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Issuing notices on Speaker et al, a legal obligation – Court of Appeal

CJ’s writ Application against PSC findings

The Court of Appeal yesterday said that the order to issue notice on the respondents, the Speaker and the Members of the Parliamentary Select Committee, was nothing but a legal obligation to afford the respondents an opportunity of being heard.
Court issued notice returnable on January 3, 2013 in respect of the Writ Application filed by Chief Justice Dr. Shirani Bandaranayake, against the findings of the Paliamentary Select Committee which found her guilty of misconduct.

The petitioner has asked for interim relief against the PSC.

The Court said that it was of the view that if the Court after hearing of the application issued a writ of certiorari to quash the findings, any further steps taken in furtherance of the findings would be void.

The Court added that the relevant authorities should advise themselves not to act in derogation of the rights of the petitioner, until the application was heard and concluded, since any decision disregarding the proceeding to alter the status quo, may lead to a chaotic situation.

The Court of Appeal said it was conscious of the fact of a ruling given by the Speaker on the notice issued by the Court, in relation to another application pending in the Court, on the Speaker of Parliament and on the Members of the Select Committee appointed by the Speaker, where the Honorable Speaker ruled, “I declare that the purported notice, issued to me and to the Members of the PSC are a nullity and entail no legal consequences. I wish to make it clear that this ruling of mine as Speaker of Parliament will apply to any similar purported notice, order or determination in respect of the proceedings of the Committee, which will continue safely and exclusively under the authority of Parliament.”

“On this ruling of the Speaker, the Court of Appeal wishes to have it placed on record that the order to issue notice on the Speaker and the Members of the PSC, is nothing but a legal obligation on the part of the Court to afford the respondents an opportunity of being heard, thus adhering to the concept of audi alteram partem.

“The petitioner had complained that she was not given a fair hearing as two of the members of the PSC, who were biased towards the petitioner, sat as members of the PSC which arrived at the said decision despite the objection of the petitioner. The petitioner had contended that there is no evidence to come to the conclusion that the charges, 1, 4 and 5 are proved. As the petitioner the Chief Justice has established a prima facie case or consideration, the Court issued notice on the respondents.

The judgement explained that the PSC appointed by the Speaker had exercised powers of a judicial nature in finding that the charges 1, 4, and 5 were proved against the Chief Justice. Whether the PSC had the power and authority to act in the manner it had acted or whether it had exceeded its power or had failed to act judicially in arriving at its finding are matters subject to judicial review under Article 14 of the Constitution.

President’s Counsel Romesh de Silva appeared with President’s Counsel Nalin Ladduwahetty Saliya K. M. Peiris, Sugath Caldera, Riad Ameen, Buddhika Illangathilaka, Manjula Fernandopulle, Shanaka Cooray, Eraj de Silva and Vasantha Kumara Niles for the petitioner Dr. Shirani Bandaranayake.

The Judgement was by Justice S. Sriskandarajah (President Court of Appeal) with Justices Anil Gooneratne and A. W. A. Salam agreeing.

‘Powers of Court of Appeal are wide’
By Chitra Weerarathne


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