APPEAL COURT WARNS AGAINST ‘CHAOTIC SITUATION’

Notices issued on Speaker and others as legal obligation Asserts the power of court in judicial review Asks relevant authorities not to act until application is heard and concluded Warns that any decision to disregard court proceedings may lead to chao

The Court of Appeal while observing that the executive and the legislature cannot take away the court’s constitutional power of ‘judicial review,’ yesterday cautioned the ‘relevant authorities’ from acting in derogation of the rights of the petitioner Chief Justice Shirani Bandaranayake disregarding the court proceedings as it may lead to a ‘chaotic situation.’

Justice S. Sriskandarajah (President) with Justices Anil Gooner-

The relevant authorities should advise themselves not to act in derogation of the rights of the petitioner

atne and A.W.A. Salam made these observations while delivering the order regarding the writ petition filed by Chief Justice Shirani Bandaranayake challenging the findings of the Parliamentary Select Committee (PSC) against her.

The Court observed that whether the PSC had the power and authority to act in the manner it had acted or whether it had exceeded its power or has failed to act judicially in arriving at its findings were matters subject to judicial review under Article 140 of the Constitution.

“Therefore the relevant authorities should advise themselves not to act in derogation of the rights of the petitioner until this application is heard and concluded, since any decision disregarding these proceedings to alter the status quo may lead to a chaotic situation,” the Appeal Court said in delivering its order.

The Appeal Court said it was aware of the ruling by the Speaker on the notice issued by the court (in relation to another application pending in the Appeal Court). This notice was issued on the Speaker and PSC Members appointed by him, but the Speaker declared that the notice issued on him and the PSC Members was a nullity and entailed no legal consequences.

On this ruling of the Speaker, the Appeal Court said yesterday the order to issue notice on the respondents cited in this application was

Therefore the relevant authorities should advise themselves not to act in derogation of the rights of the petitioner until this application is heard and concluded

a legal obligation on the part of the Court to afford the respondents an opportunity of being heard, thus adhering to the concept of hearing the other side.

The Court issued notices returnable for January 3 on the respondents – the Speaker, the PSC Members and the Secretary General of Parliament – as the petitioner had established a prima facie case for consideration.

The Court said it was of the view that any steps taken in furtherance of the findings or the decision contained in the Report of the (UPFA) Members of the PSC would be void if this Court after the hearing of this application issued a Writ of Certiorari to quash the findings or the decision of the PSC.

The Court noted that the PSC in considering the charges against the petitioner was not exercising its legislative power but was exercising powers of a judicial nature. Whether it could exercise judicial power against a person who is not a Member of Parliament is a question that will be determined in another application pending before the Appeal Court.

The Court noted that the PSC appointed by the Speaker had exercised powers of a judicial nature in finding that the 1st, 4th and 5th charges against the petitioner had been proved.

Whether the PSC has the power and authority to act in the manner it has acted or whether it has exceeded its power or has failed to act judicially in arriving at its finding are matters subject to judicial review under Article 140 of the Constitution, the Court observed.

It also observed that the power of the Court of Appeal

The power of the Court of Appeal to exercise judicial review on findings by a person or a body exercising authority, provided by the Constitution is wide. Therefore this power could not be abdicated by the other arms of the government namely the Legislature or the Executive

to exercise judicial review on findings by a person or a body exercising authority, provided by the Constitution is wide. Therefore this power could not be abdicated by the other arms of the government namely the Legislature or the Executive.

The PSC found the Chief Justice Shirani A. Bandaranayake guilty of three charges in an impeachment motion against her.

The CJ in her writ petition complained that the functioning of the seven government MPs, following the withdrawal of the four opposition MPs from the PSC was unlawful, ultra vires the parliament Standing Orders.

She is seeking the Court to issue a Writ of Certiorari to quash the findings of the PSC and to restrain the seven PSC members from taking any further steps pertaining to the report submitted by that group of government MPs.

She cited Speaker Chamal Rajapaksa, PSC Members Anura Priyadarshana Yapa, Nimal Siripala de Silva, Susil Premajayantha, Rajitha Senaratne, Wimal Weerawansa, Dilan Perera and Neomal Perera, Lakshman Kiriella, John Amaratunga, R. Sampanthan and Vijitha Herath and Parliament Secretary General W.B.D. Dassanayake as the respondents. Romesh de Silva PC with Nalin Ladduwahetty PC, Saliya Peiris, Sugath Caldera, Riad Ameen, Buddhika Illangatilake, Manjula Fernandopulle, Shanaka Cooray, Eraj de Silva and Vasantha Kumar Niles appeared for the CJ.