SC throws down the gauntlet

Friday, 4 January 2013 03:52 -     - {{hitsCtrl.values.hits}}

  •  Rules that PSC has no legal authority to investigate a judge
  • Court of Appeal declares impeachment proceedings are void
  • CoA to hear writ applications and CJ’s petition on January 15

By Dharisha Bastians

In a historic and unprecedented judgment the Supreme Court of Sri Lanka as the sole interpreter of the Constitution ruled that the Parliamentary Select Committee has no basis in law.

In a ruling delivered to the Court of Appeal dated 1 January 2013, a three judge bench of the Supreme Court led by Justice N.G. Amaratunge, and including Justices K. Sripavan and Priyasath Dep said that the PSC had no legal authority to make a final order adversely affecting the legal rights of a Judge of the Supreme Court or Court of Appeal.

The Supreme Court ruling was delivered to a packed courtroom No. 301 by the a three judge bench of the Court of Appeal led by Appeals Court President S. Skandarajah and Justices Anil Gooneratne and A.W.A. Salaam.

In light of the Supreme Court ruling, the Court of Appeal issued notice to the Parliamentary Select Committee on the basis that the impeachment proceedings against Chief Justice Shirani Bandaranayake were prima facie void.

Seven writ applications challenging the legality of the Parliamentary Select Committee set up to probe the impeachment motion were referred to the Supreme Court for a constitutional interpretation. The writ applications and the Chief Justice’s own writ applications will be taken up by the Court of Appeal on January 15.

In its ruling, the Supreme Court has determined that a Standing Order of Parliament is not a law as defined by Article 170 of the Constitution.

The Speaker constituted the PSC to investigate the impeachment motion under Standing Order 78A. “In a state ruled by a constitution, based on the rule of law no court, tribunal or other body...has the authority to make a finding affecting the rights of a person unless the court tribunal or body has the power conferred on it by law,” the ruling says.

Many lawyers and UNP MPs, Karu Jayasuriya, Ruwan Wijewardane, Eran Wickremaratne, Dayasiri Jayasekera and Ajith Perera were present in court when the Supreme Court ruling was delivered yesterday.

In its ruling the Supreme Court noted the fact that it was dealing with a sensitive issue which concerns judges of the Supreme Court and the Court of Appeal and said they maintained “detached objectivity”.

“The reference to this court involves a matter which concerns the judges of the Supreme Court and the Court of Appeal. In dealing with the question we therefore kept in mind that the objectivity of our approach itself may incidentally be in issue. It is therefore in a spirit of detached objective inquiry, which is a distinguishing feature of judicial process that we attempted to find an answer to the question referred to us. We have performed our duty faithfully, bearing in mind the oath of office we have taken when we assumed the judicial office which we hold,” the SC ruling states.

The Supreme Court ruling added:

“The power of removal of the judges of the supreme court and the court of appeal, conferred on the president upon an address of parliament is a check provided by the Constitution, to sustain the balance of power between the three organs of the Government. As pointed out in the determination of the divisional bench of seven judges presided by S.N. Silva CJ, this check has not been included in the constitution “to resolve conflicts that may arise between the custodians of power or for one to tame and vanquish the other”, but only as a check to be exercised where necessary in trust for the people,” the ruling said.

The Government is yet to react to the Supreme Court ruling but Cabinet Spokesman Keheliya Rambukwella told the Reuters News Agency that the Speaker of Parliament would ‘decide on the latest move by the judiciary’.