SC cannot probe CJ, own judges – AG

December 14, 2012, 9:47 pm 

By Chitra Weerarathne-December 14, 2012,

Attorney General Palitha Fernando PC, yesterday told the Supreme Court that a panel of Supreme Court Judges could not be called upon to investigate allegations of misconduct against the Chief Justice or any other judge of the Supreme Court.

The authority to investigate had been handed over to Parliament consisting of representatives of the people in a unitary state where the people and the Constitution were Supreme, the AG said, adding that if judges did anything wrong the people could not throw them out. Hence, the authority had been bestowed upon Parliament to investigate judges. A Parliamentary Select Committee (PSC) probe was not a criminal trial; the presumption of innocence came only in a criminal trial. The process carried out by PSC was to decide whether a Justice needed to be impeached, he said.

The AG added that the PSC had been appointed by a resolution of Parliament, under Standing Orders. Article 173 of the Constitution said that Parliament by law or by Standing Order, provided for a resolution to investigate the conduct of a judge. The PSC had been appointed by the Speaker. Judges of the apex court held a very special office. Their discipline could only be investigated by the institution appointed by the sovereign people, the AG said, noting that the word, guilt, could amount to culpability in an impeachment process.

The Supreme Court yesterday continued to hear the reference to it by the Court of Appeal to interpret Article 107/3 of the Constitution.

A group of petitioners had filed Writ Application in the Court of Appeal, seeking to prohibit the proceeding of the Select Committee appointed to investigate the conduct of the Chief Justice Dr. Shirani Bandaranayake.

Counsel Chandra Liyanapatabandi appearing for an intervenient petitioner and said that the Courts of law had no jurisdiction to investigate matters before Parliament.

The Court of Appeal could not entertain a writ against the PSC and make a reference to the Supreme Court, which in turn would not have jurisdiction over Parliament.

Counsel added that the matters of Parliament could not be interfered with by any court. The PSC was an extension of Parliament and comprised members of Parliament, the counsel said.

The law provided no remedy against anything done in Parliament. The Parliament had a separate autonomy of its own to regulate its affairs, he said.

Prof. Suffrullah supported another intervenient petition. He said that the Court of Appeal should not have made the reference without notifying the Attorney General. Hence, there was no proper reference before the Supreme Court.

The exercise of judicial power was not involved in the impeachment process. Once a resolution was passed by Parliament, the President had to dismiss the judge concerned. Power had been given to the Parliament to remove the judge. Even the entire Parliament could sit to conduct an investigation. The PSC was an extension of Parliament. Even in Australia, the Parliament could impeach judges, after an address of Parliament. Article 107 of the Constitution had given similar powers to the Sri Lankan Parliament, he argued.

Prof. Suffrullah said that the Court cannot determine the constitutionality of the Standing Order 78A, because the original jurisdiction was in the Court of Appeal. It should come by way of appeal to the Supreme Court. The power to remove a judge was with the legislature, unless Article 107/3 was amended.

Counsel Razeek Farook, PC supported another intervenient petition. The process of impeachment had to go through Parliament. The PSC findings should be placed before Parliament for necessary action. That was not a criminal process. The Court of Appeal had failed to call the Attorney General when the Writ Application was heard. He would have said it was a matter for comprehension and not one to seek interpretation on.

The Bench comprised Justices N. G. Amaratunga, K. Sripavan and Priyasard Dep.

The Supreme Court will send their determination on the reference to the Court of Appeal shortly.