When Emirates flight 231 from Dubai touched down 38 minutes ahead of schedule at Washington’s Dulles International Airport on a chilly Thursday morning, a posse of secret service agents and a motorcade were on the ready. Within minutes, they whisked away President Mahinda Rajapaksa, who arrived in the US capital, to the Four Seasons hotel [...]


Legislature and judiciary on collision course

= Even if the impeachment motion is passed, the country and the people will be the losers
= President on surprise visit to US to see ailing PM; speculation of Cabinet reshuffle

When Emirates flight 231 from Dubai touched down 38 minutes ahead of schedule at Washington’s Dulles International Airport on a chilly Thursday morning, a posse of secret service agents and a motorcade were on the ready.

Within minutes, they whisked away President Mahinda Rajapaksa, who arrived in the US capital, to the Four Seasons hotel in Baltimore, Maryland. The hotel overlooks the eastern front of the harbour there. The 256 room/suite hotel is barely a year old.

Plans for a quick private visit to Washington, en-route to Colombo from the Kazakhstan capital of Astana, had been in the making for weeks, but had remained a closely guarded secret. The Presidential Secretariat had made the arrangements with the United States Embassy in Colombo and the Sri Lanka Embassy in Washington, even before Rajapaksa and his entourage had left for Astana.

Ambassador Jaliya Wickremesuriya had played a key role. Ending a three-day official visit to Kazakhstan, Rajapaksa and his entourage that included 30 businessmen, arrived in Dubai on Thursday morning in the special SriLankan Airlines Airbus A-330 flight. Three captains – Druvi Perera, Prasanna Karunatilleke and Ranga Amadoru – took turns at the controls as the special flight, on their onward journey, over flew Indian, Pakistani and Iranian air space to touch down at Astana International Airport. Their return journey however was over Iran and through the United Arab Emirates.

Whilst Rajapaksa disembarked from the Airbus A-330, first lady Shiranthi and all other members, except two in the entourage, continued their journey to Colombo. He boarded the first class private suite on Emirates flight 231 for the 14 hours and 15 minutes flight to the United States. Accompanying him were ‘Temple Trees’Chief of Staff Gamini Senarath and Sajin Vass de Gunawardena, Monitoring MP of the External Affairs Ministry. The Boeing 777 long-range aircraft is usually set to touch down at 8.10 a.m. at the Dulles International Airport. However, tailwinds gave the flight a 38 minute advantage making an ahead of schedule landing at 7.28 a.m.

After a brief wait at the Four Seasons Hotel, President Rajapaksa drove to the state-of-the-art Johns Hopkins Hospital also in Baltimore, Maryland, to visit Prime Minister, D.M. Jayaratne. He has been undergoing treatment at this teaching hospital and biomedical facility of the Johns Hopkins University School of Medicine for several weeks. Although he is scheduled to be discharged from the hospital on Monday (tomorrow), doctors have said he would not be in a position to return to work. That coupled together with Rajapaksa’s visit to see him have fuelled speculation in sections of the UPFA that a cabinet reshuffle, even a minor one, may be on the cards in the New Year. However, sources close to Rajapaksa remained tight-lipped on the subject. The Premier is expected to fly to Colombo on the same day (Monday). He is being accompanied by his wife, son Anuradha Jayaratne, Private Secretary, and Kirthi Sri Weerasinghe, Co-ordinating Secretary. Besides visiting Premier Jayaratne, Rajapaksa also had another reason to visit the hospital.

President Rajapaksa with the ailing Prime Minister D.M. Jayaratne at the Johns Hopkins Hospital in Maryland.

A source close to him said he was undergoing a “routine medical check-up” himself and would leave the US capital for Colombo on Tuesday. Although the visit is “absolutely private and no visits or engagements are planned in Washington D.C.,” the source said “the Department of State was providing him with all courtesies due to a head of state. This was how secret service agents and a vehicle fleet had been assigned to him. Security has been placed at maximum level.” Rajapaksa is keeping his schedule on a low key and has not even had meetings with the Sri Lankan community. This is not the first time Rajapaksa has gone to the US for medical checks. In January last year he flew to Houston, again from Dubai, and was at a leading medical centre there. This is besides meeting his brother Dudley who also lives there.

Whilst in Washington, Rajapaksa has been busy on the telephone calling Colombo. One of the issues that has drawn considerable attention is the impeachment motion against Chief Justice Shirani Bandaranayake. Both Chief of Staff Senarath and Monitoring MP Gunawardena have been busy helping the President to speak with ministers and officials. They came at a time when both the Judiciary and the Legislature, in a new development, were clearly on a collision course over constitutional issues. On Friday, the eleven member Parliamentary Select Committee (PSC) probing Chief Justice Bandaranayake chose to ignore the “recommendation” of a three-member Supreme Court bench to delay its sittings until some constitutional issues raised before the judges were determined by the Supreme Court. The SC declared it would be “prudent” for the PSC to postpone its sittings. Within minutes of the SC making its recommendation public, Deputy Speaker Chandima Weerakkody, declared that the PSC sittings would continue.

Those remarks seemed to underscore the stance by both Government and even opposition MPs that “Parliament is supreme” and hence there was no need to heed the SC “recommendation” or its advice to be “prudent”. Even though PSC members were delivered the Supreme Court order at their Colombo addresses, no formal response was even considered. On the other hand, the Supreme Court, it was highlighted before the Supreme Court this week, has “the sole and exclusive discretion to hear and determine any question relating to the interpretation of the Constitution, and accordingly, whenever any such question arises in the course of any proceeding in any other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions, such questions, shall forthwith be referred to the Supreme Court for determination.” The provision is spelt out in Article 125 of the Constitution. The diverse views by two powerful arms, the Judiciary and the Legislature, it is clear, are freewheeling towards a head on collision. There are fears within those concerned on both sides that an aggravated situation would make matters irreversible and chaotic.

That apart, Deputy Speaker Weerakkody’s remarks seemed a signal even for Chief Justice Bandaranayake that she had to be present in Parliament. Having responded to the 14 allegations against her in a 24-page reply, she prepared for it. She and her lawyers discussed procedural arrangements including how she and her counsel would travel to Parliament. They were aware of moves by sections in the UPFA to give her a rough ride, forcing her to take the House bus to the Parliament complex from the main gateway. Her written reply was handed over to all members of the PSC. Parliamentary privileges prevent its publication. However, at least one political party which received a copy was preparing yesterday to post it on its website and publish it in its official organ. Another Sinhala newspaper is also making preparations to publish the response in its Friday edition. The SC “recommendation” also raised an issue with some lawyers whether such a pronouncement by the Supreme Court is legally binding? If it was so, some were asking whether it constituted contempt of court. However, others including seniors dismissed the notion on the grounds that it was only a recommendation and not an order.

On Friday morning, the Chief Justice went to her chambers in Hulftsdorp where judges from both the higher and lower courts had turned up to greet her. Later, she exited from the courts complex from the lawyer’s entrance, amidst cheers by those lawyers present. Instead of using her official vehicle, she boarded instructing attorney Kandiah Neelakandan’s car. Crowds including lawyers mobbed her. Some clapped whilst others shouted slogans. Outside courts there were banners expressing support for her. Some lawyers in their black coats and tie dashed coconuts, a ritual to draw the wrath of gods. If most broke as they hit a hard rock as was expected, some bounced away. Court employees held a special Pooja at a nearby Buddhist temple to invoke blessings on the Chief Justice.

Chief Justice Shirani Bandaranayake pulled down the rear window to give a broad smile to journalists when she drove to Parliament on Friday for the hearing of the impeachment motion against her. Pic by Indika Handuwala

Media personnel, including a large number of photographers, had earlier taken up position a little distance past the first entrance gate to Parliament. It lay adjoining the memorial to troops who died in the separatist war. Police asked them to move outside the gate. When the car carrying the Chief Justice and attorney Kandiah Neelakandan seated behind with her and Counsel Saliya Peiris in the front made its way to the entrance, she had lowered the darkened rear window. She smiled and appeared well composed as cameras clicked away. Moments later, a Police officer urged that she close the window and he stood in front to prevent photographers from taking pictures. Perhaps seeing this, the Chief Justice lowered the rear window again and continued to exude a broad smile giving photographers another opportunity. However, she refrained from making any comments.

The vehicle proceeded to the public entrance of Parliament. She was received there by Kushan Jayaratne, Assistant Sergeant at Arms. From there, she was escorted by him to the outer area of Committee Room One. She was called in by the PSC at 11.15 a.m. though she was requested to be present at 10.30 a.m. At first she was told to come before the PSC alone without any counsel. She had refused to do so. Thereafter, senior Counsel Romesh de Silva, PC was allowed to be present.

Her lawyers said some formalities were discussed but further details cannot be divulged in view of privilege issues. An hour into the proceedings, other lawyers were also allowed in. When the one-hour-45-minute sitting ended, Sergeant at Arms Anil Samarasekera escorted her to the public entrance where she again got into her attorney’s car. With the CJ in the parliament complex were her senior counsel Romesh de Silva, PC, Nalin Ladduwehetty, PC, Saliya Peiris, Riyaz Ameen, Eraj de Silva, Sugath Caldera and instructing attorney Kandiah Neelakandan. Her lawyers said the CJ had been given time till November 30 if she had any more written representations to make on the 14 charges against her. They said she had sought an extended period but was not successful. The PSC will meet again on December 4.

On Thursday, hospitalisation of the PSC Chairman, Minister Anura Priyadarshana Yapa, after a suspected dengue attack, cast doubts on sittings being held on Friday. However, he was discharged that day. Other members of the PSC are Ministers Nimal Siripala de Silva, Wimal Weerawansa, Rajitha Senaratne, Dilan Perera, Susil Premajayantha, Deputy Minister Neomal Perera, John Ameratunga (UNP), Lakshman Kiriella (UNP), Vijitha herath (JVP) and Rajavarothayam Sampanthan (TNA).

Ahead of Friday’s PSC sittings, the Court of Appeal entertained nine different petitions on matters related to the impeachment of the Chief Justice this week. Seven petitions challenged the setting up of a Parliamentary Select Committee on the grounds that it could not find a Judge guilty since it was not a court of law recognised by the Constitution. Legal counsel representing the petitioners contended that it had been appointed under Parliamentary Standing Orders (Section 78) and such orders were not a law but procedures for the conduct of proceedings of the House. Four of these petitions –from Venerable Madulawawe Sobhitha Thera of the Kotte Sri Naga Viharaya, Chandra Jayaratne, a company director from Greenlands Avenue, Colombo 5, Dr. Jayampathy Wickramaratne, PC from Kalapaluwawa, Rajagiriya and Visaka Perera Thillakaratne of Kirillapone Avenue, Colombo 5 – were heard last Thursday. The Court of Appeal was made up of Justices S. Sriskandarajah, Anil Goonaratne and A.W.A. Salam. The Court of Appeal referred these four cases to the Supreme Court for an interpretation of the law, as the Supreme Court was the country’s Constitutional Court. Three more cases were filed before the Court of Appeal thereafter by The Green Citizen Foundation, Environment Conservation Trust and Ashoka Harischandra, President of the Sugodini Foundation. They also challenged the setting up of the PSC on the same grounds as the previous petitioners. These too were also referred to the Supreme Court.

Two other petitions challenged the eligibility of Ministers Wimal Weerawansa and Rajitha Senaratne to serve as members of the PSC. They came up before the same three-member Court of Appeal bench on Tuesday. The petitioner’s counsel, Chandrapala Kumarage said in his application that in July 2008, Weerawansa had sought an injunction in the Commercial High Court to prevent the publication of a book titled “Neththa Wenuveta Aththa” (Truth Instead of Nothing) on grounds of copyright. It was refused. He had challenged the order in the Supreme Court where a bench chaired by Chief Justice Shirani Bandaranayake presided.

Counsel for Kumarage said there was bias on the part of Weerawansa who eventually “withdrew his application to the Supreme Court in April 2010, as is “evident from the Order bearing such date.” Counsel said in the petition that Weerawansa’s political party, the National Freedom Front (NFF), had been reported in the media as having taken up the position that it delayed referring an application to the Supreme Court challenging the 13th Amendment to the Constitution, “due to the current conflict of interest between the judiciary and the legislature.” Hence, Weerawansa has already decided and/or has prejudged the issues relating to charges against the CJ and is biased against “Her Ladyship the Chief Justice,” the petition alleged.

The petition also said that in November 2001 action was instituted against Weerawansa in the District Court of Colombo by Ravindra Sandresh Karunanayake seeking Rs. 500,000 in damages. Weerawansa’s application in January 2003 to amend the answer was dismissed by the Judge since he was absent and unrepresented on the date on which the application was fixed for inquiry. The inquiry was later concluded by way of written submissions in favour of Weerawansa.

Karunanayake thereafter made an application for special leave to appeal to the Supreme Court. It was granted. This appeal had been taken up before Chief Justice Bandaranayake on several occasions. Weerawansa, the petition alleged, “has a vested interest in the outcome of the” application filed in the Supreme Court.

Nimal Weerakkody of Kaldumulla Road, Moratuwa, has said in his petition against Minister Rajitha Senaratne that the minister’s wife, Sujatha instituted a Fundamental Rights Application in the Supreme Court. It had been heard for leave to proceed and grant of interim relief before a bench presided by Chief Justice Bandaranayake. Sujatha, a Senior Medical Officer, attached to the health service belongs to the Senior Medical Administrative Grade in the Ministry of Health. She was challenging her non-appointment as Director of the Colombo National Hospital. The SC had made order dismissing the application. Therefore, the petitioner argued that both Senaratne and wife Sujatha were affected by the dismissal of the fundamental rights application and the minister was thus “disqualified to sit and/or vote as a member” of the PSC. The Court of Appeal granted counsel time to consult their clients and put off the case for December 11. It came after the Court pointed out that the aggrieved party would have to first make their objections known to the PSC before a third party intervention in courts on their behalf was possible.

On Thursday, a three-judge Supreme Court bench presided by Justice Gamini Ameratunga heard the nine petitions it had received from the Court of Appeal. Others in the bench were Justices K. Sripavan and Priyasath Dep. On the same morning, they noticed Attorney General Palitha Fernando to appear before them in the afternoon.

A team of several leading lawyers appeared for the different petitioners. They included K. Kanag-Isvaran PC, S.L. Gunasekera, Sanjeeva Jayawardena PC, Shibly Aziz PC (a former Attorney General), Uditha Egalhewa PC, Chismal Warnasuriya and C. Alagaratnam PC.

Attorney General Palitha Fernando, PC was assisted by Deputy Solicitor General Shavindra Fernando, Assistant Solicitor General (ASG) A. Gnanathasan PC, Deputy Solicitor General Sanjaya Rajaratnam, Deputy Solicitor General Janak de Silva, Deputy Solicitor General A.H.M.D. Nawaz, and Senior State Counsel N. Pulle.

After hearing the counsel and the Attorney General, the Supreme Court made order. Here are the relevant excerpts:

“The Court of Appeal acting in terms of Article 125 of the Constitution has referred the following question relating to the interpretation of the Constitution:

“Is it mandatory under Article 107 (3) of the Constitution for the Parliament to provide for matters relating to the forum before which the allegations are to be proved, the mode of proof, the burden of proof, the standard of proof etc. of any alleged misbehaviour or incapacity in addition to the matters relating to the investigation of the alleged misbehaviour or incapacity.

“Article 125 (2) of the Constitution mandates that the question referred to the Supreme Court shall be determined within two months of the date of the reference. In terms of Rule 64 (1) of the Supreme Court Rules of 1978 certain procedural steps have to be followed before a determination is made by this Court.
“It was the submission of all learned President’s Counsel and the learned counsel who appeared in support of the motion that the inquiry before the Select Committee of Parliament would commence at 10.30 a.m. tomorrow (the reference is to Friday), i.e. 23 – 11 – 2012 an irreparable damage would be caused to the person noticed that is the Hon. Chief Justice if proceedings before the Select Committee are not stayed by this Court. According to the pleadings filed in the Court of Appeal and the submissions made by all learned counsel in this Court, standing order 78 (A) of the Parliament contravenes Article 4 (c), read with Article 3, Article 12(1) and Article 13 (5) of the Constitution and are also contrary to the accepted norms relating to the burden of proof. These questions will be addressed once the procedural rules are complied with.
“However, at this stage, this Court whilst re-iterating that there has to be mutual respect and understanding founded upon the rule of law between Parliament and the Judiciary for the smooth functioning of both the institutions, wishes to recommend for the members of the Select Committee of Parliament that it is prudent to defer the inquiry to be held against the Hon. Chief Justice until this Court makes its determination of the question of law referred to by the Court of Appeal.

“The desirability and paramount importance of acceding to the suggestions made by this Court would be based on mutual respect and trust and as something essential for the safeguarding of the rule of law and the interest of all persons concerned and the ensuring that justice is not only be done but is manifestly and undoubtedly seem to be done.”

In keeping with a Supreme Court directive, certified copies of the order were hand delivered to the Colombo addresses of members of the PSC. This was with certified copies of the Petition and affidavit filed in the Court of Appeal together with a copy of the order of reference made by the Court of Appeal. The Attorney General has also been sent a copy together with another to the Registrar of the Court of Appeal. The case will be heard again on November 28.

On Friday, the Supreme Court considered three Fundamental Rights petitions. The petitioners claimed that their fundamental rights have been violated as the Parliamentary Standing Orders under which the Select Committee appointed to probe Chief Justice Bandaranayake, has been constituted were not effective in law.
The petitioners were Janaka Adikari, an Attorney at law and the General Secretary of the Inter-Company Employees Union, Chandraguptha Thenuwara, an Artist and Mahinda Jayasinghe, the General Secretary of the Ceylon Teachers Services Union. The bench comprised Justices Gamini Amaratunga, K. Sripavan and Priyasath Dep.

Counsel M.A. Sumanthiran, Viran Corea and Suren Fernando argued that the Standing Orders were only used in Parliament and could not be utilised as a legislative Act. Hence, they argued that the Standing Orders could not be used against a citizen of the country. Justice Gamini Amaratunga inquired from Deputy Solicitor General (DSG) Shavindra Fernando, representing the state whether the Standing Order in parliament was considered a Legislative Act. He did not respond to the question. However, the DSG argued that the Supreme Court should not entertain the applications. The cases are to be called again on January 21 next year.

As is clear, two major Supreme Court rulings – one, its determination on whether the Parliamentary Select Committee (PSC) is constitutional, and two, the fundamental rights petitions (three of them), will be critical. Most important among the two would be what would follow when the SC resumes sittings on Wednesday (November 28) to hear the nine petitions and make its conclusions known.

If it rules that the PSC has been legally constituted, it would add muscle to the Government’s resolve to fast track the impeachment resolution. On the other hand, if the SC holds that that the PSC is not legally constituted on the basis that it has been appointed under Standing Orders of Parliament, on the grounds that it is not a Legislative Act, the question that begs answer is what follows. One need hardly be a rocket scientist to say a head on confrontation between the Judiciary and the Legislature would become inevitable. In such an event, even if the legislature becomes the winner, the country and its people will be the losers. There will be a strong message in it both for Sri Lankans and the outside world.

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