21 November 2012, 3:30 pm
IN THE COURT OF APPEAL OF THE
DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an application for a mandates in the nature of a Writs of Certiorari and Prohibition under and in terms of Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka.
Dr. Jayampathy Wickramaratne
President’s Counsel
231/12A, First Lane
Kalapaluwawa
Rajagiriya
C.A. Writ Application No: 361/2012
Petitioner
Vs
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 19th day of November 2012
TO: HONOURABLE 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 James Henry Paul Ratnayeke, Vijayalakshman Wanasundara Wijayatilake, Nilanthie Sonia Anne Pieris and Dinusha Savitrie Tilakaratne Mirihana Attorneys-at-Law of the Honourable Supreme Court of the Democratic Socialist Republic of Sri Lanka, carrying on business in Partnership under the name, style and firm of PAUL RATNAYEKE ASSOCIATES and their assistants Mahesha Alahakoon, Therese Melanie De Alwis, Hamaragoda Namali Daneesha Kuruppu, Kahandugoda Kankanamge Himali Indika Kahandugoda, Mahadeniya Gamage Chathuri Sachitra, Farzana Aniff, Liyana Gayathri Narmada Mendis, Tharini Prakarshi Dias Senerath Gunasekera, Peduru Hewa Kankanamge Bimba Devi Ranasinghe, Wickramaarachchi Abeysiriwardhana Adisha Kalpi Abeysiriwardhana and Hashini Epa, his Registered Attorneys-at-Law state as follows:-
1. The Petitioner is a citizen of Sri Lanka. The Petitioner was enrolled as an Attorney-at-Law of the Supreme Court of Sri Lanka on 25.08.1977 and is an active legal practitioner. He was appointed as a President’s Counsel in 2001. He is a member of the Bar Association of Sri Lanka and has held the positions of Assistant Secretary, Zonal Vice-President and Executive Committee member in the said Association.
The Curriculum Vitae of the Petitioner is produced marked P1 and is pleaded as part and parcel hereof.
2. The Petitioner has a special interest in constitutional law. The petitioner was awarded the degree of Doctor of Philosophy by the University of Peradeniya for his thesis titled “Fundamental Rights in Sri Lanka” in 1991. The petitioner has appeared in numerous cases of constitutional importance including
(i) The matter of the Eighteenth Amendment to the Constitution Bill, 2010;
(ii) The matter of the Eighteenth Amendment to the Constitution Bill, 2002;
(iii) The matter of the Nineteenth Amendment to the Constitution Bill, 2002; and
(iv) The matter of the Land Ownership Bill, 2003
3. The Petitioner has several publications related to constitutional law to his credit. Among them are:
a. ‘Devolution in the United Kingdom: Unitary in Theory, Otherwise in Practice’ Power Sharing: The International Experience (Institute for Constitutional Studies, Rajagiriya 2011)
b. ‘The Constitutional Framework’ and ‘Legal Issues’ Twenty Two Years of Devolution: An Evaluation of the Working of Provincial Councils in Sri Lanka (Institute for Constitutional Studies, Rajagiriya 2010)
c. ‘National Policy and Dual Responsibility- Two Critical Issues on Devolution’ 13th Amendment: Essays on Practice (Stamford Lake, Pannipitiya 2010)
d. ‘The Right to Life: Some Issues’ (2009) The Bar Association Law Journal Vol. 15 (Bar Association of Sri Lanka, Colombo 2009)
e. ‘The Executive Committee System and Multi-Party Cabinets: Power Sharing in the Regions’ The Draft Constitution of Sri Lanka, Critical Aspects (Law and Society Trust, Colombo 1998).
f. Fundamental Rights in Sri Lanka- Updated version of Ph.D. thesis (Navrang, New Delhi, 1996); Second edition (Stamford Lake Pannipitiya 2006).
g. ‘Public Law in the SAARC Region – Rays of Hope’ (1993) Bar Association Law Journal Vol. V, Part I.
h. ‘The Role of the Westminster Model in the Constitutions of the SAARC Region’ (1992) Sri Lanka Journal of International Law Vol.4.
i. ‘Equal Protection in Flux’ (1990) Central India Law Quarterly Vol. 3, 488.
4. The Petitioner served as Consultant in the Ministry of Justice and Constitutional Affairs from 1996 to 2000 and as Consultant (2001) and Senior Advisor (2004 and December 2005 to February 2008) in the Ministry of Constitutional Affairs. The Petitioner was a member of the team that drafted the Constitution of the Republic of Sri Lanka Bill, 2000.
5. The Petitioner states that the 1st to 11th Respondents are members of the Select Committee appointed to purportedly act under Standing Order 78A of the Standing Orders of Parliament in respect of the impeachment of the Chief Justice of Sri Lanka as more fully referred to hereinafter.
6. The Petitioner states that the subject matter of this application relates to certain steps intended to be taken by the 1st to 11th Respondents towards impeaching the Chief Justice of Sri Lanka purportedly acting in terms of Standing Order 78A.
7. The Petitioner states that the procedure laid down in Standing Order 78A for impeaching a judge has been purportedly adopted under Article 107(3) of the Constitution and the said Standing Order 78A is illegal and ultra vires the express provisions in the Constitution including Article 107(3) itself.
8. The Petitioner states that, quite apart from its legality, the procedure set out in Standing Order 78A for impeaching a judge is patently an unfair and unreasonable procedure and it lacks transparency and integrity.
9. The Petitioner states that the independence of the judiciary is explicitly recognized and preserved by the Constitution and the aforesaid procedure set out in Standing Order 78A is of grave concern to the citizenry and the legal profession since it impinges on the independence of the judiciary and the rule of law.
10. The Petitioner states that it is of paramount importance to the citizenry and the legal profession that the independence of the judiciary be safeguarded.
11. The Petitioner states that the purported steps being taken by the Respondents to impeach the Chief Justice by resorting to the aforesaid procedure in Standing Order 78A prejudicially affects the independence of the judiciary and it is detrimental to the interest of the legal profession and also the public interest.
12. The Petitioner states that, in fact, the Bar Association of Sri Lanka was deeply concerned with the aforesaid steps intended to be taken for the impeachment of the Chief Justice of Sri Lanka and it convened a Special General Meeting on 10/11/2012. The Petitioner states that, at the said Special General Meeting, a resolution was unanimously adopted wherein inter alia grave concern was expressed about the impeachment and independence of the judiciary and to adopt a transparent and accountable procedure with regard to the proceedings before it and to announce it before the proceedings are commenced and to urge the legislature to formulate an alternate acceptable constitutional mechanism for the removal of a judge of the Superior Court that will not undermine the authority, dignity and the independence of the judiciary.
A copy of the BASL resolution dated 10/11/2012 is annexed hereto marked P2 and is pleaded as part and parcel hereof.
13. The Petitioner states that, in the above circumstances, the Petitioner prefers this application in the public interest and also as a person aggrieved both as a citizen and as a member of the legal profession and the Petitioner pleads that in the totality of circumstances he has sufficient interest to prefer and maintain this Application.
14. The Petitioner states that on or about 1st November 2012 a purported resolution was signed by 118 Members of Parliament. The Petitioner states that it has been reported in the media that the signatures of the said 118 members have been obtained on a blank document and that its contents have been inserted later. The Petitioner states that thereafter on or about 6th November 2012 the said purported resolution was published in the Order Paper of the Parliament.
As evidence a copy of an extract from the order paper of Parliament is annexed hereto marked P3 and is pleaded as part and parcel hereof.
15. The Petitioner states that, upon the said purported Resolution being placed in the Order Paper of Parliament, a purported Select Committee comprising of the 1st to 11th Respondents were appointed in terms of Standing Order 78A referred to below.
A copy of a newspaper report referring to the said appointment is filed herewith marked P4 and pleaded as part and parcel hereof. The Petitioner reserves the right to file an extract of the records from Parliament in this regard no sooner a copy of the same is made available to the public.
16. The Petitioner states that several newspaper articles have also been published demonstrating reporting that the aforesaid impeachment is backed by the Government, which has a 2/3rd majority in Parliament, and the aforesaid impeachment already has the support of more than a majority in Parliament.
Due to the urgency of this Application, the Petitioner reserves the right to provide a consolidated set of the said newspaper reports by way of motion separately.
17. 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.”
18. The Petitioner states that the Parliament has not enacted any law in relation to the matters set out in Article 107(3).
19. The Petitioner states that instead a purported Standing Order i.e. Standing Order 78A has been enacted purportedly under Article 107(3). The said purported Standing Order 78A provides inter alia that;
(1) Notwithstanding anything to the contrary in the Standing Orders, where notice of a resolution for the presentation of an address to the President for the removal of a Judge from office is given to the Speaker in accordance with Article 107 of the Constitution, the Speaker shall entertain such resolution and place it on the Order Paper of Parliament but such resolution shall not be proceeded with until after the expiration of a period of one month from the date on which the Select Committee appointed under paragraph (2) of this Order has reported to Parliament.
(2) Where a resolution referred to the paragraph (1) of this Order is placed on the Order Paper of Parliament, the Speaker shall appoint a Select Committee of Parliament consisting of not less than seven members to investigate and report to Parliament on the allegations of misbehaviour or incapacity set out in such resolution.
(3) A Select Committee appointed under paragraph (2) of this Order shall transmit to the Judge whose alleged misbehaviour or incapacity is the subject of its investigation, a copy of the allegations of misbehaviour or incapacity made against such Judge and set out in the resolution in pursuance of which such Select Committee was appointed, and shall require such Judge to make a written statement of defence within such period as may be specified by it.
(4) The Select Committee appointed under paragraph (2) of this Order shall have power to send for persons, papers and records and not less than half the number of members of the Select Committee shall form the quorum.
(5) The Judge whose alleged misbehaviour or incapacity is the subject of the investigation by a Select Committee appointed under paragraph (2) of this Order shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce evidence, oral or documentary, in disproof of the allegations made against him.
(6) At the conclusion of the investigation made by it, a Select Committee appointed under paragraph (2) of this Order shall within one month from the commencement of the sittings of such Select Committee, report its findings together with the minutes of evidence taken before it to Parliament and may make a special report of any matters which it may think fit to bring to the notice of Parliament;
Provided however, if the Select Committee is unable to report its findings to Parliament within the time limit stipulated herein the Select Committee shall seek permission of Parliament for an extension of a further specified period of time giving reason therefor, and Parliament may grant such extension of time as it may consider necessary.
(7) Where a resolution for the presentation of an address to the President for the removal of a Judge from office on the ground of proved misbehaviour or incapacity is passed by Parliament, the Speaker shall present such address to the President on behalf of Parliament.
(8) All proceedings connected with the investigation by the Select Committee appointed under paragraph (3) of this Order shall not be made public unless and until a finding of guilt on any of the charges against such Judge is reported to Parliament by such Select Committee.
(9) In this Standing Order “Judge” means the Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal appointed by the President of the Republic by Warrant under his hand.
A copy of the said Standing Orders 78A thereof is marked as “P5” is annexed and pleaded as part and parcel hereof.
20. The Petitioner states that the said purported Standing Order 78A purportedly confers on the Select Committee the power to exercise judicial power in that the said purported Select Committee has been purportedly conferred the power to inter alia;
a. require such judge under investigation to make a written statement in connection to the allegations;
b. send for persons, papers and records;
c. hear the judge 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 together with minutes of Evidence taken.
21. The Petitioner, in the circumstances states that the functions and finding of the purported Select Committee purportedly in terms of the Standing Order 78A are judicial in nature and the 1st to 11th Respondents will be exercising judicial powers.
22. In the circumstances the Petitioner states that the Standing Order 78A is ultra vires Article 4(c) of the Constitution since Article 4 does not permit either Parliament or a Select Committee to exercise judicial powers in respect of impeachment of judges.
23. The Petitioner further states that;
(a) the purported Standing Order 78A(5) does no set out a procedure for “proof” of the “alleged misbehavior” as mandated by Article 107(3);
(b) instead Standing Order 78A(5) only sets out a procedure for a judge to produce evidence in “disproof” of the allegations in contravention of Article 107(3);
24. The Petitioner further states that Article 13(5) of the Constitution stipulates as follows:-
“(5) Every person shall be presumed innocent until he is proved guilty:
Provided that the burden of proving particular facts may, by law, be placed on an accused person.”
25. The Petitioner states that in terms of Article 13(5);
(a) a person is presumed innocent until he is proved guilty; and
(b) the general burden of disproving guilt cannot be cast on such person.
26. The Petitioner states that Standing Order 78A(5);
(a) is not consonant with the presumption in Article 13(5) that a judge is presumed innocent until he is proven guilty of the charges;
(b) does not provide for a procedure for proving guilt against a judge; and
(c) cast a general burden on a judge of disproving guilt; and
(d) obligates a judge to commence disproving guilt even before any evidence has been adduced to establish prima facie evidence of guilt.
27. In the aforesaid circumstances, the Petitioner states that the purported Standing Order 78A(5) is ultra vires Article 107(3) and/or Article 13(5) of the Constitution.
28. The Petitioner further states that the aforesaid Standing Order 78A is also contrary to Article 12(1) of the Constitution in as much as it;
(a) it does not provide for a fair hearing consistent with the rules of natural justice;
(b) the procedure stipulated therein does not contain adequate safeguards against arbitrary and capricious decisions/actions; and
(c) Standing Order 78A impinges on the rule of law.
29. The Petitioner states that the purported Select Committee intends to conduct an investigation and make a decision/determination/finding by resorting to the aforesaid procedure stipulated in the purported Standing Order 78A and any attempt to do so will be contrary to law, ultra vires, illegal and without jurisdiction.
30. In the above circumstances the Petitioner states that the Petitioner is entitled to mandates in the nature of Writs of certiorari and prohibition as prayed for herein.
31. The Petitioner states that irreparable loss and damage would be caused to the Petitioner as well to the citizenry and the country as a whole and to the legal profession and independence of Judiciary will be unfairly prejudiced and/or affected if the interim orders prayed for are not granted.
32. 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.
33. 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 and issue a writ of certiorari quashing the aforesaid Standing Order 78A and/or any part (s) thereof;
c. grant and issue a mandate in the nature of a Writ of prohibition preventing the 1st to 11th Respondents from exercising any powers under and in terms of the said Standing Order 78A in respect of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of Sri Lanka;
d. grant and issue a mandate in the nature of a Writ of prohibition preventing the 1st to 11th Respondents from making any finding in terms of the said Standing Order 78A in respect of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of Sri Lanka;
e. grant an interim order restraining the 1st to 11th Respondents from taking any further steps in terms of the said Standing Order 78A in respect of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of Sri Lanka;
f. grant Costs.
g. grant such other and further relief as Your Lordships’ Court may seem meet.
ATTORNEYS AT LAW FOR THE PETITIONER
Documents annexed to the Petition
1.Our appointment
2.Documents marked as P1 to P5
3.The Affidavit of the Petitioner
ATTORNEYS AT LAW FOR THE PETITIONER
-DBS