CJ creates history in major fight back

By Dharisha Bastians

In an unprecedented move, the incumbent Chief Justice Shirani Bandaranayake fought back against the Parliamentary Select Committee Report that found her guilty on three charges by filing a writ application against the findings at the Court of Appeal yesterday.

The petition argues that the findings of the PSC were subject to judicial review as per a report submitted by the Government to the Human Rights Committee, which monitors states’ implementation of the International Covenant on Civil and Political Rights (ICCPR).

The application states that a Sri Lankan Government delegation headed by then Permanent Representative to the UN, Prasad Kariyawasam and including then Solicitor General C.R. De Silva provided this undertaking in response to concerns raised by the Committee regarding the impeachment process for judges as set out in the Sri Lankan constitution being incompatible with “the scope and spirit of Article 14” of ICCPR, since it would compromise the independence of the judiciary.





Article 14 of ICCPR pertains to the equality of all persons before courts and tribunals.

The petition will be taken up for support before a three judge appeals court bench comprising President of the Court of Appeal, S. Skandarajah and Justices Anil Gooneratne and A.W.A. Salaam.

The writs of certiorari and probation seek to quash the findings of the PSC and to prohibit further action being taken by the Speaker with regard to the impeachment.

Speaker Chamal Rajapaksa has been cited as first respondent in the application. Respondents 2-8 are the seven Government members on the PSC and respondents 9-12 cited in the petition are the four opposition members on the Committee. The petition cites the Secretary General of Parliament as the 13th respondent.

Neelakandan and Neelakandan filed the application on behalf Chief Justice Bandaranayake. The petition will be supported by Romesh De Silva PC, and assisted by Nalin Ladduwahetty PC and Attorneys at Law Saliya Pieris, Sugath Caldera, Riad Ameen, Buddhika Illangetilake, Manjuka Fernandopulle, Shanaka Cooray and Eraj De Silva.

The writ application also seeks an interim order preventing the Speaker of Parliament from taking any further action with regard to the PSC report until the hearing and determination of the petition is concluded in the Court of Appeal.

The detailed petition goes into each of the three charges upon which the Chief Justice has been found guilty by the PSC and seeks to provide counter-evidence to disprove the committee’s findings, including bank documents. In her application the Chief Justice state that “the said purported finding of guilt of the Petitioner by the 2nd to 8th Respondents of charges 1, 4 and 5 is wrongful, unlawful, against the weight of the evidence and without any legal or factual basis.”

The petition argues that the Government of Sri Lanka in a periodic report to the Human Rights Committee states that: “As stated above 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. Thus, it is envisaged that if the inquiring committee were to misdirect itself in or breached the rules of natural justice its decisions could be subject to judicial review.”

Under the circumstances, the petitioner argues that the Government of Sri Lanka has represented that the select committee appointed under Standing Order 78A would attract judicial scrutiny. It states that therefore respondents to the case cannot deny that the decisions of the Select Committee are subject to judicial review and that the respondents are not bound by the judgments of competent courts exercising judicial review in this regard.