Nihal Sri Ameresekere, FCA, FCMA, CMA, CGMA, CFE

Associate Member, American Bar Association
Member, International Association of Anti-Corruption Authorities

When the President of the Republic refers in terms of Article 129 of the Constitution, a question of law or fact for the consideration of the Supreme Court, the said matter concerning a law is to be determined upon after consideration by at least 5 Judges of the Supreme Court. The Constitution being the supreme law of the Republic, hence should not the interpretation thereof have required the consideration by at least 5 Judges of the Supreme Court ? Article 129 of the Constitution is cited:

Speaker Chamal Rajapaksa

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-129. (1) If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon.

(2) Where the Speaker refers to the Supreme Court for inquiry and report all or any of the allegation or allegations, as the case may be, contained in any such resolution as is referred to in Article 38 (2) (a), the Supreme Court shall in accordance with Article 38 (2) (d) inquire into such allegation or allegations and shall report its determination to the Speaker within two months of the date of reference.

(3) Such opinion, determination and report shall be expressed after consideration by at least five Judges of the Supreme Court, of whom, unless he otherwise directs, the Chief Justice shall be one. (Emphasis added)

(4) Every proceeding under paragraph (1) of this Article shall be held in private unless the Court for special reasons otherwise directs. ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-

Furthermore, when the Chief Justice requires a question of general and public importance to be considered in terms of Article 132 of the Constitution by the Supreme Court, such matter is to be heard by a Bench comprising 5 or more Judges of the Supreme Court. The matter determined upon being the interpretation of Article 107(3) of the Constitution, would not such a matter be of general and public importance, and have been heard by a Bench comprising 5 or more Judges of the Supreme Court? Article 132 of the Constitution is cited:

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-132. (1) The several jurisdictions of the Supreme Court shall be ordinarily exercised at Colombo unless the Chief Justice otherwise directs.

(2) The jurisdiction of the Supreme Court may be exercised in different matters at the same time by the several Judges of that Court sitting apart:

Provided that its jurisdiction shall, subject to the provisions of the Constitution, be ordinarily exercised at all times by not less than three Judges of the Court sitting together as the Supreme Court.

(3) The Chief Justice may ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…”

(i) of his own motion ; or
(ii) at the request of two or more Judges hearing any matter; or
(iii) on the application of a party to any appeal,

proceeding or matter if the question involved is in the opinion of the Chief Justice one of general and public importance, direct that such appeal, proceeding or matter be heard by a Bench comprising five or more Judges of the Supreme Court. (Emphasis added)

(4) The judgment of the Supreme Court shall, when it is not an unanimous decision, be the decision of the majority. ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

Nevertheless, regardless of the foregoing, the matter of interpretation of Article 107(3) of the Constitution, regarding the impeachment of the Chief Justice, herself, the Chief Justice had constituted a Bench of only 3 Judges of the Supreme Court to interpret the said Article 107(3) of the Constitution, referred by the Court of Appeal on 20th November 2012 to the Supreme Court, under Article 125 of the Constitution, on a question arising in 7 Writ Applications considered by the Court of Appeal on that day i.e. 20th November 2012. The 7 Writ Applications filed by several Petitioners had been mainly sought Writs of Prohibition, prohibiting the Members of the Parliamentary Select Committee from investigating into the allegations of misbehaviour or incapacity alleged against the Chief Justice. However, the Parliamentary Select Committee had already completed its task on 8th December 2012.

Parliament proceedings

The aforesaid question had arisen in Applications directly concerning the impeachment of the Chief Justice, who had proceeded to constitute a Bench of 3 Judges of the Supreme Court to interpret Article 107(3) of the Constitution, which had directly concerned the Chief Justice, herself. Furthermore, would not such constitution of a 3 Judge Bench be in contravention of the aforesaid Articles 129 and 132 of the Constitution, which stipulated that such a matter be considered by a Bench of 5 or more Judges of the Supreme Court?

In the given circumstance it is of relevance to note that the Petition filed in the Supreme Court on 18th October 2012 by me in SC (SD) No. 2/2011 and the Minutes made thereon had been called for by the Parliamentary Select Committee on 4th December 2012, as recorded in Column 1 on page 1437 of the Report of the said Committee, prior to the Chief Justice and her Lawyers having left the proceedings of the Committee in the afternoon of 6th December 2012, as recorded in Column 2 on page 1505 of the said Report.

In the aforesaid Petition, I had put in issue perceived judicial bias and misconduct on the part of the Chief Justice. Two of the Justices of the aforesaid 3 Judge Bench had respectively minuted on 22nd and 24th October 2012, that the said averments made by me against the Chief Justice had been frivolous and belatedly made, which was incorrect, in that I had put the said matter in issue as far back as 9th February 2012. The same said allegations were contained in the Charges in the Impeachment Motion against the Chief Justice, which the aforesaid 7 Petitioners had sought Writs of Prohibition to prevent the Members of the Parliamentary Select Committee proceeding to investigate.

In the foregoing circumstances, the said two Justices having already pre-judged the aforesaid allegations made against the Chief Justice, thus and thereby would they not have been disqualified from being Members of the 3 Judge Supreme Court Bench constituted to interpret Article 107(3) of the Constitution, concerning investigations into the misbehaviour or incapacity of the Chief Justice?

The Supreme Court interpretation Order consequently made on 1st January 2013, arising out of 7 Writ Applications concerning the investigation by a Parliamentary Select Committee on the misbehaviour or incapacity of the Chief Justice, which had not been determined upon by a 5 Judge Bench of the Supreme Court in conformity with the stipulations in Articles 129 and 132 of the Constitution, but had been interpreted only by a 3 Judge Bench of the Supreme Court, constituted by the Chief Justice, herself. Furthermore, of the 3 Justices, the disqualification of two of the Justices having been in issue, to have heard the said matter, would not the said Supreme Court interpretation Order of 1st January 2013 have lacked constitutional jurisdiction warranting to be disregarded?

In making the said interpretation Order of 1st January 2013, the Supreme Court had heard the matter on 13th and 14th December 2012, and had entertained Written Submissions on 18th December 2012. The Chief Justice, herself, had filed a Writ Application in the Court of Appeal on 19th December 2012, seeking a Writ of Certiorari to quash the findings of the Parliamentary Select Committee Report, presented to Parliament on 8th December 2012.

The Court of Appeal had taken up the Application of the Chief Justice expeditiously on the very next day, i.e. 20th December 2012, and had issued Notices on the Members of the Parliamentary Select Committee for 7th January 2013. The aforesaid Order dated 1st January 2013 made by the aforesaid 3 Judge Bench of the Supreme Court, interpreting Article 107(3) of the Constitution had been issued by the Court of Appeal on 3rd January 2013.

The aforesaid Supreme Court Order interpreting Article 107(3) of the Constitution was in relation to the question arising in 7 other Writ Applications made by the other Petitioners in November 2012, and not on a ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”questionƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ arising from the Writ Application made by the Chief Justice. Nevertheless, the Court of Appeal on 7th January 2013 issued a Writ of Certiorari to quash the findings of the Parliamentary Select Committee Report based on the aforesaid Supreme Court interpretation Order made by the aforesaid 3 Judge Bench of the Supreme Court, which was in relation to a question arising in 7 other Writ Applications. Furthermore, the said Supreme Court interpretation Order made by a 3 Judge Bench of the Supreme Court, with the disqualification of two of whom having been in issue, would it not raise the question of the constitutional validity of such Supreme Court interpretation Order?

It is significant that both the Supreme Court and the Court of Appeal had worked expeditiously, sitting during the Court vacation, in the matter concerning the Chief Justice, whilst other litigants are not ordinarily given such special treatment. If such hasty procedure giving the perception of acting in concert the normal practice of an independent judiciary? On the other hand, complaint is made that the Parliamentary Select Committee, who had been given a time frame of one month had expeditiously completed its task in terms of the Constitution!

The Supreme Court interpretation Order of 1st January 2013 made by the 3 Judge Bench of the Supreme Court had interpreted Articles 4(c), read with 107(3) of the Constitution, in the context of the interpretation in Article 170 of the Constitution defining ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”lawƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ to mean any Act of Parliament. The said Articles of the Constitution are cited below:

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-4. The Sovereignty of the People shall be exercised and enjoyed in the following manner :-

(c) the 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; ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ (Emphasis added)

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-107. (3) 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 such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such Judge to appear and to be heard in person or by representative.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ (Emphasis added)

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-170. In the Constitution ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…”

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-lawƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ means any Act of Parliament and any law enacted by any legislature at any time prior to the commencement of the Constitution and includes an Order in Council; (Emphasis added)

By the said Supreme Court interpretation Order made by the said 3 Judge Bench of the Supreme Court, the words ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”or by Standing OrdersƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ in Article 107(3) of the Constitution had been expunged and/or suspended from the Constitution. The question arises, as to whether the Supreme Court had a constitutional mandate to do, when the Parliament is debarred from doing so in terms of the prohibition stipulated in Article 75 of the Constitution, as had been determined in the Special Determination made in October 2002 by a 7 Judge Bench of the Supreme Court on the aborted 19th Amendment to the Constitution, which Supreme Court Bench had also included the present Chief Justice. Article 75 of the Constitution is cited below;

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-75. Parliament shall have power to make, laws, including laws having retrospective effect and repealing or amending any provision of the Constitution, or adding any provision to the Constitution:

Provided that Parliament shall not make any law

(a) suspending the operation of the Constitution or any part thereof, or

(b) repealing the Constitution as a whole unless such law also enacts a new Constitution to replace it ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ (Emphasis added)

As to how it is ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”mandatoryƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ under Article 107(3) of the Constitution for the Parliament to provide by ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”lawƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦.., as interpreted by the said 3 Judge Bench of the Supreme Court, is in issue with the independence of the Legislature, which cannot be mandated except by the Constitution or by the People at a Referendum, whereas the Constitution has specifically stipulated the words by law ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”or by Standing OrdersƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢. Such interpretation had been made stipulating as ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”mandatoryƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ one limb of the Constitution, whilst disregarding / suspending the other optional limb.

In the context of the interpretation of the word ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”lawƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ to mean an Act of Parliament as per Article 170 of the Constitution, attention is drawn to Article 140 of the Constitution, which empowers the Court of Appeal to issue Writs.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-140. Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect examine the records of any Court of First Instance or tribunal or other institution, and grant and issue, according to law, orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warranto against the judge of any Court of First Instance or tribunal or other institution or any other person: (Emphasis added)

Provided that Parliament may by law provide that in any such category of cases as may be specified in such law, the jurisdiction conferred on the Court of Appeal by the preceding provisions of this Article shall be exercised by the Supreme Court and not by the Court of Appeal ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

In the context of the aforesaid interpretation by the said 3 Judge Bench of the Supreme Court, on a reference on a ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”questionƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ arising out of Writ Applications made against Members of a Parliamentary Select Committee, attention is drawn to the words ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”according to lawƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ in Article 140 of the Constitution. As defined in Article 170 of the Constitution there is no Act of Parliament enacted empowering the Court of Appeal to issue Writs, which the said 3 Judge Bench of the Supreme Court had apparently failed to take cognisance of.

In such circumstances, the Court of Appeal over the years had adopted the application of the Common Law in UK for the issuance of Writs in Sri Lanka. Could such Court of Appeal ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”adopted practiceƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ be deemed to be ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”superiorƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢, than even the Standing Orders made by Parliament in conformity with the Constitution. Under the Common Law of UK, no Writs or Orders, whatsoever are issued against the House of Commons or Lords, its Committees or the Speaker. Hence, would not the same be applicable in Sri Lanka in the circumstances of adopting the Common Law of UK?

In the Writ Application filed by the Chief Justice, Notices had been issued by the Court of Appeal, citing the case of Mark Antony Lyster Bracegirdle 39 NLR 193 @ 205, which is on an issuance of a Writ against the then Governor, who was exercising executive power, and not against the Parliament i.e. the House of Commons of UK. Had not the Court of Appeal failed to recognise the difference between the executive and the legislature?