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Full Text of Chandra Jayaratne Petition Against Impeachment of Chief Justice:

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Full Text of Chandra Jayaratne Petition Against Impeachment of Chief Justice:
21 November 2012, 3:23 pm
IN THE COURT OF APPEAL OF THE
DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an application for a Writ of Prohibition under and in terms of Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Chandra Jayaratne,

2, Greenlands Avenue,

Colombo 5.

Petitioner

Case No: CA/WRIT/ /2012

v.

1. Hon. Anura Priyadarshana Yapa, MP

Eeriyagolla,

Yakawita.

2. Hon. Nimal Siripala de Silva, MP

93/20, Elvitigala Mawatha,

Colombo 08.

3. Hon. A. D. Susil Premajayantha, MP

123/1, Station Road,

Gangodawila,

Nugegoda.

4. Hon. Dr. Rajitha Senaratne, MP

CD 85, Gregory’s Road,

Colombo 07.

5. Hon. Wimal Weerawansa, MP

18, Rodney Place,

Cotta Road,

Colombo 08.

6. Hon. Dilan Perera, MP

30, Bandaranayake Mawatha,

7. Hon. Neomal Perera, MP

3/3, Rockwood Place,

Colombo 07.

8. Hon. Lakshman Kiriella, MP

121/1, Pahalawela Road,

Palawatta,

Battaramulla.

9. Hon. John Amaratunga, MP

88, Negombo Road,

10. Hon. Rajavarothiam Sampathan, MP

2D, Summit Flats,

Keppitipola Road,

Colombo 5.

11. Hon. Vijitha Herath, MP

44/3, Medawaththa Road, Mudungoda, Miriswaththa,

Gampaha.

Respondents

On this … day of November 2012.

TO HIS LORDSHIP THE PRESIDENT AND OTHER HONOURABLE JUDGES OF THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

The Petition of the Petitioner above named, appearing by Mrs. Lilanthi de Silva his Registered Attorneys at Law states as follows.

1. The Petitioner is a Citizen of Sri Lanka and is by profession a qualified Chartered Accountant and presents this Petition as a citizen of Sri Lanka and in the public interest.

2.

a. The Petitioner states that;

i. the 1st Respondent is a Member of Parliament for the Kurunegala District representing the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of Environment.

ii. the 2nd Respondent is a Member of Parliament for the Badulla District representing the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of Irrigation and Water Resources Management and is the leader of the House of the Parliament.

iii. the 3rd Respondent is a Member of Parliament for the Colombo District representing the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of Petroleum Industries.

iv. the 4th Respondent is a Member of Parliament for the Kalutara District representing the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of Fisheries and Aquatic Resources Development.

v. the 5th Respondent is a Member of Parliament for the Colombo District representing the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of Construction, Engineering Services, Housing and Common Amenities.

vi. the 6th Respondent is a Member of Parliament for the Badulla District representing the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of Foreign Employment Promotion and Welfare.

vii. the 7th Respondent is a Member of Parliament for the Puttlam District representing the United People’s Freedom Alliance and the Deputy Minister of External Affairs.

viii. the 8th Respondent is a Member of Parliament for the Kandy District representing the United National Party.

ix. the 9th Respondent is a Member of Parliament for the Gampaha District representing the United National Party.

x. the 10th Respondent is a Member of Parliament for the Trincomalee District representing the Illankai Tamil Arasu Kadchi.

xi. the 11th Respondent is a Member of Parliament for the Gampaha District representing the Democratic National Alliance.

b. The Petitioner states that the aforesaid 1st to 11th Respondents have been appointed by the Hon. Speaker of the Parliament to a Select Committee under Standing Order 78A of the Parliament to investigate into alleged acts of misconduct or incapacity of Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of Sri Lanka, as morefully set forth hereinafter.

The Constitution of the Democratic Socialist Republic of Sri Lanka

3. The Petitioner respectfully states that

a. the Constitution of the Republic of Sri Lanka is the Supreme Law of the Democratic Socialist Republic of Sri Lanka;

b. the Constitution in Article 3 proclaims that “In the Republic of Sri Lanka the sovereignty, is in the people and is inalienable. Sovereignty includes powers of government, fundamental rights and the franchise.”

c. all state authority flows from the Constitution which establishes the organs of the government, namely,

i. the Parliament exercising the legislative power of the People;

ii. the President of the Republic exercising the executive power of the People; and

iii. the Judiciary exercising the judicial power of the People.

4. The Petitioner respectfully states that in the circumstances

a. the Parliament is not sovereign or supreme in the Democratic Socialist Republic of Sri Lanka and derives its authority and powers from the Constitution, which is the Supreme Law of the Democratic Socialist Republic of Sri Lanka;

b. the Parliament is therefore bound by the limitations and restrictions imposed upon it by the Constitution.

Judicial Power of the People

5. The Petitioner states that the courts, tribunals and institutions created and established or recognized by the Constitution or created and established by law for the purpose of administration of justice protect, vindicate and enforce the rights of the People and Article 4 of the Constitution proclaims the manner in which the sovereignty of the People is exercised and enjoyed. Article 4(c) provides that:

“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.”

6. The Petitioner states that in terms of Article 3 of the Constitution the sovereignty of the People is inalienable and hence the transfer of a power which is attributed by the Constitution to one organ of the State to another or the relinquishment or removal of such power would be an alienation of the sovereignty inconsistent with Article 3 read with Article 4 of the Constitution. Such alienation is prohibited as it is unconstitutional.

Independence of the Judiciary

7. The Petitioner states that the independence of the judiciary is recognized and preserved by the Constitution which declares, inter alia, that:

a. the judges of the Supreme Court and the Court of Appeal shall hold office during good behavior;

b. the judges of the Supreme Court and the Court of Appeal shall not be removed except by an order of the President made after an address of Parliament supported by a majority of the total Members of Parliament (including those not present);

c. the salary payable to, and the pension entitlement of , a Judge of the Supreme Court and a Judge of the Court of Appeal shall not be reduced after his appointment;

d. every judge or other person entrusted by law with judicial powers or functions shall exercise and perform such powers and functions without being subject to any direction or other interference from any other person except a superior court, tribunal, institution or other person entitled under law to direct or supervise exercise or performance of such powers or functions;

e. the power to appoint, transfer, exercise disciplinary control and dismissal of the Judges of the Inferior Courts, is vested with the Judicial Service Commission comprising the Chief Justice and two other judges of the Supreme Court;

f. every person who, without legal authority, interferes or attempts to interfere with the exercise or performance any Judicial function, shall be guilty of an offence.

8. The Petitioner states that the said provisions of the Constitution are intended to ensure the independence of the Judiciary and that judicial powers and functions are exercised and performed without any fear or favour and free from unlawful interference.

Resolution for the removal of the Chief Justice

9. The Petitioner states that in terms of Article 107(2) of the Constitution, The Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and the Court of Appeal shall hold office during good behaviour and shall not be removed except by an order of the President made after an address of Parliament supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehavior or incapacity.

10. The Petitioner states that on or about 1st November 2012, a resolution as per Article 107(2) of the Constitution signed by 117 Members of Parliament was handed over to the Hon. Speaker of the Parliament seeking inter alia the impeachment of Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of Sri Lanka on the alleged grounds of misbehavior and/or incapacity. The Petitioner states that, Hon. Y. G. Padmasiri, Member of Parliament for Kegalla District representing the United People’s Freedom Alliance subsequently announced that he is withdrawing his signature from the said Resolution.

11. The Petitioner states that, on or about 6th November 2012, the Hon. Speaker of the Parliament caused the said Resolution to be published in the Order Paper of the Parliament of Sri Lanka, in terms of Article 107(2) of the Constitution.

A true copy of the relevant Order Paper of Parliament dated 6th November 2012 containing the Resolution as per Article 107(2) of the Constitution, as made publicly available on the official website of the Parliament of Sri Lanka at www.parliament.lk is annexed hereto marked as “X1” and pleaded as part and parcel of this Petition.

12. The Petitioner states that it was further announced that a Select Committee comprising of 11 Members of Parliament shall be appointed in accordance with Standing Order 78A of the Parliament of Sri Lanka to investigate into allegations as set forth in the said Resolution.

Standing Orders

13. The Petitioner states that Standing Orders are written rules under which Parliament conducts its business. They regulate the way Members behave, bills are processed and debates organized.

14. The Petitioner states that Article 74(1) of the Constitution provides, inter alia, that “Subject to the provisions of the Constitution, Parliament may by Resolution or Standing Order provide for –

(i). the election and retirement of the Speaker, the Deputy Speaker, and the Deputy Chairman of Committees, and

(ii) the regulation of its business, the preservation of order at its sittings and any other matter for which provision is required or authorized to be so made by the Constitution.”

15. The Petitioner states that Article 107(3) of the Constitution enacts, inter alia, 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 a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.”

16. The Petitioner states that in terms of Article 107(3) the Parliament has opted to provide for, by way of Standing Orders, the procedure for “the investigation and proof of the alleged misbehaviour or incapacity…” and not by Law.

A copy of the Standing Orders on “RULES OF DEBATE” inclusive of Standing Order 78A, as made publicly available on the official website of the Parliament of Sri Lanka at www.parliament.lk is annexed hereto marked as “X2” and is pleaded as part and parcel of this Petition.

The Select Committee

17. The Petitioner states that pursuant to the nominations made by the respective constituent parties of the Parliament, the following 11 members were appointed by the Hon. Speaker to the said Select Committee under Standing Order 78A of the Parliament.

a. the 1st to 7th Respondents representing the ruling United People’s Freedom Alliance;

b. the 8th and 9th Respondents representing the United National Party;

c. the 10th Respondent representing the Illankai Tamil Arasu Kachchi; and

d. the 11th Respondent representing the Democratic National Alliance.

and the 1st Respondent was later appointed by the Hon. Speaker as the Chairman of the said Select Committee.

A true copy of the relevant extract of the Hansard of 14th November 2012 is yet not available and the Petitioner seeks permission of Your Lordships’ Court to tender the same when made available.

18. The Petitioner further states that it is reported that the Select Committee having had a meeting on 14th November 2012, has required the Hon. Chief Justice to make a written statement of defense on or before 22nd November 2012, with intent to investigate and report on the allegations of misbehaviour or incapacity as set out in the Resolution marked “X1”.

19. The Petitioner states that Standing Order 78A of the Parliament provides, inter alia, that;

a. the judge against whom allegations are made is required to disprove such allegations.

b. the Select Committee report to the Parliament a finding of guilt of any of the charges against such judge.

Exercise of Judicial Power

20. The Petitioner states that the Select Committee appointed in terms of the aforesaid Standing Order 78A of the Parliament, has thus been empowered by the said Standing Order to exercise judicial power, in that the said Select Committee as per the said Standing Order 78A inter alia has the power to;

a. require such judge under ‘investigation’ to make a written statement in connection to the allegations;

b. to send for persons, papers and records;

c. to hear the judge under ‘investigation’ either in person or by representative;

d. to consider the oral and documentary evidence adduced by such judge;

e. decide and determine on the alleged charges against the judge including the power to make findings of guilt on any of the alleged charges against the judge; and

f. report the findings of the purported Select Committee to the Parliament including findings of guilt on the charges against the judge.

21. The Petitioner respectfully states that Article 4(c) of the Constitution of Sri Lanka enacts that the sovereignty of the people in relation to “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 judicial power of the People may be exercised directly by Parliament according to law.”

22. The Petitioner therefore states that in terms of Article 4(c) of the Constitution, the Parliament is empowered to exercise judicial powers only in respect of matters relating to the privileges, immunities and powers of Parliament and of its Members according to law. This it has done by the enactment of the Parliament (Powers and Privileges) Act No. 21 of 1953 as amended.

23. The Petitioner respectfully states that Standing Orders of Parliament are not law.

24. The Petitioner states that, the Select Committee appointed under Standing Order 78A of the Parliament is neither a ‘Court, tribunal or institution’ created and established, or recognized, by the Constitution, or created and established by Law as provided in Article 4(c) of the Constitution.

25. The Petitioner states that;

a. Standing Orders of Parliament are the agreed rules under which procedure, debate and the conduct of Members in the Parliament are regulated and the main purpose of the Standing Orders is to prescribe the procedure for the functioning of Parliament in an orderly and meaningful manner;

b. in the circumstances, the Parliament by Standing Order could only provide for matters relating to the procedure for the passing of a Resolution under Article 107(2) of the Constitution and the presentation of an Address by the Speaker to His Excellency the President for the removal of the Judge concerned; and

c. insofar as a finding of guilt and punishment therefor is concerned, it can only be provided by law, as the Parliament (Powers and Privileges) Act has in fact done in respect of powers and privileges of Parliament and its Members.

26. The Petitioner respectfully reiterates that;

a. in terms of Article 3 of the Constitution “In the Republic of Sri Lanka the sovereignty, is in the people and is inalienable. Sovereignty includes powers of government, fundamental rights and the franchise.”

b. Article 4 of the Constitution provides the manner in which the sovereignty of the people including powers of Government is exercised and enjoyed and in terms Article 4(c) of the Constitution “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.”

c. the transfer of a power which is attributed by the Constitution to one organ of the State to another or the relinquishment or removal of such power would be an alienation of the sovereignty inconsistent with Article 3 read with Article 4 of the Constitution and is therefore unconstitutional.

27. The Petitioner, in the circumstances states that the exercise by the Select Committee appointed under Standing Order 78A of the Parliament of the power to investigate and come to a finding of guilt or otherwise on any one or more of the allegations set out in the Resolution marked “X1” hereto contravene the provisions of Article 4(c) of the Constitution, amounting to an usurpation and/or arrogation of the Judicial Power of the People and ultra vires the Constitution of Sri Lanka.

28. The Petitioner respectfully further states that;

a. the Parliament (Powers and Privileges) Act No. 21 of 1953 as amended affords no protection to the aforesaid unconstitutional and ultra vires acts of the 1st to 11th Respondents complained hereof;

b. the judiciary is the only Institution entrusted with the onerous task of keeping every organ of State within the limits of the law and thereby making the Rule of Law enshrined in the Constitution meaningful and effective.

29. The Petitioner respectfully states that irremediable mischief and irreparable damage would be caused to the independence and the integrity of the judiciary and to the institutions of justice if the 1st to 11th Respondents are not prohibited from proceeding with the investigation of the allegations set out in the Resolution marked “X1” insofar as it tantamounts, in the circumstances aforesaid, to the exercise of judicial power in violation of the provisions of Article 4(c) read together with Article 3 of the Constitution.

30. In the circumstance the Petitioner respectfully states that the Petitioner is entitled to seek;

a. a mandate in the nature of Writ of Prohibition, prohibiting the 1st to 11th Respondents from continuing the purported investigation into the allegations of misbehavior or incapacity alleged against Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of Sri Lanka as set out in Resolution marked “X1”.

b. an Interim Order restraining the 1st to 11th Respondents from continuing the purported investigation into the allegations of misbehavior or incapacity alleged against Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of Sri Lanka as set out in Resolution marked “X1” until the hearing and determination of this Application by Your Lordships’ Court.

31. The Petitioner states that the Petitioner has not previously invoked the jurisdiction of Your Lordships’ Court in respect of the subject matter of this Application.

32. An Affidavit of the Petitioner is appended hereto in support of the averments contained herein.

Wherefore the Petitioner pleads that Your Lordships’ Court be pleased to;

a. issue Notice on the Respondents.

b. grant a mandate in the nature of Writ of Prohibition, prohibiting the 1st to 11th Respondents from continuing the purported investigation into the allegations of misbehavior or incapacity alleged against Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of Sri Lanka as set out in Resolution marked “X1”.

c. grant an Interim Order restraining the 1st to 11th Respondents from continuing the purported investigation into the allegations of misbehavior or incapacity alleged against Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of Sri Lanka as set out in Resolution marked “X1” until the hearing and determination of this Application by Your Lordships’ Court.

d. grant Costs.

e. grant such other and further relief as Your Lordships’ Court may seem meet.

ATTORNEYS AT LAW FOR THE PETITIONER

Settled by:-

Buddhike Illangatillake Esqr.,

Attorney at Law

K. Kanag-Isvaran Esqr.,

President’s Counsel
– DBS

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