/3rd majority, and thereby having the force of law in Sri Lanka, was over-written by the Chief Justice, in perversely determining, that such foreign investments could be acquired by the State in the public interest, whereas Article 157 of the Constitution specifically stipulates that it was only possible in the interest of national security. The Supreme Court had no constitutional right or capacity to have so amended the Constitution of the Republic.

I was appalled that, relying on Your Honour’s aforesaid Ruling, my aforesaid Application made under Article 132(3) of the Constitution, which had to be considered solely by the Chief Justice, and not by any other Justice, had however in contravention of Article 132(3) had been considered by the Listing Judge, Justice K. Sripavan. I myself, together with one member of my Office, went to the Supreme Court Registry on 20th November 2012, and personally verified the correctness of the following Minutes from the original Case Record. (Emphasis added)

Hon. K. Sripavan, J

AAL for the Petitioner files Motion dated 18.10.2012 with:

  1. Petition and Schedules “X”, “Y” & “Z”
  2. Documents
  3. Affidavit
  4. Special Affidavit in support of the facts contained in “X”

AAL further moves Your Lordship’s Court be pleased that this Application be taken for Hearing on 16th, 19th & 20th November 2012, for a review and re-examination of Determination made on 24.10.2011. Submitted for Your Lordship’s directions please.

DRSC

19.10.2012

Hon. Chief Justice

The Petitioner by Motion dated 18.10.2012 seeks to review and re-examine the Special Determination dated 24.10.2011. In terms of paragraph 9(h) of the Petition, Hon. Speaker has certified the Bill on 11.11.2011. Upon certification being endorsed, the Bill becomes law and in terms of Article 80(3), the validity of such Act shall not be called in question thereafter upon any ground whatsoever.

This Article (Art 80 (3)) must be interpreted according to its true purpose and intent as disclosed by the phraseology in its natural signification.

If a party perceives “judicial bias & disqualification” against a member of the Bench, such party should have raised objections at the time the Bill was taken up for hearing. If no Objection is taken at the former stage, that party cannot thereafter complain of the matter disclose, as giving rise to a real danger of bias. Any frivolous objection taken after a long period of time without a firm foundation would not only impede the due administration of justice, but also undermines the work of Court.

In view of the foregoing, I do not see any legal basis to entertain the Motion dated 18.10.2012. The Motion may be rejected in limine.

Sgd. Sripavan, J

                                                                                                                22.10.2012

Hon. Amaratunga, J, Hon. Ratnayake, PC, J, Hon. Ekanayake, J.

I agree with the Observations of Hon. Sripavan, J. The Bill in question was considered by this Court on 24.10.2011 and the certificate by the Hon. Speaker had taken place on 11.11.2011. In terms of Article 80(3) of the Constitution the validly of such an Act shall not be questioned on any ground whatsoever.

No Objection was raised on any one of the three Judges who heard the matter on 24.10.2011.

For the aforementioned reasons the Motion dated 18.10.2012 should be rejected in limine.

Pls. consider the said Motion and tender your observations/concurrence.

Sgd. Chief Justice

                                                                                                                23.10.2012

Hon. The Chief Justice

I agree with the observation of Your Ladyship and Hon. Sripavan J, set out above. Since there is no legal basis to entertain the Motion dated 18.10.2012, it should be rejected in limine. The Registrar of the Supreme Court should be directed not to entertain any further Motions/ Applications / Petitions in respect of this matter.

Sgd. Amaratunga, J

                                                                                                                24.10.2012.

Hon. The Chief Justice

I agree with the observations and recommendations of Your Ladyship, Hon. Amaratunga J, and Hon. Sripavan, J.

Sgd. P.A. Ratnayake, J

                                                                                                                25.10.2012

Hon. The Chief Justice

I agree with the observations and directions embodied in Your Ladyship’s Order 23/10/2012, Hon. Justice Amaratunga’s Order dated 24/10/2012, Hon. Justice Sripavan’s Order dated 22/10/2012 and Hon. Justice P.A. Ratnayake’s Order dated 25/10/2012.

                                                                                                                Sgd. Ekanayake, J

7.11.2012

My said Petition and the Minutes made thereon had been called for by the Parliamentary Select Committee on 4th December 2012, as recorded in Column 1 on page 1437 of the Report of the said Committee, prior to the Chief Justice and her Lawyers leaving the proceedings of the Committee in the afternoon of 6th December 2012 – vide Column 2 on page 1505 of the said Report.

From the aforesaid Supreme Court Minutes it would be noted that Justice K. Sripavan had deemed as ‘frivolous’ the charges I had made against the Chief Justice, also stating they were made belatedly, whereas I had submitted similar charges, as far back as 9th February 2012, before a Supreme Court Bench presided by Justice N.G. Amaratunga, who refused to accept the same, minuting as follows:

“All papers submitted by the Petitioner in supporting this application to assist the Bench is returned to the Petitioner and those papers shall not form a part of record in this case.

The record consists only of the Petition and the amended petition filed by the Petitioner and no other material is to be considered as a part of the record.”

As evidenced by the Minutes of Justice K. Sripavan he had precluded my Application being heard. He had proceeded to interpret Article 80(3) of the Constitution, regardless of Your Honour’s Ruling made previously on 9th October 2012. He had done so sitting alone in his Chambers, whereas  interpretation of the Constitution, which is a matter of general and public importance, in terms of Articles 129 and 132 have to be by a Bench of 5 or more Judges of the Supreme Court, as had been the practice.

A 3 Judge Bench presided by Justices N.G. Amaratunga issued Notice on the Respondents on 25th November 2011 in a Fundamental Rights Application I had made impugning the Special Determination of 24th October 2011 made by the Chief Justice, without jurisdiction and ultra-vires Article 123 (3) of the Constitution, and the hearing into which was manipulatively ‘scuttled’ by the Chief Justice, in the face of averments made against her, and I believe also due to ‘extraneous’ reasons.

Whilst having minuted that my aforesaid Application made in the public interest on a matter of general and public importance ‘not only impeded the due administration of justice, but also undermines the work of Court’, the calamity created with several litigations concerning the personal interest of the Chief Justice and the expeditious hearing thereof had apparently been of no concern to Justice K. Sripavan.

The Chief Justice had endorsed the Minutes of Justice K. Sripavan, and so had Justices N.G. Amaratunga, P.A. Rathnayake and Chandra Ekanayake, whereby the said Justices had prejudicially prejudged the charges made against the Chief Justice, even without having heard me, and thus they stood disqualified from hearing any matter that concerned the Chief Justice.

The matter of interpretation of Article 107(3) of the Constitution had been referred to the Supreme Court by the Court of Appeal in terms of Article 125 of the Constitution, on which the aforementioned Order dated 1st January 2013 of the Supreme Court was delivered through the Court of Appeal on 3rd January 2013. The said reference had been made arising from 7 Writ Applications made against the impeachment of the Chief Justice, making the Members of the Parliamentary Select Committee, appointed by Your Honour, as Respondents.

Since the aforesaid Writ Applications concerned the impeachment of the Chief Justice, the Chief Justice and the other aforementioned Justices were disqualified from having dealt with the said matter in the Supreme Court. Nevertheless a Bench comprising Justices N.G. Amaratugna, K. Sripavan and Priyasath Dep, presumably nominated by the Chief Justice, had made the aforementioned Order interpreting Article 107(3) of the Constitution.

It is of significance that at paragraph 2 of page 5 of the aforementioned Supreme Court Order of 1st January 2013 it recorded thus – ‘The Court specifically inquired from all parties including those who sought to intervene whether anyone has any objection to this Bench hearing this references, but there was no objection by any party, including those who sought intervention’. The parties before Court were unaware of the aforesaid disqualification, and in any case, such disqualification could not be so cured, but stood.

Though it was a 27 page Order, the crux of the Order are in the last paragraph on page 23 going on to page 24, and paragraph 2 on page 26 viz:

“In a State ruled by a Constitution based on the rule of Law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such court, tribunal or body has the power conferred on it by law to make such finding or decision. Such legal power can be conferred on such court, tribunal or body only by an Act of Parliament which is “law” and not by Standing Orders which are not law but are rules made for the regulation of the orderly conduct and the affairs of the Parliament. The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by “law” “

“In view of the reasons we have set out above we answer the question referred to us, as set out at the beginning of this Order, as follows:”

“It is mandatory under Article 107(3) of the Constitution for the Parliament to provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof. Burden of proof and the standard of proof of any alleged misbehaviour or incapacity and the Judge’s right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehaviour or incapacity” (Emphasis added)

For easy reference of Your Honour, set out below are Articles 4(c) and 107(3) of the Constitution, and the Interpretation Article 170 of the Constitution defining ‘law’ to mean any Act of Parliament. (Emphasis added)

“4.  The Sovereignty of the People shall be exercised and enjoyed in the following manner :-

(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; ”

“107.  (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 such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such Judge to appear and to be heard in person or by representative.”

“170. In the Constitution –

“law” means any Act of Parliament and any law enacted by any legislature at any time prior to the commencement of the Constitution and includes an Order in Council;

By the foregoing interpretation by the 3 Judge Bench of the Supreme Court, the said Bench had expunged and/or suspended from the Constitution the words ‘or by Standing Orders’, which the Supreme Court had no constitutional authority or fiat  to do,  nor even the Parliament. This is a prohibition in terms of Article 75 of the Constitution, as per the Special Determination in October 2002 made by a 7 Judge Bench of the Supreme Court on the aborted 19th Amendment to the Constitution viz: Article 75 (Emphasis added)

“75.     Parliament shall have power to make, laws, including laws having retrospective effect and repealing or amending any provision of the Constitution, or adding any provision to the Constitution :

Provided that Parliament shall not make any law

(a)   suspending the operation of the Constitution or any part thereof, or

(b)   repealing the Constitution as a whole unless such law also enacts a new Constitution to replace it ”

Furthermore, as to how it is ‘mandatoryunder Article 107(3) of the Constitution for the Parliament to provide by ‘law’ …..,  as interpreted by the said 3 Judge Bench of the Supreme Court, defies the independence of the Legislature, which cannot be mandated except by the Constitution or by the People at a Referendum, whereas the Constitution has specifically stipulated the words by law or by Standing Orders.

Such interpretation had been made stipulating as ‘mandatory’ one limb of the Constitution, whilst ignoring the other optional limb, on the contrary my aforesaid Application made on 18th October 2012 on the matter of the Supreme Court having acted without jurisdiction, ultra-vires Article 123(3) of the Constitution had not even been heard, but suppressed as revealed by the aforesaid Supreme Court Minutes made by the Supreme Court.

Your Honour’s attention is specifically drawn to Article 140 of the Constitution, which empowers the Court of Appeal to issue Writs. (Emphasis added)

“140. Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect 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:

Provided that Parliament may by law provide that in any such category of cases as may be specified in such law, the jurisdiction conferred on the Court of Appeal by the preceding provisions of this Article shall be exercised by the Supreme Court and not by the Court of Appeal ”

In  the context of the aforesaid interpretation by the 3 Judge Bench of the Supreme Court on a reference on a matter, arising out of Writ Applications against Members of the Parliamentary Select Committee appointed by Your Honour, attention is drawn to the words ‘according to law’ in Article 140 of the Constitution. There is no Act of Parliament enacted empowering the Court of Appeal to issue Writs, which the 3 Judge Bench of the Supreme Court had curiously failed to take cognisance of.

In such circumstances, the Court of Appeal over the years had adopted the application of the Common Law in UK for the issuance of Writs in Sri Lanka. Is such Court of Appeal ‘decided practice’ thus deemed to be ‘superior’, than even the Standing Orders made by Parliament as stipulated in the Constitution ? Under the Common Law of UK, no Writs or Orders, whatsoever are issued against the House of Commons, its Committees or the Speaker. Hence, the same should apply in Sri Lanka in the circumstances of adopting the Common Law of UK.

In the Writ Application filed by the Chief Justice, Notices had been issued on Your Honour and the Members of the Parliamentary Select Committee by the Court of Appeal, citing the case of Mark Antony Lyster Bracegirdle 39 NLR 193 @ 205, which is on an issuance of a Writ against the then Governor, who was exercising executive power, and not against the Parliament i.e. the House of Commons of UK. The Court of Appeal has failed to recognise the difference between the executive and the legislature.

Cited below are Articles 129 and 132 of the Constitution. (Emphasis added)

“129.  (1)   If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon.

(2)     Where the Speaker refers to the Supreme Court for inquiry and report all or any of the allegation or allegations, as the case may be, contained in any such resolution as is referred to in Article 38 (2) (a), the Supreme Court shall in accordance with Article 38 (2) (d) inquire into such allegation or allegations and shall report its determination to the Speaker within two months of the date of reference.

(3)   Such opinion, determination and report shall be expressed after consideration by at least five Judges of the Supreme Court, of whom, unless he otherwise directs, the Chief Justice shall be one.

(4)   Every proceeding under paragraph (1) of this Article shall be held in private unless the Court for special reasons otherwise directs. “

“132.  (1)   The several jurisdictions of the Supreme Court shall be ordinarily exercised at Colombo unless the Chief Justice otherwise directs.

(2)   The jurisdiction of the Supreme Court may be exercised in different matters at the same time by the several Judges of that Court sitting apart:

Provided that its jurisdiction shall, subject to the provisions of the Constitution, be ordinarily exercised at all times by not less than three Judges of the Court sitting together as the Supreme Court.

(3)   The Chief Justice may –

(i)    of his own motion ; or

(ii)   at the request of two or more Judges hearing any matter; or

(iii) on the application of a party to any appeal,

proceeding or matter if the question involved is in the opinion of the Chief Justice one of general and public importance, direct that such appeal, proceeding or matter be heard by a Bench comprising five or more Judges of the Supreme Court.

(4)   The judgment of the Supreme Court shall, when it is not an unanimous decision, be the decision of the majority. ”

It would be noted that as per Article 129, an Opinion on a Law requested by the President of the Republic has to be after consideration by at least 5 Judges of the Supreme Court. The Constitution is the supreme law of the country, and hence a Bench of 5 or more Judges of the Supreme Court should make constitutional interpretations, and not a Bench of 3 Judges, and in any case 2 of whom stood disqualified from hearing such matter; and thus and thereby the said interpretation is questionable, and its standing would be in issue; moreso in the context of being in relation to Writ Applications against the Hon. Speaker and Members of a Parliamentary Select Committee, as dealt with hereinbefore in reference to Article 140 of the Constitution.

Yours respectfully,

Nihal Sri Ameresekere

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