Supreme Court probes scope of PSC

Grants leave to proceed with three FR petitions against Parliament Standing Orders

The petitioners argued that the move to impeach the Chief Justice acting under Standing Order 78 A violates the fundamental rights of the citizens

The Supreme Court yesterday granted leave to proceed with three petitions filed by an artist, trade unionist and a lawyer challenging the legality of the Parliamentary Standing order under which Chief Justice Shirani Bandaranayake is being impeached by a Parliamentary Select Committee (PSC).

The petitioners argued that the move to impeach the Chief Jus- tice acting under Standing Order 78 A violates the fundamental rights of citizens. They sought a declaration from Court that Parliament Standing Order 78 A is beyond the legal authority of the Constitution and is null and void and has no force or effect in law.

Therefore Articles 107 read with Article 4(C) would necessarily require that the Standing Orders or law(s) to be passed in terms of Article 107(3) must be passed or adopted in a manner consistent with Article 4(C), they maintain.

The Bench comprising Justices N.G. Amaratunga, K. Sripavan and Priyasath Dep also granted leave to proceed with the three petitions against the alleged violation of the fundamental right to equality and equal protection of the law.

The respondents have been asked to file objections within four weeks and the counter affidavits by the petitioners are to be filed within two weeks thereafter. The hearing was fixed for January 21.

While supporting the applications, the Supreme Court bench queried the representative of the Attorney General whether the Standing Order 78A amounts to a law or not.

The Supreme Court bench made this inquiry when counsel Viran Corea submitted that the Standing Orders clearly do not constitute legislative powers. “Standing order is not legislative and therefore administrative in nature and provides how parliament conducts its affairs within the House,” counsel Corea argued.

In response the AG stated that the Standing Orders were part of law and they were made in parliament.

However the Bench made to read out the Constitution interpretation of the law under article 170 of the Constitution which states “law’ means any Act of Parliament.”

Thereafter the court inquired whether the Standing Orders are passed by the Parliament and therefore whether they could be categorised as laws or not.

The petitioners are -- Ceylon Teachers’ Services Union General Secretary Mahinda Jayasinghe; Athula Chandragupta Thenuwara and Inter Companies Employees’ Union General Secretary Janaka Adhikari.

In their separate petitions the petitioners cited as respondents Speaker Chamal Rajapaksa, PSC members Anura Priyadarshana Yapa, Nimal Siripala de Silva, Susil Premajayantha, Rajitha Senaratne, Wimal Weerawansa, Dilan Perera, Neomal Perera, Lakshman Kiriella, John Amaratunga, R. Sampanthan and Vijitha Herath and the Attorney General.

M.A. Sumanthiran appeared for Mahinda Jayasinghe. Suren Fernando appeared for Mr. Thenuwara while Viran Corea appeared for Janaka Adhikari.

Deputy Solicitors General Shavendra Fernando, Sanjay Rajaratnam and Janaka de Silva and Senior State Counsel Nerin Pulle appeared for the Attorney General.

Petitioners filed their applications in their own right and in the public interest with the object of safeguarding the rights and interests of the people and securing due respect, regard for and adherence to the Rule of Law and the Constitution, which is the supreme law of the land. They state that the Article 107(3) of the Constitu

tion pro- vides that, 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 misbehaviour or incapacity and the right of such a judge to appear and to be heard in person or by a representative.

They state that Article 4 (C) of the Constitution provides that the sovereignty of the people shall be exercised and enjoyed in the following manner – people’s judicial power 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 legislative power of the people may be exercised directly by Parliament according to law.

They state that the Article 3 which is an entrenched provision, recognizes that the sovereignty of the people is with the people and inalienable.

Therefore Articles 107 read with Article 4(C) would necessarily require that the Standing Orders or law(s) to be passed in terms of Article 107(3) must be passed or adopted in a manner consistent with Article 4(C), they maintain.

They say that Standing Order 78A is also contrary to and inconsistent with Articles 13(5) and 107 in as much as it seeks to negate the presumption of innocence and place a burden on the accused judge to prove innocence.

The charges brought against the Chief Justice have been brought by Members of Parliament and the Speaker has purported to appoint other Members of Parliament to inquire (and exercise judicial or quasi-judicial powers) with regard to the said charges. Therefore there is a clear violation of Articles 4(c) and 3 of the Constitution in as much as the Speaker by his administrative and or executive act in appointing the 2nd to 12th respondents to inquire into same, is purporting to grant them judicial or quasi-judicial powers, in contravention of Article 4(C) which requires that such powers be exercises by Courts, Tribunals and institutions created by the Constitution or law.

They state that the maintenance of the independence of the judiciary and ensuring that impeachment mechanisms are such that they leave no room for suspicion or fear that a judge may be victimized for delivering judgments against the executive and or legislative is essential.

A judiciary under threat by the legislature that may remove such judges by an unconditional and or biased process may be deterred from entering judgments against an Executive and or Legislature.

They are seeking among others a declaration that the Standing Order 78A is beyond the legal authority of the Constitution and is null and void and of no force or effect in law and a declaration that the purported appointment of the said respondents to the PSC is therefore null and void and of no force or effect in law.

They are asking an Order restraining the Speaker and the members of the PSC from acting in furtherance of Standing Order 78A with regard to the charges against the Chief Justice.