Appeal court rules PSC probe into CJ’s deeds void

Supreme Court says standing orders not law

By Chitra Weerarathne-January 3, 2013

The Court of Appeal yesterday said the steps that had been so far taken and would be taken by a Parliamentary Select Committee appointed under Standing Order 78A were prime facie void. The Court of Appeal read out the Supreme Court interpretation in respect of Article 107/3, where the apex court had said that Standing Orders were not law and that the PSC appointed under an Act of Parliament were legally sound.

The Supreme Court on January 1, 2013 declared that in a State ruled by a Constitution based on the rule of law, no Court, tribunal or other body, had authority to make a finding or a decision affecting the rights of a person, unless such Court, tribunal or body had the power conferred on it by law to make such finding or decision. Such legal power could be conferred on such a Court, tribunal or body only by an Act of Parliament, which was law and not by Standing Orders, which were not law, but rules made for the regulation of the orderly conduct and the affairs of the Parliament. The Supreme Court had said  that Standing Orders were not law within the meaning of Article 170 of the Constitution, which defined what was meant by law.

A PSC appointed in term of Standing Order 78A, derived its power and authority solely from the said Standing Order, which was not law. Therefore the PSC appointed under and in terms of Standing Order 78A had no legal power or authority to make a finding adversely affecting the legal rights of a judge, against whom the allegations made in the resolution, moved under Article 107/2, was the subject matter of its investigation. The power to make a valid finding after the investigation, in Article 107/3, could be conferred on a Court, tribunal or a body, only by law and by law alone, the Supreme Court said.

The parliament could impeach a judge of an apex Court, subsequent to the finding by a body appointed under an Act of law framed by Parliament, being guilty of misconduct.

An address of Parliament was needed for the removal of a judge, the Supreme Court had said.

The Court of Appeal had referred to the Supreme Court, for interpretation, Article 107/3 and whether a PSC, appointed under Standing Order 78A could investigate allegations against the Chief Justice Dr. Shirani Bandaranayake. The need for an interpretation arose during the hearing of a writ application, filed against the suitability of the Parliament Select Committee, appointed under a Standing Order to investigate the conduct of the Chief Justice.

The interpretation was by Supreme Court Justices N. G. Amaratunga, K. Sripavan and P. Dep.

Consequent to the aforesaid declaration and interpretation by the Supreme Court, the Court of Appeal yesterday said that the proceedings against the Chief Justice, had been initiated by a PSC not established under the law. Therefore, the commencement of the proceedings and the furtherance of such proceedings were prima facie void.

Notice was issued on the respondents, the Speaker and the members of the PSC, returnable on Jan. 15, 2013. This was done as a legal obligation to hear all sides, the Court of Appeal said.

President’s counsel Romesh de Silva appeared for the petitioner party.

The Court of Appeal Bench comprised Justices Anil Gooneratne and A. W. A. Salaam.