CHIEF JUSTICE FILED ACTION AGAINST PSC REPORT FULL TEXT OF THE PETITION

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an application for mandates in the nature of writs of Certiorari and Prohibition under and in terms of Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka

HON. (DR.)
UPATISSA ATAPATTU BANDARANAYAKE WASALA MUDIYANSE
RALAHAMILAGE SHIRANI ANSHUMALA BANDARANAYAKE,

Chief Justice of the Supreme Court of Sri Lanka, Residence of the Chief Justice of Sri Lanka,
129, Wijerama Mawatha,
Colombo 07. PETITIONER Vs
1.
HON. CHAMAL RAJAPAKSE, Hon. Speaker of Parliament, Speakers Residence,
Sri Jayawardanepura Kotte.
2.
HON. ANURA PRIYADARSHANA YAPA, MP
Eeriyagolla,
Yakwila.
3.
HON. NIMAL SIRIPALA DE SILVA, MP
93/20, Elvitigala Mawatha, Colombo 08.
4.
HON. A. D. SUSIL PREMAJAYANTHA, MP
123/1, Station Road,
Gangodawila, Nugegoda.
5.
HON. DR. RAJITHA SENARATNE, MP
CD 85, Gregory's Road, Colombo 07.

6.
HON. WIMAL WEERAWANSA, MP
18, Rodney Place,
Cotta Road, Colombo 08.
7.
HON. DILAN PERERA, MP
30, Bandaranayake Mawatha,
Badulla.
8.
HON. NEOMAL PERERA, MP
3/3, Rockwood Place, Colombo 07.
9.
HON. LAKSHMAN KIRIELLA, MP
121/1, Pahalawela Road,
Palawatta, Battaramulla.
10.
HON. JOHN AMARATUNGA, MP
88, Negombo Road,
Kandana.
11.
HON. RAJAVAROTHIAM SAMPATHAN, MP
2D, Summit Flats,
Keppitipola Road, Colombo 05.
12.
HON. VIJITHA HERATH, MP
44/3, Medawaththa Road, Mudungoda,
Miriswaththa, Gampaha.
All of the above Respondents also of the Parliament of Sri Lanka, Sri Jayawardanepura Kotte.
13.
W.B.D. DASSANAYAKE, Secretary General of Parliament, Parliament Secretariat, Parliament of Sri Lanka,
Sri Jayawardanepura Kotte

RESPONDENTS

TO: HIS LORDSHIP THE PRESIDENT AND OTHER HONOURABLE JUDGES OF THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA On this 19th   day of December 2012

The PETITION of the PETITIONER above-named appearing by Kandiah Neelakandan,

Asian Human Rights Commission |www.humanrights.asia

Sashidevi Neelakandan and Saravanan Neelakandan practising in partnership under the name style and firm of
NEELAKANDAN & NEELAKANDAN
and their Assistants Mohottige Don Raja Mannapperuma, Asurappuli Hewage Sumathipala,
Shehani Niranji Ratnaweerage, Mohamed Kaleel Mohamed Irshad, Gnanapragasam Pushpa



Angelin, Sriskandarajah Pratheepa and Pranavan Neelakandan, her Registered Attorneys, statesas follows:-1.The Petitioner is the 43 rd and the incumbent Chief Justice of Democratic Socialist Republic of Sri Lanka. The Petitioner was appointed as a Judge of the Supreme Court ofSri Lanka in October 1996 and was appointed as the Chief Justice of Sri Lanka on 18 th May 2011.2.The 1 st Respondent is the Hon. Speaker of the Parliament of the Democratic SocialistRepublic of Sri Lanka.3.(a)The Petitioner states that:(a)the 2 nd Respondent is a Member of Parliament for the Kurunegala District representing the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of Environment.(b)the 3 rd Respondent is a Member of Parliament for the Badulla District representing the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of Irrigationand Water Resources Management and is the leader of the House of the Parliament. (c)the 4 th Respondent is a Member of Parliament for the ColomboDistrict representing the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of Petroleum Industries.(d)the 5 th Respondent is a Member of Parliament for the Kalutara Districtrepresenting the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister  of  Fisheries  and  Aquatic  Resources  Development.(e)the  6  th  Respondent  is  a Member of Parliament for the ColomboDistrict representing the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of Construction, Engineering Services, Housing and Common Amenities.(f)the 7 th Respondent is a Member of Parliament for the Badulla Districtrepresenting the United People’s Freedom Alliance and a member of the Cabinet of Ministers holding the portfolio of Minister of ForeignEmployment Promotion and Welfare.

(g)the 8 th Respondent is a Member of Parliament for the Puttlam Districtrepresenting the United People’s Freedom Alliance and the DeputyMinister of External Affairs.(h)the 9 th Respondent  is  a  Member  of  Parliament  for  the  Kandy  District  representing  the  United National Party. (i)the 10 th Respondent is a Member of Parliament for the Gampaha District representing the United National Party.(j)the 11 th Respondent is a Member of Parliament for the Trincomalee District representing the Illankai Tamil Arasu Kadchi. (k)the 12 th Respondent is a Member of Parliament for the Gampaha District representing the Democratic National Alliance. (b) The Petitioner states that the aforesaid 2 nd to 12 th Respondents were appointed bythe 1st Respondent to a Select Committee under a purported Standing Order
78Aof the Parliament to investigate into alleged acts of misconduct or incapacity of the
Petitioner, pursuant to a Resolution presented to the 1 st Respondent in terms of Article
107(2) of the Constitution as morefully set forth hereinafter. (c) The 3 rd Respondent was the
Chairman of the Select Committee purportedlyappointed by the 1 st Respondent in order to investigate purported charges againstthe Petitioner in order to impeach the Petitioner.(d) The Petitioner states that there is no provision in the Standing Orders of theParliament, for a Select Committee appointed under the purported Standing Order78A to continue functioning notwithstanding any vacancy created in such SelectCommittee. 4.The 13 th Respondent is the Secretary General of the Parliament and the Secretary to the purported Select Committee appointed under Standing Order 78A of the Parliament. 5.The Petitioner states that (a)the


Government of Sri Lanka addressed the attached periodic report to theHuman Rights Committee appointed under and in terms of the InternationalCovenant on Civil & Political Rights a treaty to which Sri Lanka is a signatory. Atrue copy of the said document is filed herewith marked P1 and pleaded as partand parcel hereof.(b)the Petitioner has been reliably informed that the said report was presented to thesaid Committee by a high profile delegation including the PermanentRepresentative to the UN Mr Prasad Kariyawasam, Dr. Rohan Perera, Ms.LalaniPerera and the then Solicitor General of Sri Lanka Mr. C R De Silva, President’sCounsel.

(c)the Petitioner states that the said document in Clauses 298, 299, 300, 301 and 302 dealt with Standing Order 78A, and more particularly Clause 302 states as follows:On the previous occasion the Human Rights Committee examined Sri Lanka’speriodic report, it express concern on the compatibility of the impeachment process with the scope and spirit of Article
14, since it would compromise theindependence of the judiciary. As stated above Article 107 a  judge  can  be  removed  only  on  “proved  grounds  of  misbehaviour  or  incapacity”  and
thestanding orders allows for the judge in question defend himself either on his own or
retaining  a  legal  counsel,  non  adherence  to  the  rules  of  natural  justiceby  the  inquiry committee would attract judicial review. Indeed nowhere eitherin the relevant constitutional provisions or the standing orders seek to excludejudicial scrutiny of the decisions of the inquiring committee. Thus, it is envisaged that if the inquiring committee were to misdirect itself in orbreached the rules of natural justice its decisions could be subject to judicial review.A true copy of the Standing Order 78A is filed herewith marked P1(a) andpleaded as part and parcel hereof.(d) in the circumstances the Government of Sri Lanka has represented that thedecisions of the Select Committee appointed under Standing Order 78A wouldattract judicial scrutiny. 6.The Petitioner further states that the Respondents are estopped from denying that thedecisions of the select committee  are subject to judicial review and are estopped from denying that the Respondents are bound by judgments of competent courts exercisingjudicial review of the decision of the Select Committee.B ACKGROUND F ACTS
7.The Petitioner states that(a)on or about 1 st November 2012, a Notice of a Resolution purportedly under Article107(2) of the Constitution signed by 117 Members of Parliament was handed overto the 1 st Respondent seeking inter alia the removal of the Petitioner on the allegedgrounds of misbehavior and/or incapacity. A true copy of the said resolution isfiled herewith marked P2 and pleaded as part and parcel hereof.(b)on or about 6 th November
2012, the 1 st Respondent caused the said Resolution tobe published in the Order Paper of the Parliament of Sri Lanka and announced that a Select Committee comprising of 11 Members of Parliament will be appointed toinvestigate into the purported allegations contained in the said Resolution. (c)pursuant to the nominations made by the respective constituent parties of the Parliament, the following 11 members were appointed by the 1 st Respondent to the said Select Committee on 14 th November 2012

(a)the 2 nd to 8 th Respondents representing the ruling United People’s Freedom Alliance; (b)the 9 th and 10 th Respondents representing the United National Party;(c)the 11 th Respondent representing the Illankai Tamil Arasu Kachchi;and(d)the 12 th Respondent representing the Democratic National Alliance. 8.The Petitioner states that(a)at about 7.00 p.m. on 14 th November 2012, the Petitioner received a letter dated 14 th November, 2012 under the hand of the 13 th Respondent informing the Petitioner of the aforesaid Notice of Resolution received by the 1 st Respondent, theappointment of the 2 nd to 12 th Respondents to the purported Select Committee on14 th November 2012 to try the said charges and report to the Parliament and themeeting of the said purported Select Committee on 14 th November
2012 and informing the Petitioner:(a)to submit the Statement of Defence to the said purported


charges contained in the Notice of Resolution on or before 22 nd November 2012;(b)to appear before the said purported Select Committee at 10.30 a.m. on 23 rd November 2012 either personally  or  by  representative.(b)the  said  letter  dated  14  th  November  2012  had  the purported charges included in theNotice of the Resolution as Attachment 1 and a copy of the Standing Order 78A asAttachment 2. A true copy of the said letter dated 14 th November
2012 togetherwith the said attachments are filed herewith marked P3 and pleaded as part andparcel hereof.9.The Petitioner states that the Petitioner appointed Messrs Neelakandan &
Neelakandan asthe Instructing Attorneys for the Petitioner and on the instructions of the
Petitioner, thesaid Messrs Neelakandan & Neelakandan, without prejudice to the rights of the
Petitionerincluding the right to object to the jurisdiction of the Select Committee, wrote to the
13 th Respondent on 15 th November, 2012, drawing attention to the fact that the Petitioner has  only been  given  approximately a  week’s time  to  answer the purported charges  and
considering that there are fourteen purported charges, requesting six weeks time in order to enable the Petitioner to answer the said purported charges. A true copy of theaforesaid letter is
filed herewith marked P4 and pleaded as part and parcel hereof.10.The Petitioner states by letter dated 16 th November, 2012 the Petitioner requested the 13 th Respondent to respond to
the letter of Messrs Neelakandan & Neelakandan, nominated asthe registered Attorneys of the
Petitioner. A true copy of this letter is filed herewithmarked P5 and pleaded as part and parcel hereof.11.Pursuant thereto on 17 th November 2012, the Petitioner personally wrote to the 13
th Respondent informing that the Petitioner received the letter dated 14 th November 2012
of13 th Respondent only around 7 p.m. on 14 th November 2012 allocating the Petitioner
onlyapproximately week’s time to answer 14 purported charges and in the circumstancesrequesting six weeks time be granted in order to enable the Petitioner to answer the 14purported charges. The Petitioner further requested 13 th Respondent to respond to the

letters and grant the time requested. A true copy of this letter is filed herewith markedP6 and pleaded as part and parcel hereof.12.The Petitioner states that pursuant thereto the Petitioner received a letter dated 17 th November 2012 from 13 th Respondent informing the Petitioner that the Select Committeehas ordered 13 th Respondent to inform the Petitioner that -(a)the Petitioner must personally inform the Select Committee whether the Petitioneris appearing personally or by representative;(b)if there is any request the Petitioner can forward such request  after  appearing  before  the  Select  Committee  at  10.30  a.m.  on  23  rd  November
2012;(c)the Select Committee has decided not to accept the letter dated 15 th November2012 sent by Messrs Neelakandan & Neelakandan A true copy of the said letter dated 17 th
November 2012 is filed herewith marked P7 andpleaded as part and parcel hereof.13.The 13
th  Respondent  further  by  letter  dated  19  th  November,  2012  informed  the  Petitioner,to forward any request after appearing before the Select Committee at 10.30 a.m. on 23 rd
November 2012. A true copy of which is filed herewith marked P8 and pleaded as partand
parcel hereof.T HE P ETITIONER NOT AFFORDED SUFFICIENT TIME TO RESPOND TO THE PURPORTEDCHARGES OR TO PREPARE HER DEFENCE 14.The Petitioner states that the purported Select Committee comprising of 2 nd to 12 th Respondents, as communicated by the letter of the 13 th Respondent of 14 th November2012, received by the Petitioner approximately at 7.00 p.m. on 14 th November 2012,arbitrarily and unreasonably only allowed the Petitioner time till 22 nd November 2012 torespond to 14 purported charges.15.The Petitioner states that all of the said 14 purported charges contained several factualmatters on which the Petitioner had to instruct her lawyers for the preparation of theStatement of Defence and the approximate week’s time allowed was grosslyunreasonable and arbitrary.16.The Petitioner states that repeated requests made by the Petitioner personally and throughher lawyers for a reasonable extension time was arbitrarily disregarded by the purportedSelect  Committee,  who  required  the  Petitioner  to  appear  before  the  Select


Committee on 23 rd November 2012 and make the request personally.17.The Petitioner states that in view of no proper procedure laid down for proceedingsbefore the purported Select Committee, the Petitioner faced the risk of not havingpresented a defence in the event the 2 nd to 12 th Respondents refused the request of thePetitioner for further time and in the circumstances through abundance of caution the Petitioner was compelled to send a limited response to the purported charges. True copy

of the said limited response dated 20 th November 2012 is filed herewith marked P9 andpleaded as part and parcel hereof.18.The Petitioner states that on the 23 rd of November,
2012 the Petitioner appeared beforethe purported Select Committee and requested for further
time and was given only a further week’s time despite strong objection of her lawyers who steadfastly maintainedthat one week’s time was not sufficient and that it was impossible to
respond within suchperiod.19.The Petitioner states that the Petitioner only requested a reasonable time to adequatelyand fully answer the purported charges demonstrating that there
was no factual or legal basis for the maintenance of the said purported charges and the farcical nature thereof. In the circumstances, the Attorneys-at-Law for the Petitioner sent another
letter dated 29 th November 2012 requesting further time. A true copy of the same is filed herewithmarked P9(a) and pleaded as part and parcel hereof.20.The Petitioner states that on 4
th December, 2012, which was the next date of inquiry, therequest of the Petitioner for further time was refused by the 2 nd Respondent. 21.The Petitioner states that pursuant thereto on 6 th  December  2012,  which  was  the  next  dateat  about  4  p.m.  during  the  course  of  the
proceedings of the purported Select Committee, abundle of (over 80) documents which contained over 1,000 pages was handed over to theCounsel of the Petitioner. The Petitioner
states that the request of the Counsel for the Petitioner for a reasonable time to study the said documents and prepare for the inquirywas wrongfully, unlawfully and arbitrarily refused by the 2 nd to 8 th Respondents and the Petitioner was informed that the inquiry into the charges
1 and 2 would be taken up forinquiry on the next day, namely 7 th December, 2012 at 1.30 p.m. True copies of the proceedings of 23 rd November 2012, 4 th December 2012, 6 th
December 2012 and 7 th December 2012 and the aforesaid documents handed over to the Petitioner are markedP10(a), P10(b), P10(c), P10(d) and P11 respectively and are filed and pleaded as partand parcel of this petition.22.The Petitioner states that in the circumstances, the
Petitioner was not given sufficienttime to prepare her defence and that the 2 nd to 8 th
Respondents acted wrongfully, unlawfully and arbitrarily and in breach of the principles of natural justice. B IAS 23.The Petitioner states that Hon. Dr. Rajitha Senaratne (the 5 th
Respondent) and Hon. Wimal Weerawansa (the 6 th Respondent) were apparently biased
against the Petitioner and therefore the Petitioner in her limited Response objected to the said
5 th and 6 th Respondents sitting in the Select Committee.Hon. Rajitha Senaratne (the 5 th Respondent) 24.The Petitioner states that (a)on or about 26/08/2011, Dr. Sujatha Senaratne, the  spouse  of  the  5  th  Respondent,instituted  a  Fundamental  Rights  Application  in  the Supreme Court bearing No. SCFR 357/2011;

(b)after hearing the parties, the said application of Dr. Sujatha Senaratne was dismissed on 26 th March 2012 by a bench of the Supreme Court presided by thePetitioner. True copy of the said proceedings in SCFR 357/2011 is filed herewith marked P12 andpleaded as part and parcel hereof.25.The Petitioner states that during the proceedings of the Select Committee there wasapparent bias on the part of the 5 th Respondent and consequently the Counsel for the Petitioner during the proceedings of 4 th December 2012 vehemently objected to the 5 th Respondent taking part in the Select Committee proceedings. 26.The Petitioner states that after such submissions were made by the Counsel on behalf ofthe Petitioner, the 5 th Respondent made the following observations which are set out in summary, during the course

of the proceedings(a)the Petitioner has heard another case when the 5 th Respondent was the Minister of Lands and held that case also against the 5 th Respondent;(b)the 5 th Respondent as a Member of Parliament objected to the appointment of the Petitioner as a Judge of the Supreme Court;(c)the 5 th Respondent criticized not only the appointment of the Petitioner but alsothe person who backed her – the Hon. (Prof.) G.L. Peiris;(d)the 5 th Respondent reminded Hon. (Prof.) G.L. Peiris at the Parliamentary Groupmeeting about the criticism;27.The Petitioner states that in the circumstances the 5 th Respondent was clearly and patentlybiased against the Petitioner.Hon. Wimal Weerawansa (the 6 th Respondent)
28.The Petitioner states that the Petitioner objected to the 6 th Respondent on the ground of bias as set out in her limited statement of defence and also during the proceedings of theSelect
Committee there was apparent bias also on the part of the 6 th Respondent andconsequently
the Counsel for the Petitioner during the proceedings of 4 th December 2012 objected to the 6 th Respondent taking part in the Select Committee proceedings. 29.The Petitioner states that the 6 th Respondent has made statements in the media thatunequivocally demonstrate that the
6 th Respondent is clearly predisposed towards an adverse finding against the Petitioner including(a)report in the Sri Lanka Mirror citing the 6 th Respondent as stating that theimpeachment motion was brought against the Petitioner in order to end a clashbetween the executive and the legislature, which clash was precipitated by theSupreme Court communicating a Determination of the Court to the 13 th Respondent, the Secretary General of Parliament, instead of the 1 st Respondent and the said allegation forms part and parcel of the charges against the Petitioner.

(b)an interview given to the Rivira newspaper, wherein the 6 th Respondent indicatesthat the executive would have to take steps to neutralize a perceived conflict between the judiciary and the executive.(c)media reports that the 6 th Respondent and/or the political party of the 6 th Respondent has delayed preferring an application to the Supreme Courtchallenging the 13 th  Amendment  in  view  of  the  pending  impeachment  motion  True  copies  of  the  said newspaper reports are filed herewith collectively marked P13and pleaded as part and parcel hereof.30.In the circumstances Hon. Wimal Weerawansa was clearly and patently biased againstthe  Petitioner.31.The  Petitioner  states  that  on  6  th  December  2012,  the  2  nd Respondent informed thePetitioner that the Committee is not accepting the objection against the 5 th and 6 th Respondents on the grounds of bias, without giving any reasons for the said decision. The Petitioner states that though the 2 nd Respondent indicated that he would be giving thereasons for the decision subsequently, no reasons have been given to the Petitioner for thesaid decision thus far. 32.The Petitioner further states that the 9 th to 12 th Respondents expressly states that theywere not consulted regarding the said decision and in the circumstances it is apparent thatthe 2 nd to 8 th Respondents have on their own made the said decision disregarding and without consulting the 9 th to 12 th Respondents who are members of the purported Select Committee. N O PROCEDURE LAID DOWN 33.The Petitioner states that the Petitioner was not informed of the procedure intended to be followed by the Select Committee despite repeated requests of the Counsel for thePetitioner.34.The Petitioner states that the 2 nd to 8 th Respondent, without consulting or the concurrence of the 9 th to 12 th Respondents, were adopting ad hoc and arbitrary procedure unknown to law with regard to (a)the production and admission of the documents; (b)proof of such documents; (c)burden of proof; (d)lists of witnesses ;(e)admission of evidence etc.35.The Petitioner states that the 2 nd to 8 th Respondents were consistently taking decisions without even consulting the 9 th to 12 th Respondents who were also members of thepurported Select Committee and the said 9 th to
12 th Respondents were openly critical ofsuch behavior of 2 nd to 8 th Respondents.
N O L IST OF W ITNESSES 36.The Petitioner states that (a)the lawyers representing the
Petitioner repeatedly requested the purported Select Committee for a list of witnesses and


documents for the Petitioner to prepare forthe examination of such witnesses and but were not given. (b)despite such repeated requests the list of witnesses was not provided to thePetitioner and as far as the Petitioner gathered from the proceedings the 9 th to 12 th Respondent were also unaware as to whether any witnesses were being called togive evidence.(c)during the course of the proceedings of the purported Select Committee on 6 th December 2012, at about
4 p.m., a bundle of (over 80) documents which containedover 1000 pages was handed over to the Counsel of the Petitioner and despite the request of the Counsel for the Petitioner for a
reasonable time to study the saiddocuments and prepare for the inquiry, the Petitioner was
informed that theinquiry into the charges 1 and 2 would be taken up for inquiry on the very nextdate, namely 7 th December, 2012 at 1.30 p.m.(d)the Petitioner was further informed that
there would be no oral testimony inrespect of the above documents and despite the objection
of the Counsel for the Petitioner that documents has to be produced through witnesses and from propercustody the said submission was disregarded by the 2 nd to 8 th Respondents.B URDEN OF P ROOF 37.The Petitioner states that the Petitioner was not given the right or the opportunity of cross examining the accusers or any of the witnesses by producing the documents through the13 th Respondent.38.The Petitioner further states that the 2 nd to 8 th Respondents in clear violation of Article13(5) of the Constitution informed the Petitioner citing Standing Order 78A(5) that the burden of disproving was on the Petitioner.R EQUEST FOR P UBLIC H EARING 39.The Petitioner states that the Counsel for the Petitioner in view of the ad hoc and arbitrarymanner in which the 2 nd to 8 th Respondent were conducting the proceedings  of  thepurported  Select  Committee  requested  a  public  hearing,  waiving  the secrecy provision contained in Standing Order 78A(8) drawing the attention to the fact that the said provision is so included to protect the Respondent Judge.40.The Petitioner states that the said request of the Petitioner was refused by the 2 nd Respondent.

41.(a)The Petitioner then requested that there should be observers present at the inquiryand that the presence of the observers will not violate the secrecy provision. (b)The Petitioner further submitted that the Select Committee could use its discretionin deciding who the observers should be and suggested that the observers shouldinclude inter alia the Bar Association of Sri Lanka and the International BarAssociation.42.The Petitioner states that the said request for observers was also refused by the 2 nd Respondent.43.The Petitioner states that it was important that the proceedings be open to the public sothat the public and interested parties will be able to gauge or determine the manner and procedure followed.D ECISIONS TAKEN BY THE C HAIRMAN ( THE 2 ND R ESPONDENT )44.The Petitioner states  that  decisions  were  taken  by  the  2  nd  Respondent  sometimes  withoutproper consultation  and  in  some  instances  without the knowledge  of the members of  theSelect Committee, especially the 9 th to 12 th Respondents.45.The Petitioner further states that the Chairman has instructed the 13 th Respondent to call for documents which instructions have been made without the knowledge of all the members of the Select Committee.46.The Petitioner pleads that in the circumstances the procedure followed is unlawful,unreasonable, arbitrary and capricious.T HE P ETITIONER WAS INSULTED 47.The Petitioner states that the Petitioner was insulted by several Government members ofthe PSC, and the Petitioner files herewith a true copy of the letter dated 14/12/2012 sentby her lawyers to the Hon. Speaker marked P14 and pleads as part and parcel hereof.48.The Petitioner pleads that the statements  made  by  the  Government  members  of  the  PSC  were  clearly  actuated  by  a prejudged  mind  and  were  clearly  manifested  such  prejudgedstate  by  the  conduct  and utterances made.W ALK OUT BY THE P ETITIONER 49.The Petitioner states that –(a)117 members who signed the impeachment motion come under the jurisdiction ofthe government whip;(b)2  nd  to  8  th  Respondents  who  constituted  a  majority  of  the  Select  Committee


comeunder the government whip ;(c)the government whip is a member of the cabinet which is under His Excellencythe President to whom the motion for impeachment would be submitted;

(d)majority of the Members of the Parliament come under the government whip.50.The Petitioner states that the 2 nd to 8 th Respondents were conducting the proceedings of the purported Select Committee in an unreasonable, unlawful, ad hoc, manifestly unfairand an arbitrary manner in beach of the principles of natural justice. 51.The Petitioner states that it was apparent that the 2 nd to 8 th Respondents had prejudged thecase and were in a hurry to find the Petitioner guilty. 52.The Petitioner states that it became apparent that the Petitioner would not receive justicein the Select Committee and in the circumstances set out above the Petitioner and herlawyers walked out of the proceedings of the purported Select Committee on 6 th December 2012 at approximately 5.50 p.m.A FTER THE WALK OUT  53.The Petitioners Attorneys at Law sent a letter dated 7 th December 2012 to the 1 st Respondent inter-alia, requesting that further action be deferred until an independent andimpartial panel is appointed to inquire into the allegations. The Petitioner further reiterated that the Petitioner is absolutely innocent of the allegations and is convinced that the Petitioner will be exonerated of any wrongdoing by an independent and impartialtribunal. A true copy of the same is filed herewith marked P15 and pleaded as part andparcel hereof.54.The Petitioner states that the Petitioner is made aware that the purported SelectCommittee has met as scheduled at 1.30 p.m. on 7 th December, 2012 and that at the said meeting the 9 th to 12 th Respondents have stated  tabling  a  letter  to the  Select  Committeethat(a)the  Petitioner  was  not  afforded  the courtesies and privileges due to the office of Chief Justice;(b)it is the duty of the Select Committee to maintain the highest standards of fairnessin conducting the inquiry;(c)the treatment meted out to the Petitioner was insulting and intimidatory and the remarks made were very clearly indicative of preconceived findings of guilt(d)the 9 th to 12 th Respondents are of the view that the Committee should beforeproceeding any further lay down the procedure the Committee intends to follow inthis inquiry;(e)give adequate time for the Petitioner and her lawyers to study and review the documents tabled(f)afford the Petitioner privileges necessary to uphold the dignity of the office of Chief Justice 55.The Petitioner states that the Petitioner learnt from newspaper reports that pursuantthereto the 9 th to 12 th Respondents have withdrawn from the Select Committee due to the refusal of the 2 nd to 8 th Respondents to accede to the aforesaid request made by the 9 th to

12 th Respondents. A true copy of the press statement issued by the Opposition membersis filed herewith marked P16 and pleaded as part and parcel hereof.56.The Petitioner states that after the Petitioner walked out of the proceedings, and after the withdrawal of the 9 th to 12 th Respondents from the proceedings, the 2 nd to 8 th Respondents in an about face hurriedly summoned and examined 16 witnesses during thecourse of 7 th December 2012 sitting till
8.50 p.m. 57.The Petitioner states that upon the withdrawal of the 9 th to 12 th Respondents, four vacancies are created in the purported Select Committee appointed by the 1 st Respondentand in the circumstances the said purported Select Committee became functus officio. The Petitioner reiterates that there is no provision in the Standing Orders of theParliament for a purported Select Committee appointed under Standing Order 78A tocontinue functioning notwithstanding any vacancy created in such Committee.58.The Petitioner states that notwithstanding the vacancy created by the withdrawal of the9 th to 12 th Respondents as aforesaid the 2 nd to 8 th Respondents wrongfully, unlawfullycontinued to function ultra vires of the Standing Orders of the Parliament.C ALLING OF W ITNESSES BY THE 2 ND TO 8 TH R ESPONDENTS 59.The Petitioner states that the Petitioner was not informed of any decision by the purportedSelect Committee to call any witnesses during the proceedings of 6 th December 2012 until the withdrawal of the Petitioner from the said

proceedings at approximately 5.50p.m. The Petitioner states that despite the repeated requests of  the  Counsel  for  the  Petitioner,  even  on  6  th  December  2012,  the  purported  Select Committee or the 2 nd to 8 th Respondents did not inform the Petitioner that the Select Committee  was  calling  anywitnesses  on  7  th  December  2012  and  did  not  provide  the Petitioner with a list ofwitnesses. The Petitioner states that the Petitioner was in fact specifically informed thatno witnesses would be called by the purported Select Committee since all evidence are documentary and that the burden was on the Petitioner to disprove the charges by callingwitnesses. 60.The Petitioner verily believes that 9 th to 12 th Respondents were unaware of any suchdecision by the 2 nd to 8 th Respondents to call witnesses prior to their withdrawal from the proceedings on 7 th December 2012 despite being members of the said purported Select Committee.61.In fact, the Petitioner verily believes that these witnesses were summoned at the eleventh hour knowing well that they will not be cross-examined, because the Petitioner had walked out of the proceedings. 62.The Petitioner states that on 8 th December 2012 the 2 nd to 8 th Respondents have compiled a purported report wrongfully, unlawfully and unconstitutionally finding the Petitionerguilty of charges 1, 4 and 5. A true copy of the said Purported Report is filed herewithmarked P17 and pleaded as part and parcel hereof. The Report was available only on the 17/12/2012 in the afternoon. The Petitioner specifically pleads that the Petitioner was notgiven what was called the minutes of the tribunal and /or the deliberations of theCommittee at any given time while the Petitioner was participating at the inquiry.

63.The Petitioner states that the said purported finding of guilt of the Petitioner by the 2 nd to8  th  Respondents  of  charges  1,  4  and  5  is  wrongful,  unlawful,  against the  weight  of theevidence and without any legal or factual basis.64.The petitioner states in her response she asked for details/particulars of the several charges which the Respondents refused to give.C HARGE N UMBER 165.The Petitioner states that the Charge No. 1 against the Petitioner reads  as  follows;“Whereas  by  purchasing,  in  the  names  of  two  individuals, i.e.  Renuka NiranjaliBandaranayake   and   Kapila   Ranjan   Karunaratne   using   special   power   of attorneylicence  bearing  No.  823  of  Public  Notary  K.B.  Aroshi  Perera  that  was  given byRenuka Niranjali Bandaranayake and Kapila Ranjan Karunaratne residing at No. 127, Ejina Street, Mount Hawthorn, Western Australia, 6016, Australia, the housebearing No. 2C/F2/P4 and assessment No. 153/1-2/4 from the housing scheme located at No. 153, Elvitigala Mawatha, Colombo 08 belonging to the company thatwas known as Ceylinco Housing and Property Company and City Housing and Real Estate Company Limited and Ceylinco Condominium Limited and is currently knownas Trillium Residencies which is referred in the list of property in the case offundamental rights application No. 262/2009, having removed another bench of theSupreme Court which was hearing the fundamental rights application cases bearingNos. 262/2009, 191/2009 and 317/2009 filed respectively in the Supreme Court against  Ceylinco  Sri  Ram  Capital  Management,  Golden  Key  Credit  Card  Companyand Finance and Guarantee Company Limited belonging to the Ceylinco Group ofCompanies and taking up further hearing of the aforesaid cases under her court andserving as the presiding judge of the benches hearing the said cases” 66.The Petitioner states that:(a)(i)the aforesaid housing unit bearing No. 2C/F2/P4 and assessment No. 153/1-2/4 Trillium Residencies was not purchased by the Petitioner and/or using the special power of attorney bearing No. 823 of Public Notary K.B. Aroshi Perera;(ii)the said property was purchased by Renuka Niranjali Bandaranayake and Kapila Ranjan Karunaratne by the monies remitted by Renuka NiranjaliBandaranayake and Kapila Ranjan Karunaratne from Australia.The Petitioner files herewith  the  documentation  from the  bank  in  evidence  thereofmarked  P17(c)  to  P17(o) respectively and pleads as part and parcel hereof.(b)(i)as far back as 6 th May 2010, (i.e. nearly 16 months prior to the Petitioner hearing the case) the sale of housing units of the


Trillium Residencies had been excluded from the Fundamental Rights Application bearing
No. 262/2009.

The Petitioner sets out hereunder an extract of the proceedings of 6 th May2010 which reads as follows-“ The Court also directs the Committee of Chartered Accountants topursue all negotiations for the sale of other properties by advertising and calling for quotations with a view to obtaining the highest goingprices on these properties.No properties to be alienated without the express permission of this Court. For the moment, …the properties to bedisposed would be:-(1) pioneer tower (head office building)(2) trillium residencies (sale of housing units)(3) celestial residencies…”(ii)no permission of Court has been sought in relation to sale of the saidhousing units of Trillium Residencies after 6 th May 2010, despite a number of such housing units of Trillium Residencies being sold.(c) the  Petitioner  did not remove another  bench  that  was  hearing  the  Fundamental  Rights  Application  cases  bearing  Nos.
262/2009, 191/2009 and 317/2009..67.(a)The Petitioner states that by Deed No.2876 dated
12/05/2012 attested by D.A.P.Weeratne Notary Public, an apartment of Trillium Residencies bearing No.1C/F7/P4 was transferred to the former Chief Justice J.A.N. De Silva and his daughter R.K.I. de Silva Balapatabendi.(b)The Petitioner states that to the best of her knowledge no permission was sought,obtained or required for the transfer of the said premises.68.In the circumstances the Petitioner states that it was known and accepted that after theaforesaid order and the other orders made by a Bench presided by Justice ShiraneeTilakawardane no permission of the Supreme Court was necessary for the transfer of thesaid property (Trillium apartments).69.In the circumstances the Petitioner states that as at the date the case came  before a  benchof  which she  presided all apartments in Trillium Residencies could be transferred without the permission of the Supreme Court.70.In the circumstances, the Petitioner states that being guilty of the charge is ex faciewrong.71.The Petitioner states that her sister did not receive any special concession. The concessions of purchase price may have been offered and taken by several of the purchasers and no special concessions offered to the Petitioner’s sister.72.The Petitioner states for the aforesaid reasons finding of guilt against her cannot besustained.73.Without prejudice to the aforesaid the Petitioner states that herewith the following.74.The Petitioner states that(a)a motion was filed by adepositor /intervenient –petitioner in SCFR 191/2009 on orabout 19/08/2011 asking that a bench of 5 Judges be constituted;

(b)when the matter was referred to Justice Shiranee Tilakawardane, Justice Shiranee Tilakawardane referred the same to the Petitioner;(c)in the circumstances , the Petitioner referred it back to the same benchvthat heardthe case , thereafter the matter was never referred to the Petitioner forconsideration of whether a Bench of five Judges should be constituted(d)that Justice Shiranee Tilakawardane did not refer the matter to the Petitioner for a constitution of a Bench of five Judges and there was no such minute in the file.(e)In the circumstances the constitution of the Bench of five Judges never came upbefore the Petitioner.(f)In the circumstances the order of the Select Committee is ex facie wrong.75.The Petitioner states further in answer to the said charge without prejudice to theaforesaid.76.The Petitioner   states   that   –(a)there   were   several   allegations   against   Justice   Shiranee Tilakawardane which is notrelevant to be repeated here.(b)Judges refused to sit with Justice Tilakawardane in this matter as is evidenced bythe evidence of Justice Tilakawardane.(c)further allegations were made that Justice Tilakawardane met with some membersof the Watawala Commission alone in her chambers without any of the otherJudges and/or any counsel and that neither counsel nor other Judges were aware ofthe discussion.(d)The  Petitioner further states  that the Watawala  Commission had  been  paid approximately Rs.40 million allegedly for work done. This money was in factmeant for
repayment to depositors.77.In the aforesaid circumstances the Petitioner having considered all the facts and circumstances and after having consulted senior Judges of the Supreme Court, constituteda Bench chaired by her with two other senior judges to hear and determine the case.78.The Petitioner pleads that at no time did any person protest that the case was taken out ofJustice Tilakawardane and or heard by her. 79.The Petitioner states (a)that case came up on several occasions. (b)Several hundred depositors were present in court (c)most if not all depositors were represented by Counsel. (d)The Respondents were represented by counsel,(e)the Watawala Commissioners were present in court, (f)the Hon. Attorney General was represented. (g)None of such persons ever protested that the case was either wrongfullytaken and/or that it should not be heard by the Petitioner.

80.In the circumstances, the Petitioner states that it is not only wrongful but also maliciousto conclude that the Petitioner wrongfully took over the case.81.In any event the Petitioner states that to the best of the Petitioner’s recollection a Benchpresided by the Petitioner did not alter in any way the orders previously made.82.The Petitioner further states that the Petitioner did not make any order except purelyroutine orders in the said case.83.In these circumstances the Petitioner states that the taking of the case was not only notwrongful but correct and in any event did not in any way or manner affect the purchaseof the premises by her sister.84.The Petitioner states that in the aforesaid circumstances, the alleged finding of the 2 nd to8 th Respondents that the Petitioner is guilty of the aforesaid Charge 1 is wrongful, unlawful, arbitrary, against the weight of the evidence and without any legal or factualbasis.C HARGE N UMBER 485.The Petitioner states that Charge No. 4 against the Petitioner reads as follows;“Whereas,  by  not  declaring  in  the  annual  declaration  of  assets  and  liabilities thatshould be submitted by a judicial officer the details of more than twenty bankaccounts maintained  in  various  banks  including  nine  accounts  bearing  numbers106450013024,
101000046737,        100002001360,        100001014772,        100002001967,100101001275,
100110000338, 100121001797 and 100124000238 in the aforesaid branch of NDB Bank”86.The Petitioner states that the 13 th Respondent wrote to almost all commercial banksinquiring about the Petitioner’s Accounts and the evidence revals that the Petitioner from 2010 had no operative accounts in any other bank except the NDB Bank.87.In the circumstances the charge that the Petitioner had accounts in various banks isincorrect.88.Furthermore the evidence reveal that as at 31 st March 2012 the Petitioner had only 4active/operative accounts and that the NDB Bank had maintained 2 routing accounts as per the standard internal banking practice at the NDB Bank in the name of the Petitioneras morefully explained hereinafter. 89.The purported Report does not set out how many Bank accounts the Petitioner had. ThePetitioner sets out hereinunder from paragraph 92 onwards the accounts mentioned in the charge.90.The Petitioner sets out hereinunder the bank account dealt in the report.91.In the circumstances it is apparent that the Petitioner has made true and correctdeclaration of assets and liabilities.

92.The Petitioner states that of the accounts referred to in the above Charge No. 4:(a)Account No. 106450013024 was opened on or about 6th April 2011 with NationalDevelopment Bank PLC (NDB Bank) and has been duly declared in the relevantdeclaration of Assets and Liabilities dated 31 st March 2012.(b)Account No. 101000046737 had been duly declared in the  relevant  declaration  of  Assets  and  Liabilities  of  the  Petitioner.  (c)Account  No.
100002001360 is a Special Current Account created by NDB Bank for the purpose of routing investments. (d)Account No. 100001014772 is an old Account No. which has been migrated dueto a IT System change by NDB Bank to Account No. 10100046737 referred toabove. (e)Account No. 100002001967 is a Special Current Account created by NDB Bank PLC for the purpose of routing investments. (f)Account No. 100101001275 had been closed by the

Petitioner in the year 2008.(g)Account No. 100110000338 is an old Account No. which has been migrated dueto a IT System change by NDB Bank to Account No. 106160005893 referred toabove and has been duly declared by the Petitioner. (h)Account No. 100121001797 is an old Account No. which has been migrated byNDB Bank to Account No. 106450000542 and has been declared by thePetitioner. (i)Account No. 100124000238 is an old Account No. which has been migrated byNDB Bank to Account No. 106450013024 referred to above and has been declared by the Petitioner.93.The Petitioner states that of the 9 accounts referred to in the Charge No. 4, (a)there is in truth and in fact only 7 accounts whilst the other 2 accounts are old account numbers of 2 of the Accounts migrated due to a IT System change byNDB Bank. (b)of the said 7 accounts, 2 are special routing accounts (as opposed to regular current accounts) maintained by the NDB Bank for investment purposes in termsof standard internal banking practice at the NDB Bank and these are not regular current accounts. These routing accounts could be operated only by the NDB Bank as and when necessary. When the investments mature the funds will be credited along with the interest and thereafter the capital and the interest will be re-invested by the Bank as per the standing instructions of the customer based onthe financial advice given by the NDB Bank with regard to the investment. The Petitioner verily believes the funds in the account are credited to the account at the end of an investment cycle when the matured investment is credited pendingreinvestment and during the maturity period of the investment these routing accounts carry zero balances. (c)1 other account bearing No. 1001011001275 has been closed in 2008.

(d)thus only 4 of the 9 Accounts referred to in the said Charge 4, were regular operational Accounts and the Petitioner has duly declared the said Accounts in therelevant Asset Declarations. 94.The Petitioner states that, in the aforesaid purported Report of the 2 nd to 8 th Respondentsthe 2 nd to 8 th Respondent have referred to the following accounts though some of themwere not included in the said Charge 4. The said Accounts are:Account No.
1Account No. 100002001360 is a Special Current Account created by NDB Bank PLC for the purpose  of routing investments.  The  said  Account has  been  migrated  by NDB Bank to Account No. 10111002058. (Account No. 7 referred to below)Account No. 2Account No.
100002001967 is a Special Current Account created by NDB Bank PLC for the purpose of routing investments. The said Account has been migrated by NDB Bank to Account No.
10110002778. Account No. 3Account No. 100121001797 has been migrated by NDB Bank to
Account No.106450000542. This account is an account in US Dollars which was opened on 2 nd September 2008 and the money was transferred to a fixed deposit in 2009. The fixed
deposit was duly declared in the declaration of Assets and Liabilities. Thisaccount had zero
balance from 2009. Account No. 4Account No. 106110012694 was opened on 26 th April
2012 and thus could nothave been declared in any of the declaration of assets and liabilities. Account No. 5Account No. 106110012128 was opened on 20 th April 2012 and thus could nothave  been  declared  in  any  of  the  declaration  of  assets  and  liabilities.  Account  No.
6Account No. 100124000238 has been migrated by NDB Bank to Account No.106450013024 was opened on 6 th April 2011 and was declared in the declarationof Assets and Liabilities as
at 31 st March 2012. The said Account could not havebeen declared in the declaration of as at
31  st  March  2011  because  it  was  opened  inApril  2011.  Account  No.  7Account  No.
1001110002058 is the migrated Account No. 100002001360 referred to under Account No. 1 above.  Account  No.  8Account  No.  100100039660  has  been  migrated  by  NDB  Bank  to Account No.106000134433 and has been duly declared in the Declarations of Assets andLiabilities for the years ending 31 st March 2010, 2011 and 2012. As is evidentfrom the Report itself and should have been evident to anyone who read the reportthat the transactions in the said Account commenced in November 2009 and thuscould not have been declared in years ending 31 st March 2007 or 2008.


95.The Petitioner states that of the 8 accounts referred to above(a)Account No. 7 is the new Account Number of the migrated and redundant oldaccount referred to under Account No. 1. (b)Accounts 1, 2 and 7 are special routing accounts ( 1 and 7 being the same) maintained by the NDB Bank for investment purposes as per standard internal banking practice of the NDB Bank as morefully described above. The said Accounts do not form part of the Assets or liabilities of the Petitioner as the said Accounts maintained by the NDB Bank as per internal banking practice. ThePetitioner states that the Petitioner has duly declared the Investment Assets relating to such routing accounts in the relevant Asset Declarations under the category of ‘Treasury Bills’. (c)Accounts 4 and 5 were opened in the year 2012 and therefore could not have beendisclosed in any Asset Declaration. (d)Accounts 3, 6 and 8 have been duly declared in the relevant Asset Declarations. 96.The Petitioner categorically states that the evidence reveal that the Petitioner hasdisclosed all her assets and liabilities and the said evidence does not  disclose  any  asset  and/or  liability  not  declared  by  the  Petitioner  in  the  relevant Declarations of Assets and Liabilities of the Petitioner.97.The Petitioner states that the 2 nd to
8 th Respondents have wrongfully concluded that thePetitioner had not disclosed the routing accounts  maintained  by  NDB  Bank  withoutproperly  understanding  the  nature  of  such
accounts. The Petitioner reiterates that the Petitioner has duly declared the Investment Assets
relating to such routing accounts in the relevant Asset Declarations. 98.The Petitioner further states that the 2 nd to 8 th Respondents have wrongfully concludedthat the Petitioner has not disclosed Accounts 4, 5, and 8 referred to in the purported Report which were not in operation by reason that the Petitioner has only opened suchaccounts after such relevant date of disclosure in the respective years. The Petitionerannexes hereto marked P18 the letter dated
19 th November 2012 addressed to Messrs Neelakandan & Neelakandan by NDB Bank setting out the details of bank accounts held by the Petitioner.99.The Petitioner states that in the  circumstances the  evidence  cogently establish  that  the  Petitioner  has  duly,  properly, truthfully and correctly disclosed all assets and liabilities as at the end of each reporting period as required by law. 100. The Petitioner states that the purported report of the 2 nd to 8 th Respondents has:(a)failed to consider that the evidence reveal that(i)the Petitioner, in fact had only Six (6) bank accounts with NDB Bankincluding 2 accounts opened after 31 st March
2012.(ii)the Petitioner did not have and/or maintain 20 bank accounts.

22 (iii) the Petitioner has not had any operative accounts in any bank other than theNDB Bank since  2010.(b)wrongfully concluded that the  evidence that(i)the Petitioner  maintained  13 accounts with NDB Bank.(ii)the Petitioner has not disclosed all operative bank accounts of the Petitionerin the relevant Declarations of Assets and Liabilities of the Petitioner.101. In the circumstances, the Petitioner states that(a)the said Charge 4 annexed to document marked P3 has not been duly proved. (b)the Petitioner is ex facie not guilty of Charge 4 annexed to document marked P3. 102. In the said circumstances the alleged finding of the 2 nd to 8 th Respondents  that  thePetitioner  is  guilty  of  the  aforesaid  charge  is  wrongful,  unlawful, arbitrary and against theweight of the evidence and without any legal or factual basis.103. For more clarity and transparent the Petitioner states that the Petitioner has duly ,properlyand correctly declared all her assets and investments  in the relevant  assets and liabilitiesdeclarations and in any event the Petitioner could not have declared the investments inthe routing accounts under accounts catagory for the simple reason the Petitioner has to declare her investments under investments category. If the Petitioner was to declare the transactions in the routing accounts, there would have been duplicate (double) entries.C HARGE N UMBER 5104. The Petitioner states that Charge No. 5 against the Petitioner reads as follows;Whereas, Mr. Pradeep Gamini Suraj Kariyawasam, the lawful husband of the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala MudiyanseRalahamilage Shirani

Anshumala Bandaranayake is a suspect in relation to legalaction initiated at the Magistrate’s Court of Colombo in connection with the offencesregarding acts of bribery and/or corruption under the Commission to Investigate intoAllegations of Bribery or Corruption Act, No 19 of
1994;Whereas,  the  post  of  Chairperson  of  the  Judicial  Service  Commission  which  is vestedwith powers to transfer, disciplinary control and removal of the Magistrate of the said
court which is due to hear the aforesaid bribery or corruption case is held by the said Hon.
(Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala MudiyanseRalahamilage Shirani Anshumala Bandaranayake as per Article 111D (2) of the Constitution;Whereas, the powers to examine the judicial records, registers and other documentsmaintained by the aforesaid court are vested with the said Hon. (Dr.) (Mrs.) UpatissaAtapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani AnshumalaBandaranayake under Article 111H (3) by virtue of being the Chairperson of theJudicial Service Commission;Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala MudiyanseRalahamilage Shirani Anshumala Bandaranayake becomes unsuitable to continue in the office of the Chief Justice due to the legal action relevant to the allegations of bribery and corruption levelled against Mr. Pradeep Gamini  Suraj  Kariyawasam,  the  lawful  husband  of  the  said  Hon.  (Dr.)  (Mrs.)  Upatissa Atapattu  Bandaranayake  Wasala  Mudiyanse  Ralahamilage  Shirani  Anshumala Bandaranayake in the aforesaid manner, and as a result of her continuance in the office of the Chief Justice,administration of justice is hindered and the fundamentals of administration of justiceare thereby violated and whereas not only administration of justice but visibleadministration of justice should take place;105. The Petitioner states that ex facie the said Charge is bad in law and cannot be sustained since the said charge probabilities and surmises and not on any factual occurrences. 106. The Petitioner categorically states that there was no matter concerning the ChiefMagistrate that came up before the Judicial Services Commission after the Petitioner’s husband was charged in the Magistrate’s Court. 107. The Petitioner further states that the said purported charge cannot in any event be a ground for proved misbehaviour in the absence of any allegation that the Petitioner has infact conducted herself in a manner unbecoming of a Judge of the Superior Courts inrelation to the said Charge. 108. Without prejudice to the above, the Petitioner states that ex facie the finding of the Select Committee are false, based on probabilities and surmises, wrongful, unlawful, against the weight of the evidence and without any legal or factual basis. 109. The Petitioner states that the purported report of the 2 nd to 8 th Respondents have concluded that there is insufficient evidence to find the Petitioner guilty of charges 2 and 3 and therefore the 2 nd to
8 th Respondents have not come to any conclusion with regard tothe said charges. 110. In the circumstances the Petitioner states that despite the aforesaid arbitrary investigation conducted ex parte by the 2 nd to 8 th Respondents, without adhering to the rule of law and principles of natural justice, on the own admission of the 2 nd to 8 th Respondents there is insufficient evidence even by the very negligible standard proof adopted by the saidRespondents to establish the said charges 2 and 3 relating to an alleged sum of Rs. 34 Million in foreign currency being received by the Petitioner, which the Petitioner hasallegedly not declared in the relevant asset declarations. 111. The Petitioner states that the purported report of the 2 nd to 8 th Respondent have notaddressed the purported charges 6 to 14 and have not come to any conclusion in respectof the said charges. 112. The Petitioner states that thus and otherwise(a)the  purported exercise  of judicial  power by the  Select  Committee appointed under Standing Order 78A is contrary to Article 4(c) of the Constitution;(b)the Petitioner in the limited response dated 20 th November 2012 took up theobjection that the Parliament by standing orders confer itself judicial power and therefore the purported Select Committee has no jurisdiction to hold the purported inquiry.

113. The Petitioner states that the purported exercise of the judicial power by the SelectCommittee is unconstitutional and therefore any findings of the said purported Select Committee has no force or effect in law. 114. In the aforesaid circumstances the Petitioner states that(a)exercise of judicial power by the purported Select Committee is unconstitutional; (b)functioning of the 2 nd to 8 th Respondents as the purported Select Committeenotwithstanding the vacancy created by the withdrawal of the 9 th to 12 th Respondents is wrongful, unlawful and ultra vires of the Standing Orders of the Parliament.(c)the Petitioner was deprived of a fair hearing;(d)In the aforesaid circumstances the Petitioner pleads that the 2 nd to 8 th Respondentsof the Select Committee -(i) failed to adhere to the rule of law ;(ii) breached the rules of natural justice(iii) acted unreasonably, and/or capriciously and/or arbitrarily(iv) had prejudged the issue.115. In the aforesaid circumstances the Petitioner pleads that there had been proceduralirregularity in the manner in which the Select Committee conducted its affairs.116. The Petitioner further states that:(a)the Parliament (Powers and Privileges) Act No. 21 of 1953 as amended affords no protection to the aforesaid unconstitutional and ultra vires acts of the 2 nd to 12 th Respondents complained hereof;(b)the judiciary is the only Institution entrusted with the onerous task of keepingevery organ of State within the limits of the law and thereby making the Rule of Law enshrined in the Constitution meaningful and effective. (c)the Government of Sri Lanka has represented that the decisions of the SelectCommittee appointed under Standing Order 78A would attract judicial scrutiny in the periodic report submitted by the Government of Sri Lanka to the Human Rights Committee appointed under and in terms of the International Covenant onCivil
& Political Rights.117. For a fuller disclosure the Petitioner states that when the impeachment motion was presented to Parliament wide publicity was given to it in the media and therefore thePetitioners Attorneys-at-Law addressed a letter to the media, a true copy of which is filed herewith  marked  P19  and  pleaded  as  part  and  parcel  hereof.118.  The  Counsel  for  the Petitioner also issued statements to the media on or about 07/12/2012 and 12/12/2012, and true copies of which are filed herewith marked P20(a)and P20(b) respectively and pleaded as part and parcel hereof.

The Petitioner also annexes hereto compendiously marked P21 the several documents the Counsel tendered to the Tribunal on 4 th December 2012 marked ‘A1’ to ‘A11(b)’ andpleads the same as part and parcel hereof.120. The Petitioner respectfully states that irremediable mischief and irreparable damagewould be caused to the Petitioner and the independence and the integrity of the judiciaryand to the institutions of justice if the interim order prayed for are not granted. ThePetitioner states that the resolution for the removal of the Petitioner based on the purported report P17 is due to be taken up for debate on 8 th January 2013. 121. The Petitioner respectfully states that the report P17 was available only in the afternoon of the 17 th December 2012, and seeks the indulgence of Court to tender any documents that are necessary and presently not in the hands of the Petitioner at a subsequent stage asand when she obtains the same.122. In the circumstance the Petitioner respectfully states that the Petitioner is entitled to seek;(a)a mandate in the nature of Writ of Certiorari quashing the report of the 2 nd to 8 th Respondents marked as P17.(b)a mandate in the nature of Writ of Prohibition, prohibiting the 1 st Respondent fromacting on and or taking any further steps based on the purported report marked as P17.(c)an Interim Order restraining the 1 st Respondent from acting on and or taking anyfurther steps based on the purported report marked as P17 until the hearing anddetermination of this Application by Your Lordships' Court.123. The Petitioner states that the Petitioner has not previously invoked the jurisdiction ofYour  Lordships'  Court  in  respect  of  the  subject  matter  of  this  Application.  124.  An Affidavit of the Petitioner is appended hereto in support of the averments containedherein. W HEREFORE the Petitioner pleads that Your Lordships' Court be pleased to:(a) issue Notice

on the Respondents;(b) grant a mandate in the nature of Writ of Certiorari quashing the findings and/or the decision of the report of the 2 nd to 8 th Respondents marked as P17 and/or quashing the said report marked as P17;

(c)grant a mandate in the nature of Writ of Prohibition, prohibiting the 1 st Respondentand/or
2  nd  to  13  th  Respondents  from  acting  on  and  or  taking  any  further  steps  based  on thepurported report marked as P17;(d) grant an Interim Order restraining the 1 st Respondent
and/or 2 nd to 13 th Respondents fromacting on and or taking any further steps based on the
purported report marked as P17until the hearing and determination of this Application by
Your Lordships' Court;(e) grant an Interim Order restraining the 1 st Respondent and/or 2 nd to 13 th Respondents fromtaking any further steps consequent to the purported report marked as P17 until the hearing and determination of this Application by Your Lordships' Court;(f) grant an Interim Order staying the effect of the purported report P17 and/or staying anyfurther action based on the said purported report P17;(g) grant costs; and(h) grant such other and further reliefs as to Your Lordships Court shall seem meet.REGISTERED ATTORNEYS FOR THE PETITIONERSettled by:Eraj de Silva Esq.Attorney-at-LawShanaka Cooray Esq.Attorney-at-LawManjuka Fernandopulle Esq.Attorney-at-LawBuddhike Illangatilake Esq.Attorney-at-LawRiad Ameen Esq.Attorney-at-LawSugath Caldera Esq.Attorney-at- LawSaliya K.M. Pieris Esq.Attorney-at-LawNalin Ladduwahetty Esq.President’s CounselJ. Romesh de Silva Esq.President’s Counsel Sc(206)-Petition.doc/Pleadings/Petition

THE JUDICIAL SERVICE ASSOCIATION (JSA) ON THE PARLIAMENTARY SELECT COMMITTEE

A Statement from Judicial Service Association (JSA) of Sri Lanka forwarded by the Asian Human Rights Commission

The Government members of the Parliamentary Select Committee (PSC) appointed to probe the charges contained in the impeachment motion have found the Chief Justice Dr. Shirani Bandaranayake guilty of three charges.

We,  the Judicial  Service  Association  (JSA),as the  sole  representative body of  the judicial officers of Sri Lanka, strongly feeland record its considerable concern that the Chief   Justice   Dr.   Shirani   Bandaranayake   did   not   get   a   fair   hearing   at   the Parliamentary Select Committee (PSC) proceedings in terms natural justice and fair trial in coming to the above finding.

We are of the view that the PSC did not qualify in terms of the constitutional requirements to conduct an inquiry for the removal of a Chief Justice as a genuine tribunal. Such a tribunal must be an impartial judicial body. The composition, procedure and the very conduct of some members of the PSC failed to meet the basic standards expected of an impartial tribunal.

The JSA is extremely concerned and shocked about the fact that the Chief Justice was insulted and humiliated by two members of the PSC forcing the Chief Justice and her lawyers to walk out in protest against this outrageous situation. We are also concerned about the behavior of certain media institutions maintained by tax payer’s money and their conduct in contempt of PSC proceedings and also in contempt of the entire judiciary.

Security of tenure of office of judges is of paramount importance to safeguard the independence of the judiciary. United Nations Basic Principles of the Independence of the Judiciary guarantees to every judge the right to a fair hearing and an independent review of removal proceedings (Item 17 and 20). Article 12(1) of the Constitution guarantees equality and equal protection of the law and, Article 13(5) the presumption of innocence. In the PSC proceedings, the Chief Justice was not allowed to exercise the basic fundamental rights enjoyed by ordinary civilians of this country as enshrined in the Constitution. Chief Justice and her lawyers were not given fair trial guarantees enshrined in the International Covenant on Civil and Political Rights (ICCPR) to which Sri Lanka is a party.

The impeachment process has proceeded against the Chief Justice irrespective of the request made by the Supreme Court to delay proceedings until they make a determination on the question for reference made by the Court of Appeal on constitutionality of Standing Order 78A. The PSC has been appointed disregarding the objections taken on the basis of serious legal grounds – that the removal of a superior court  judge  should  be  preceded by an  inquiry  of  an  impartial  tribunal consisting of judicial officers.

The Mahanayakes and the other religious dignitaries, the academics, professionals, and people from many other walks of life who, in the recent weeks, have expressed considerable concern over the impeachment process and has come under severe attack in Sri Lanka, as well as by authoritative statements from important international sources such as the Commonwealth Secretariat, Commonwealth Association of Judges and Lawyers, the United Nations, International Committee of Jurists,  Law  Asia  and  from  persons  of  high  international  repute,  including  Sri Lanka’s most senior judge Dr. C. G. Weeramantry.

We urge His Excellency the President not to act on the findings of the PSC. We urge the Parliament to enactnecessary legislation or amend the existing Standing Orders in terms of Article 107(3) to ensure setting up of fair, transparent, and impartial tribunal which would guarantee due process to probe the allegations of misbehavior of the Chief Justice and other Apex Court Judges.

Judicial Services Association
14th December 2012

SENIOR MOST JUDGE SEEKS FAIR TRIAL FOR CJ

Justice C. G. Weeramantry, former senior vice president of the International Court of Justice  and  the  Senior  Most  Retired  Judge  in  Sri  Lanka,  said  yesterday  it  was essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing, the Sunday Times reported today.

If any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing, that tribunal ceases to be impartial, Justice Weeramantry said in a statement amidst a growing controversy over the impeachment of Chief Justice Shirani Bandaranayake.

Justice Weeramantry said:

“As the senior-most retired judge in the country and as one who has been associated with the law both locally and internationally for 65 years I feel compelled to make some observations in regard to the current crisis facing the Sri Lankan Judiciary. It is a judiciary which has been a great pride to the country and has been highly esteemed both domestically and internationally.
“An independent judiciary is vital to democracy, for without it citizens lack the basic
protections, without which a democracy cannot exist.
“The concept of judicial independence is not a one way street depending on the judges alone. It needs not only strictly independent judges but also a commitment by the state to respect and protect the independence and security of tenure of judges. “The independence of the judiciary and their security of tenure are hard won rights secured after centuries of struggle against authoritarian regimes. Such hard won rights need considered attention and protection by citizens and governments alike. An independent judiciary is the last bastion of protection of the rights and liberties and the equality and freedom of every citizen.
“The following propositions, which are associated with the independence of the judiciary, are unassailable and require observance and protection in any democratic state.
“In the first place there can be no democracy in a country unless the rule of law prevails at every level from the humblest to the most exalted citizen.
“In the second place the rule of law is not present unless a fair hearing is available to every citizen who is called upon to defend himself or herself before a tribunal on a matter affecting his or her rights.
“In the third place there cannot be a fair hearing unless the tribunal is totally and patently impartial. It is essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing to any conclusion on the matter.
“In the fourth place if any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing that tribunal ceases to be impartial. It follows that such a tribunal is not functioning according to the rule of law.

Asian Human Rights Commission |www.humanrights.asia

“In the fifth place the rule of law demands that every person investigated by a
tribunal has a right;
to be informed of the charges
to know the evidence against him or her
to have a full and fair opportunity to scrutinize that evidence and to respond to it.
“A denial of any of the above factors vitiates the inquiry and its findings. Such an inquiry is a violation of the rule of law, a denial of basic human rights and a negation of democratic principles.
“So  fundamental  and  universal  are  these  principles  that  even  the  Universal
Declaration of Human Rights spells out in Article 10, that ‘everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations …’ Since the Universal Declaration asserted this principle in 1948, there has been extensive development of it over the years in all jurisdictions committed to human rights and the rule of law.

“Where the issues involved are as grave as misconduct of the Chief Justice of a country these general principles of law need to be applied with the greatest strictness that is possible and it is the duty of the inquiring authority to ensure these basic safeguards which human rights demand.

“Traditional constitutional law depends heavily on the principle of separation of powers which gives each of the three organs of government a province of its own, with authority which is to be exercised without fear or favour.

“It is a prerequisite to the rule of law that each of the three organs of government – Executive, Legislature and Judiciary – must act according to the rules and principles set out earlier.

“As  I  have  said  in  many  of  my  writings  and  lectures,  all  three  branches  of government – Executive, Legislature and Judiciary – rest upon the bedrock concept of the rule of law. If the rule of law is not observed, the work of all three organs of government is impaired, with resulting damage to equality and freedom. Every citizen from the lowest to the highest has the right to defend himself or herself before a patently impartial tribunal and with full knowledge of the evidence against him or her and with a full opportunity of scrutinizing and refuting it.

“In short unless all these principles are observed in an inquiry where security of judicial tenure is involved, there is profound damage to the independence of the judiciary with a resulting undermining of the rule of law and of democracy itself.

“This should be a cause of concern to every citizen and every institution in the
country.”

THE JOINT STATEMENT OF THE JUDGES

(A translation from Sinhala)
December 3, 2012

As judicial officers our attention has been drawn to the manner in which inquiries are being conducted about the charges in the impeachment motion brought against the Chief Justice. As it appears to us there is behaviour in the media which is disrespectful of the Chief Justice as well as the judiciary.

Therefore we recommend that all the defamatory statements made by such media against the judiciary should stop.

We request that attention must be paid to the great harm that such defamatory statements will cause to the Chief Justice and also collectively to the judiciary thereby causing the rule of law to break down which will result in serious harm.

We also propose that the inquiries conducted against the Chief Justice should be made impartially and with transparency.

We would also like to draw attention to the fact that the appointment of a committee consisting of seven persons from the group that made the charges and four persons from another party for inquiring into charges violates the principles of natural justice and in no country does the party that makes the charges themselves inquire into the same charges.

We would have to raise the question as to what examples do we provide to the world through the removal of the Chief Justice of this country in this manner.

Signed

The Judges Association of the High Court The Judges Association of the District Court The Association of the Magistrates, and
The Association of the Labour Tribunals

SPEAKER REJECTS SUPREME COURT DECISION

Speaker Chamal Rajapaksa announcing his ruling on the Supreme Court decision to issue notice on Parliamentary Select Committee members hearing the Impeachment motion against Chief Justice Shirani Bandaranayake held that the Court decision has
‘no effect’ and is ‘not recognised’.

The  Speaker  was  referring  to  the  Supreme  Court  ruling  on  a  number  of  Writ
Applications filed in the Court of Appeal and later referred to them.

One of the relief sought by the applicants was to issue notice on the Respondents.
Full text of the Speaker’s ruling:

“The Honourable Nimal Siripala de Silva, Leader of the House, raised an issue relating to Privilege on the floor of the House this morning. This arose from an event which occurred yesterday.

I found exceedingly helpful the detailed observations which were made on this issue by fifteen Hounourable Members on both sides of the House today. The range and depth of the views expressed during the debate, which I have reflected on, greatly facilitated my task in reaching my decision on the matters brought to my notice by the Honourable Leader of the House.

Notice was served on me yesterday, as Speaker of Parliament and on the Members of the Select Committee appointed by me on 14th of November 2012 to inquire into allegations   against   the   Honourable   Chief   Justice   under   Article   107   of   the Constitution. I, as the Speaker of Parliament, and the Members of the Select Committee appointed by me have been cited as Respondents in these proceedings.

These were Notices issued by the Court of Appeal, on the direction of the Supreme Court,  in  the  matter  of  an  application  for  mandates  in  the  nature  of  Writs  of Certiorari, Mandamus, Quo Warranto and Prohibition in terms of Article 140 of the Constitution.

The relief sought in these proceedings includes the following;

a) Issue notice on the Respondents in the first instance

b) Grant and issue a Writ of Certiorari quashing the determination and/or decision of the 1st Respondent to place the said alleged impeachment motion against the Chief Justice dated 01.11.2012 in the Order Paper of Parliament on 06.11.2012

c) Grant and issue a Writ of Certiorari quashing the decision and/or determination of the 1st Respondent to appoint and/or assign a committee made up of the 2nd to


12th Respondents to embark upon a judicial/quazi judicial process of inquiring into the charges against the Chief Justice.

d) Grant and issue a Writ of Certiorari quashing the order and/or decision and/or determination of the 1st Respondent directing the Chief Justice to present herself before the 2nd to 12th Respondents for inquiry by way of a judicial/quazi judicial process.

e) Grant and issue a Writ of Prohibition preventing 1st to 12th Respondents from taking any further actions or steps in connection with the impunged Motion dated
01.11.2012.

f) Grant and issue a Writ of Quo Warranto requiring the 2nd to 12th Respondents to display under what legal warrant or authority they intend to embark upon a judicial/quazi judicial process of inquiring into the alleged charges against the Chief Justice.

g) Grant and issue a Writ of Mandamus directing the 1st Respondent to act in terms of  the  Law  contained  in  Article  107  (3)  to  formulate  and  adopt  Laws/Standing Orders establishing a lawful and constitutional process governing the impeachment of a judge of the Appellate Courts, that is not in violation of specifically Article 4 ( c ) of the Constitution.

h) Grant and issue Interim Orders;

I. Restraining the 1st Respondent and/or agents and/or officers serving under him from taking any further steps in connection with the said impeachment motion dated
01.11.2012.

II. Restraining the 2nd to 12th Respondents and/or agents and/or officers serving under them from taking any further steps pursuant to the notice summoning the Chief Justice dated 15.11.2012.

I wish to explain to the House the basis of my ruling.

In appointing this Committee, I have acted as Speaker in pursuance of the powers vested by me by Article 107 of the Constitution.

The Members of the Committee appointed by me are responsible solely and exclusively to me as the Speaker. No person, or institution outside Parliament has any  authority  whatsoever  to  issue  any  directive  either  to  me  as  Speaker  or  to Members of the Committee appointed by me.

This is a mater which falls exclusively within the purview of Parliament’s authority.
The established law in this regard was exhaustively surveyed by my distuingished
predecessor,  the  late  Honourable  Anura  Bandaranaike,  in  his  historic  ruling delivered in this august House on 20th June,2001.

It  is  clear from this  rurling  that  the  matters  concerned  fall within  the  exclusive domain of Parliament, and that no intervention in any form by any external agency is consistent with  the  established  principles  of  law,  and is  therefore  to  be  rejected unreservedly as an unacceptable erosion of the powers and responsibilities of Parliament.

I am happy to note that a broad consensus emerged in the course of debate on the central issue requiring my decision. I would like to make particular mention of the view, clearly expressed by the Honourable Leader of the Opposition in the course of his intervention, that the purported Notices constitute an unwarranted interference with the powers and procedures of Parliament, and are invalid. This was stated with great clarity by the Honourable Joseph Michael Perera as well.

On careful consideration of this matter, I wish to convey to the House my ruling that the Notices issued on me, as Speaker of Parliament, and on the Members of the Select Committee appointed by me, have no effect whatever and are not recognized in any manner.

I declare that the purported Notices, issued to me and to the Members of Select
Committee are a nullity and entail no legal consequences.

I wish to make is clear that this ruling of mine as Speaker of Parliament, will apply to any similar purported Notice, Order of Determination in respect of the proceedings of the Committee which will continue solely and exclusively under the authority of Parliament.

List of the Parliamentary Select Committee on impeachment against CJ

The Speaker of the Parliament appoints 11 member select committee headed by Minister Anura Priyadarshana Yapa to the Parliamentary Select Committee (PSC) to probe the 14 charges contained in the impeachment motion against Sri Lanka's Chief Justice Dr.Shirani Bandaranayake.

Ministers Nimal Siripala de Silva, Anura Priyadarshana Yapa, Susil Premajayantha, Rajitha Senaratne, Dilan Perera, Wimal Weerawansa and Deputy Minister Neomal Perera have been appointed as the government representatives.

Lakshman Kiriella, John Amaratunga, Vijitha Herath and R.Sampanthan has been appointed as the opposition party representatives.

(Courtesy: news.lk)

THE ORDER OF THE SUPREME COURT REQUESTING DELAY IN IMPEACHMENT PROCEEDING TILL THE COURT INQUIRE INTO THE REFERENCE MADE BY THE COURT OF APPEAL

IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

S.C.Reference No.5/2012                                   In the matter   of reference   under and
C.A.
(Writ) Application No.3 62/20 12                    in    terms    of    Article    125    of    the
Constitution


Ven.Maduluwawe Sobhitha, Thero
Kotte Sri Naga Viharaya, Pita Kotte,
Kotte. Petitioner. vs.
1.  Hon.Anura Priyadarshana Yapa, M.P. Eeriyagolla,
Yakwila.

2.  Hon.Nima1 Siripala de Silva, M.P.
93/20, Elvitigala Mawatha, Colombo 08.

3.  Hon.A.D.Susi1 Premajayantha, M.P.
12311, Station Road, Gangodawila, Nugegoda.

4.  Hon.Dr.Rajitha Senaratne, M.P. C.D.85, Gregory's Road,
Colombo 07.

5.  Hon. Wimal Weerawansa, M.P.
18, Rodney Place, Cotta Road, Colombo 08.
of the  Democratic Socialist Republic  of
Sri Lanka.

6.  Hon.Dilan Perera M.P.

30, Bandaranayake Mawatha, Badulla.

7.  Hon.Neoma1 Perera, M.P.
313, Rockwood Place, Colombo 07.

8. Hon.Lakshman Kiriella, M.P.
12111, Pahalawela Road,
Palawatta, Battaramulla.

9.  Hon.John Amaratunga M.P.
88, Negombo Road, Kandana.

10. Hon.Rajavarothiam
Sampathan, M.P.
2D, Summit Flats, Keppitipola Road, Colombo 05.

11. Hon.Vijitha Herath, M.P.
4413, Medawaththa Road, Mudungoda, Miriswaththa, Gampaha.
Respondents.
22.11.2012
Before  -           AMARATUNGAY J. SRIPAVAN, J.
DEP, P.C. J.

Counsel  :        K. Kanag-Isvaran P.C. with Buddhike Illangatillake and
Thishya Weragoda for the Petitioner in 03/20 12. Sanjeewa Jayawardena P.C. with Senany Dayaratna for Petitioner in 4/20 12

G.Alagaratnam P.C: with Ranjith Coomaraswamy, Chanaka de
Silva ., M.IM. Adamaly and L..Gurusinghe ,for Petitioner in
05/2012.

Shibly Aziz P.C. with U. Egalahewa P.C. and Chishrnal
Warnasuriya for Petitioner in 06/20 12
Uditha Egalahewa P.C. with Gihan Galabadge R. Dayananda and Amaranath Fernando for the Petitioner in 7/20 12

Chrishmal Warnasuriya with  Reven  Weerasinghe, Wardani
Karunarathne and D. Kularathne in 0812012. Pulasthi Hewamanne for Petitioner in 09/20 1 2.
Palitha Fernando P.C. A.G. with A. Gnanathasan P.C. ASG, Shavindra Fernando DSG.,  S .Rajarathnarn  DSG,  Janak  de Silva DSG, A.H.M.D.  Nawaz DSG and N.Pulle SSC. for A.G.

Argued &
Decided on   :  22.11.2012

AMARATUNGA, J

We  have  heard  the  learned  President's  Counsel  who  appeared  in  support of the Reference Nos.   312012, 412012,   512012,   612012, 712012 and the   learned counsel who appeared in support of the Reference Nos. 8120 1 2  & 9/20 12-  and we  have also heard  the Hon.  the Attorney-General who  appeared on  very  short notice.  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 misbehavior or incapacity in   addition to the matters   relating to the investigation of the alleged misbehavior or incapacity?."

Article 125(2) of the Constitution mandates that the question referred to the Supreme Court shall be determined within  2 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 am tomorrow,   i.e.   23.1 1.20 12 and irreparable damage would be caused to the person noticed that is the Hon. the 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   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  reiterating  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  to  the  members    of    the  Select  Committee  of    Parliament  that  it  is prudent to defer  the inquiry to be  held against .the Hon. the Chief Justice until this Court makes  its determination  on 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  safe guarding  of the rule of  law and the interest of all persons concerned and  ensuring that justice is not only  be done but is manifestly and undoubtedly seem to be done.

We direct the Court of Appeal to inform the Respondents to file written submissions in terms of the Rule 64(l)(b) of the  Supreme Court  Rules.

The Registrar of the Supreme Court is also directed to   send copies of the written submissions lodged under the aforesaid Rule to the Hon.  the Attorney-General and the   written   submissions   of   the   Hon.   the Attorney-   General   could be filed in terms of the aforesaid rules.

The Registrar is directed to serve  certified copies of this  order  to all Respondent members   of the   Select Committee of the   Parliament   together with the   certified copy of the Petition and  affidavit  filed in the Court of  Appeal and  also a copy of the order of reference made  by the Court of Appeal.
A copy of today’s order is to be  served  on  the Hon.  the Attorney-General as well. The  Registrar is also directed  to  send a certified  copy  of   today's   order to  the
Registrar of the Court of Appeal.   Petitioners are also entitled to obtain certified copies of this order on payment of usual charges. Mention on 28.1 1.20 1 2, before the same bench.

The Registrar is also directed to send a   certified copy   of   today's   order to the Registrar of the Court of Appeal.   Petitioners are also entitled to obtain certified copies of this order on payment of usual charges.
Mention on 28.1 1.20 1 2, before the same bench. Sgd
JUDGE OF THE SUPREME COURT

SRIPAVAN, J. I agree.
Sgd
JUDGE OF THE SUPREME COURT

DEP, PC, J. Sgd

JUDGE OF THE SUPREME COURT

I  do hereby  certify that the  foregoing  is a- true  copy of the  judgment dated 22.1
1.20 12, filed of record in SC Reference No.05/20 12. Typed by  :-  Sgd
Compared with:-

FULL TEXT OF THE INTERIM REPLY GIVEN BY THE CHIEF JUSTICE

…………………………………
…………………………………

Dear Sir,

We regret that our client was not provided with more time.

The letter dated 14/11/2012 was delivered to our client’s official residence at approximately 7 pm on 14/11/2012 asking her to respond to the 14 alleged charges by the 22/11/2012, which is approximately one week’s time.

By letter dated 15/11/2012 sent by us on behalf of our client, and our client by our letters dated 16/11/2012 and 17/11/2012, requested further time to respond to the
14 alleged charges.

The request of our client for further time has not been permitted.

In the limited time available, we respond as hereinafter. We request that the details asked for be furnished, and request further time to respond morefully.

Our  client  denies  the  purported  charges.  Our  client  is  totally  innocent  of  the purported  charges which are baseless, groundless and frivolous.
Our client has at all times been independent, and has refused to bow to pressure. In the circumstances, I request that an inquiry be held by lawfully appointed body
consisting  of  lawfully  appointed  body  consisting  of  eminent  and  independent
persons  not politically affiliated.

Our client is convinced that she will be exonerated at such an inquiry.
We state that the select committee has no jurisdiction to hear and determine the impeachment motion for the following inter alia reasons:-

(1) The select committee has no jurisdiction to exercise judicial powers which in this instance it purports to do.

(2) Without prejudice to (1) above the purported inquiry violates the Rule of Law, which is the basis of governance and the gravamen/ foundation upon which the sovereign people have decided that they be governed and their judicial power exercised.
The  aforesaid  matters  would  be  dealt  with  briefly  hereinafter  and  more  fully  if necessary.2

SOVEREIGNTY IS IN THE PEOPLE

1. The people are the sovereign in the Democratic Socialist Republic of Sri Lanka.

2. The sovereignty of people is recognized by the constitution.

3.  The  sovereignty  of  the  people  is  not  granted  /  conferred  /  given  by  the constitution - it is merely recognized by the constitution.

The sovereign people, that is, the sovereign in the land, have determined the manner in which their sovereignty is to be exercised.

No one at all can interfere with such determination of the sovereign.

It should be pointed out that in Sri Lanka the sovereign are the people and not the president, parliament or judiciary. In this context, it is noted that parliament is not the sovereign of this country.

Article 4(c) of the constitution states as follows:-

“the judicial power of the People shall be exercised by parliaments 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;” [emphasis ours]

In the circumstances Parliament or a Select Committee of parliament cannot exercise the judicial power save and except in the exception set out in article 4(c) which is in regard to   matters privileges, immunities and power of people and its members, which exception is not relevant to these proceedings.

The Select Committee purports to exercise judicial power in this instance.

Article 107(2) states that a judge can be removed only for proven misbehavior or incapacity. In this case the allegations are of misbehavior.

The decision or determination whether or not a person is guilty of misbehavior is clearly an exercise of judicial power.

In the circumstance it is only a court that can determine whether or not a judge is guilty of proven misbehavior.

Parliament or its Select Committee cannot determine whether a judge is guilty of proved misbehavior since such determination or decision is the exercise of judicial power.3
Parliament cannot by the enactment of standing orders confer to itself judicial power and/or usurp judicial power, which the sovereign (the people of Sri Lanka ) have vested in the courts (parliament through courts).

Thus it is submitted that the select committee has no jurisdiction to hold this purported inquiry.

RULE OF LAW

Sri Lanka is governed by the Rule of Law.
The gravamen/ foundation/ basis of the legal system of Sri Lanka is the Rule of Law. The sovereign people have determined that all judicial power be exercised based on
the principle of Rule of Law.

It is on that premise that Justice in the celebrated case of R v Sussex Justices ex parte McCarthy 1924- 1KB-256, 1923 All E R 233 laid down the maxim that “Not only must Justice be done; it must also be seen to be done.”

The Rule of Law mandates that every person gets a fair and impartial hearing.

This maxim has been recognized by all civilized legal systems throughout the world and has been recognized and adopted without exception by the courts in Sri Lanka.

It is submitted that the aforesaid principles are violated in inter alia the following circumstances:-

(a) all members who signed the resolution come under purview of government whip

(b) the majority of select committee are members coming under the government whip

(c) the government whip at present is Hon. Dinesh Gunewardene who is a member of  cabinet

(d) 07 members of the select committee, who constitute its majority, are either cabinet ministers or deputy ministers

(e) His Excellency the President is the head of government and the members who signed the impeachment motion and the majority of members of select committee are members under the government whip4

1. The following facts are relevant.

(i) The Select Committee was appointed on 14th
November at approximately 10 a.m.
(ii) The Select Committee met at approximately 4 p.m. on 14th
November.

(iii) The document said to contain a charge sheet was hand delivered at the residence of Hon. Dr. Bandaranayake at approximately 7 p.m.

(iv) Only approximately 1 week was given to reply the document which contained 14 purported charges.

2. We answer hereafter without prejudice to the aforesaid.

3. We further state that : -
(i) The document dated 14/11/2012 contains no charges in Law.

(ii) The purported charges even if proved do not constitute proved misbehavior within the meaning of Article 107(2) of the Constitution and therefore cannot  result in the impeachment of our client.

(iii) The purported charges do not constitute charges within the meaning of the Law. (iv) The purported Standing Orders have no legal validity in Law.
4. We further state that these purported charges have been made mala fide and the process followed up to now is evidence of such mala fide.

5. We provide our observations hereafter without prejudice to the aforesaid.

6. We object to the following members of the Select Committee for the following reasons.

1) Hon Dr. Rajitha Senaratne

a) Mrs. Sujatha Senaratne [wife of Hon. Senaratne] instituted a Fundamental  Rights case concerning the appointment of the Director National Hospital and her right to make an application to that post, which was argued before a Bench presided over by our client over several days. Leave to proceed   was refused which resulted in the dismissal of the case. The dismissal   was approximately 7 Months ago. Thus, Mrs. Senaratne lost an  opportunity to be considered for the post.5

b) As per news paper reports [uncontradicted] the Hon. Senaratne is a cogent supporter of the motion.


2) Hon. Wimal Weerawansa

a) An appeal to the Supreme Court filed by Hon Wimal Weerawansa was  dismissed on or about 03/04/2010 months ago by a bench of Supreme  Court, presided by our client.

b) Case No. SC Sp LA 59A/2006 [appeal filed by Hon. Weerawansa against   Hon. Ravi Karunanayake] is pending in the Supreme Court and has come   up before a Bench of which our client was a member.

c)   Hon.   Weerawansa   has   publicly   announced   that   he   intended   instituting proceedings in the Supreme Court for the repeal of the 13th   Amendment to the Constitution and is not filing it at present in view of the pending impeachment motion. It is alleged that our client was in favour of the 13th Amendment.

7. We make our observations hereafter without prejudice to the aforesaid.
8. The purported Charges cannot be fully answered without the following details; (i) What are the annual declarations of assets and liabilities referred to in
Charge 3.

(ii) What are the details of the 34 Million [approximately] in foreign currency deposited in the branch of the N.D.B Bank as referred to in Charge 3.

(iii)  What  are  the  details  of  the  more  than  twenty  Bank  accounts  referred  to  in
Charge 4, and what are the Banks.

(iv) What are annual declaration of accounts and liabilities referred to in  Charge 4.

(v) What is the ‘contradiction’ referred to in Charge 9.

(vi) What is the article published by our client in Ground views in Charge 10. (vii) In which issue of Ground views is the Article published.
(viii) What are the details of the harassment referred to in Charge 11.6

PURPORTED CHARGE 1

Note: English translation of the purported charges, were obtained from the
Parliament’s website at  www.parliament.lk

“1. Whereas by purchasing, in the names of two individuals, i.e. Renuka Niranjali
Bandaranayake and Kapila Ranjan Karunaratne using special power of attorney

licence bearing No. 823 of Public Notary K.B. Aroshi Perera that was given by
Renuka Niranjali Bandaranayake and Kapila Ranjan Karunaratne residing at No.
127, Ejina Street, Mount Hawthorn, Western Australia, 6016, Australia, the house bearing No.  2C/F2/P4 and  assessment  No. 153/1-2/4 from the housing  scheme located at No. 153, Elvitigala Mawatha, Colombo 08 belonging to the company  that was known as Ceylinco Housing and Property Company and City Housing   and Real Estate Company Limited and Ceylinco Condominium Limited and is  currently known as Trillium Residencies which is referred in the list of property in  the case of fundamental rights application No. 262/2009, having removed another  bench of the Supreme Court which was hearing the fundamental rights  application cases bearing Nos. 262/2009, 191/2009 and 317/2009 filed respectively   in the Supreme Court against Ceylinco Sri Ram Capital Management, Golden Key  Credit Card Company and Finance and Guarantee Company Limited belonging  to the Ceylinco Group of Companies and taking up further hearing of the  aforesaid cases under her court and serving as the presiding judge of the benches  hearing the said cases”

1. The crux of the charge is that our client wrongfully took over the hearing of a case so that she could purchase using a power of attorney a housing unit in the Trillium Residencies in the name of her sister and her sister's husband.

2. The allegation is totally baseless and groundless.

3. Our client had a special power of attorney from her sister and her brother in law
because her sister and sister’s husband were the purchasers.

4. The housing unit was not purchased by our client in the name of her sister and her brother in law. It was in fact and in truth purchased by her sister and her sister’s husband.

5. The total purchase consideration was remitted by our client's sister and her brother in
law as more fully set out hereinafter [vide paragraphs under charge 3 below].

Thus  it  is  clear  that  our  client’s  sister  and  brother  in  law  provided  the  total
consideration.
Our client did not provide a cent of the purchase consideration.
Thus the premises was in fact bought by our client’s sister and her brother in law and not  purchased in the names of our client’s sister and brother in law.

Our client's sister or brother in law received no benefit whatever by the case being called  or heard before our client.7

We may mention that our client and her sister are the only children of that family and  our client had been looking after her sister’s interest in Sri Lanka for the last 22 years   whilst her sister was living in Australia; she held their  general power of attorney from about 1990 when they left Sri Lanka.


Relevant dates
The proceedings of 6.5.2010:-

The  Supreme  court  (consisting  of  Hon.  Justice  Thilakawardene,  Hon.  Justice
Sripavan and Hon. Justice Imam) made inter alia the following order on 6.5.2010:-
“ …The properties to be disposed would be:- (1) pioneer tower (head office building)
(2) trillium residencies (sale of housing units)
(3) celestial residencies…”

In the circumstances there was no restriction for the sale of any of the housing units of  Trillium from 6.5.2010.

In the circumstances from 6.5.2010 the housing units in Trillium residencies were in effect not a property in the list of properties in case 262-2009 that could not be alienated.

Our client became chief Justice on or about 18.5.2011, which is one year after the above  order of the Supreme Court.

In the circumstances our client did not in any way participate in the order in which housing units in trillium residencies was permitted to be sold.

Cases bearing numbers 262-09, 191-09 and 317-09 referred to in the charge were meant   to be taken up together. On 23.8.2011 a motion was filed asking that the matter be heard   by a bench of 5 judges. This motion was submitted to our client, who  made  order that    the  motion  be  supported  before  the  bench  which  sat  on
29.6.2011, which was Hon.  Justice Thilakawardene, Justice Ekanayake and Dep P.C J.

In the circumstances it is incorrect to allege that our client wrongfully took over the case.8 It may be relevant to note that after 6.5.2010 case No.262/2010 was taken up before the  former Chief Justice Hon. Justice Asoka de Silva. The former Chief Justice Hon, Justice Asoka de Silva himself purchased a housing unit at trillium residencies demonstrating  that there was no impediment to purchase such a housing unit.

In summary then,

(1) the sale /purchase of housing units of trillium residencies was permitted by order of the SC dated 6.5.2010 (Supreme Court bench consisting of Hon. Justice Thilakawardene, Hon. Justice Sripavan and Hon. Justice Imam);
(2) there was no restriction in the sale of housing units of Trillium Residences after
6.5.2010
(3) our client became Chief Justice on or about 18.5.2011;


(4) the case was mentioned before our client for the first time on 13.10.2011;
(5) there was nothing wrong in the manner in which the case came before our client; (5) the properties were purchased by our client's sister and brother in law and not by our client; and
(6) our client's sister and brother in law did not receive any benefit whatsoever by our client hearing the case.

PURPORTED CHARGE 3

“3. Whereas, by not declaring in the annual declaration of assets and liabilities thatshould be submitted by a judicial officer, the details of approximately Rs. 34 million in foreign currency deposited at the branch of NDB Bank located at Dharmalpala  Mawatha,  Colombo  07  in  accounts  106450013024,  101000046737,
100002001360 and 100001014772 during the period from 18 April 2011 to 27 March
2012.”

The Charge is groundless and baseless.

In summary our client's position is as follows:-

There was no deposit of Rs. 34 million in foreign currency as alleged in the charge. Our client's sister remitted from Australia the equivalent of Rs.29,688,225.38 for the purchase of a housing unit at trillium residencies.

Out of such sum, a sum of Rs.27, 987,200/- was remitted to the vendor by cheques in connection with the purchase of the housing unit at trillium residencies.

The above sum of Rs.29,688,225.38 was not an asset of our client.

The balance Rs. 800,000/= was retained by our client to be used as per her sister’s instructions to be utilized for other purposes including the annual almsgiving in memory  of their parents.

In any event, in her declaration of assets and liabilities, our client declared a sum of Rs.10,061,819/31 as "holding on behalf of my sister to pay for the apartment" [this was the only sum held by our client for her sister as at 31.3.2012 and it had been declared].

In the circumstances,

(a) our client did not receive a sum of Rs.34 million as alleged in the charge;
(b)  the  only  sums  received  from  abroad  aggregated  to  the  equivalent  of
Rs.29,688,225.38
which she received from her sister for the purchase of the apartment..
(c) of this sum, a sum of Rs.27, 987,200/- was remitted to the vendor to purchase the apartment;
(d) a sum of  Rs 1,000,000/= was credited to her sister’s account; the balance
was
retained as per her sister’s instructions for expenses.
(d) our client had declared the full sum held by her on account of her sister as at
31.3.2012  in  her  declaration  of  assets  and  liabilities  [that  is  a  sum  of
Rs.10,061,819.31].

In the circumstances the purported charge that she did not declare Rs.34 million in her declaration is groundless, baseless, frivolous and malicious.

PURPORTED CHARGE 2

“2. Whereas, in making the payment for the purchase of the above property, by paying a sum of Rs 19,362,500 in cash, the manner in which such sum of money was earned had not been disclosed, to the companies of City Housing and Real Estate Company Limited and Trillium Residencies prior to the purchase of the said property.”

The Charge is groundless and baseless.

The sum of Rs.19,362,500/- was part of the purchase consideration of the housing unit referred to above.10

This sum (Rs.19,362,500/-) is included in the aforesaid sum of Rs.29,688,225.38 remitted  to our client by her sister for the purchase of the housing unit referred to above.

This sum of Rs.19,362,500/- is also included in the sum remitted to the vendor for the purchase of housing unit.

This sum of Rs.19,362,500/- never belonged to our client.

PURPORTED CHARGE 4.

“4. Whereas, by not declaring in the annual declaration of assets and liabilities thatshould be submitted by a judicial officer the details of more than twenty bank accounts maintained in various banks including nine accounts bearing numbers
106450013024,      101000046737,      100002001360,      100001014772,      100002001967,
100101001275, 100110000338.”

The Charge is groundless and baseless.

In summary our client's position is as follows:-

1. Our client has dealt exclusively with NDB Bank from 2010

2. Account number 100101001275 was closed on or about 9.10.2008.

3. Our client has been informed that the NDB as per its banking practice changed the account numbers by allocating new account numbers to its constituents.

4. In pursuance of that practice, Account numbers 100001014772, 100110000338,
100121001797, 100124000238, 100002001360 and 100002001967 had been
changed and new account numbers had been allocated before 31.3.2012.

5. Consequently of the 9 account numbers mentioned in purported charge No.4
only  2  account  numbers  were  in  existence  as  at  31.3.2012  and  those  2  account numbers have been declared.

6. All other operative accounts in NDB Bank having assets have been declared.

7. Our client has no operational accounts in any other bank.

8. Our client has not been provided with details of the other alleged 20 accounts and/or other banks in which these accounts are said to be.11

PURPORTED CHARGES   -   6, 11, 12, 13 & 14

“6. Whereas, despite the provisions made by Article 111H of the Constitution that the Secretary of the Judicial Service Commission shall be appointed from among  the senior judicial officers of the courts of first instance, the Hon. (Dr.) (Mrs.)  Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani   Anshumala Bandaranayake acting as the Chairperson of the Judicial Service   Commission by virtue of being the Chief Justice, has violated Article 111H of the   Constitution by disregarding the seniority of judicial officers in executing her   duties as the Chairperson of the Judicial Service Commission through the   appointment of Mr. Manjula  Thilakaratne  who  is  not  a  senior  judicial  officer  of    the  courts  of  first instance, while there were such eligible officers.”

“11. Whereas, in the case, President’s Counsel Edward Francis William Silva and three others versus Shirani Bandaranayake (1992 New Law Reports of Sri Lanka  92) that challenged the suitability of the appointment of the Hon. (Dr.) (Mrs.)  Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani   Anshumala Bandaranayake who holds the office of the Chief Justice and thereby  holds the office of the ex-officio Chairperson of the Judicial Service Commission   in terms of the Constitution, Attorney-at-Law L.C.M. Swarnadhipathi, the brother  of the Magistrate Kuruppuge Beeta Anne Warnasuriya Swarnadhipathi filed a   petition against the appointment of the said Hon. (Dr.) (Mrs.) Upatissa Atapattu  Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala   Bandaranayake owing to which the Hon.   (Dr.)   (Mrs.)   Upatissa   Atapattu       Bandaranayake   Wasala   Mudiyanse

Ralahamilage Shirani Anshumala  Bandaranayake has harassed the said Magistrate
Kuruppuge Beeta Anne Warnasuriya Swarnadhipathi;”

“12. Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake who holds the office of the Chief Justice and thereby holds the office of the ex-officio Chairperson of  the Judicial Service Commission in terms of Article 111D (2) of the Constitution  has, by acting ultra vires the powers vested in her by the Article 111H of the  Constitution ordered the Magistrate (Mrs.) Rangani Gamage’s right to obtain  legal protection for lodging a complaint in police against the harassment meted   out to her by Mr. Manjula Thilakaratne, the Secretary of the Judicial Service  Commission.”

“13. Whereas, the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake being the Chief Justice and thereby being the Chairperson of the Judicial Service
Commission, in terms of Article 111D (2) of the Constitution, has abused her  powers by ordering the Magistrate (Mrs.) Rangani Gamage to obtain permission   of the Judicial Service Commission prior to seeking police protection thereby   preventing her from exercising her legal right to obtain legal protection.”12 “14. Whereas, the Hon.  (Dr.)  (Mrs.)  Upatissa  Atapattu  Bandaranayake  Wasala  Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake by performing her duties as the Chairperson of the Judicial Service Commission has referred a letter through the Secretary of the Judicial Service Commission to the Magistrate (Mrs.) Rangani Gamage, calling for explanation from her as to why a disciplinary   inquiry should not be conducted against her for seeking protection from the   Inspector General of Police by exercising her legal right;

These Charges are groundless and baseless.

1. These purported charges deal with decisions taken by the Judicial Services
Commission.

2. The Judicial Service Commission consists of the Chief Justice (the Chairperson)
and two other judges of the Supreme Court as Commissioners.

3. All decisions are taken by the Judicial Service Commission.

4. All decisions of the Judicial Service Commission (after our client had become
Chief Justice) had been unanimous.

5. In the circumstances no decision has been taken by our client alone.

6. The charges therefore deal with the decisions of the Judicial Service Commission and not of our client.

7. In the circumstances the purported charges cannot amount to misbehavior on

our client’s part in terms of Article 107 of the Constitution.

PURPORTED CHARGE 5

“5. Whereas, Mr. Pradeep Gamini Suraj Kariyawasam, the lawful husband of the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake is a suspect in relation to legal action initiated at the Magistrate’s Court of Colombo in connection with the offences regarding acts of bribery and/or corruption under the Commission to Investigate into Allegations of Bribery or Corruption Act, No 19 of 1994.13

Whereas, the post of Chairperson of the Judicial Service Commission which is vested with powers to transfer, disciplinary control and removal of the Magistrate of the said court which is due to hear the aforesaid bribery or corruption case is held by the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake as per Article 111D (2) of the Constitution;

Whereas, the powers to examine the judicial records, registers and other documents maintained by the aforesaid court are vested with the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake under Article 111H (3) by virtue of being the Chairperson of the Judicial Service Commission;

Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake becomes unsuitable to continue in the office of the Chief Justice due to the legal action relevant to the allegations of bribery and corruption levelled against Mr. Pradeep Gamini Suraj Kariyawasam, the lawful husband of the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake in the aforesaid manner, and as a result of her continuance in the office of the Chief Justice, administration of Justice is hindered and the fundamentals of administration of Justice are thereby violated and whereas not only administration of Justice but visible administration of Justice should take place;”

1. It is ex facie not a charge in law.

2. There is not even an allegation that our client has done any wrong.

3. There is not even an allegation that our client has in any way or manner interfered in the proceedings in which plaint has been filed in the Magistrates against her husband.

4. Our client states that it is the practice amongst members of the JSC that a member declines to participate in the proceedings of the JSC if there is a conflict of interest.

5. If this sort of charge can be maintained, any Judge, any member of the JSC can by removed by merely instituting proceedings against such Judge’s spouse, or children, or relative, or close friend.

6. This purported charge is baseless, frivolous and malicious.

7. In the total circumstances, our client denies totally the purported charges and denies totally that she acted wrongfully and/or improperly.

PURPORTED CHARGE 6

“6. Whereas, despite the provisions made by Article 111H of the Constitution that the Secretary of the Judicial Service Commission shall be appointed from among the senior judicial officers of the courts of first instance, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake acting as the Chairperson of the Judicial Service Commission by virtue of being the Chief Justice, has violated Article 111H of the Constitution by disregarding the seniority of judicial officers in executing her duties as the Chairperson of the Judicial Service Commission through the appointment of Mr. Manjula Thilakaratne who is not a senior judicial officer of
the courts of first instance, while there were such eligible officers.”

The Charge is groundless and baseless.

1. The following appointments as Secretary Judicial Services Commission [JSC] have been made in the past:-

Name  Date    Seniority          Remarks

Mr. M. P. De Silva       4.12.2009          19   Appointed   by   the   Judicial   Commission chaired by J.A.N. de Silva,
CJ
Mr. R.A.P.W. de Silva (brother of the then Chief Justice J.A.N Asoka de Silva)
15.07.2010        25
Appointed by  the Judicial Commission chaired by
J.A.N. de Silva, CJ

Mr.Manjula Thilakaratne

2. The officers of the JSC are


(i) Secretary to the JSC
(ii) Deputy Secretary to JSC.
(iii) Assistant Secretaries to JSC

3. 16/3/2010 – Mr. Thilakaratne was appointed as Senior Assistant Secretary by the
Judicial Service Commission chaired by the then Chief Justice. Hon. J.A.N. de
Silva.

4. 22/7/2010 -  Mr. Thilakaratne was appointed as Deputy Secretary JSC by the JSC
chaired by the then Chief Justice. Hon. J.A.N. de Silva.

5. 29/3/2012 - Mr. Thilakaratne was appointed as Acting Secretary JSC by the JSC
chaired by our client.

6. 10/5/2012 - Mr. Thilakaratne was appointed Secretary JSC by the JSC chaired by our client.

Seniority

7. As at 10/5/2012 : -

(i) The JSC recommended 11 District Judges/Magistrates to be appointed as High Court Judges.

(ii) 3 District Judges/Magistrates were on long overseas leave.

(iii) 3 judges have been appointed as High Court commissioners and were functioning in the Eastern Province since they were conversant in the Tamil Language

8. In the circumstances the aforesaid 17 judges could not be considered as secretary
JSC.

9. In addition, 3 judges have not been promoted as per the decision of the Judicial
Service Commission chaired by the then Chief Justice. Hon. J.A.N. de Silva.

10. Thus in effect as per the judges available for appointment as Secretary, Mr.Thilakaratne was 6th in the order of seniority.

11. Unlike any of the aforesaid judges Mr. Thilakaratne had functioned as an officer of the Judicial Service Commission from 16/3/2010 and was familiar with the working of the JSC and consequently he was the most suitable candidate.

12. However, even if no Judge was excluded, Mr. Thilakaratne was 26th in the order of seniority. Whereas : -

(i) when Justice Asoka de Silva’s brother was appointed Secretary JSC, he was 25th in order of seniority; and

(ii) the previous appointee was 19th in order of seniority. PURPORTED CHARGE 11
“11. Whereas, in the case, President’s Counsel Edward Francis William Silva and
three others versus Shirani Bandaranayake (1992 New Law Reports of Sri Lanka
92) that challenged the suitability of the appointment of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake who holds the office of the Chief Justice and thereby holds the office of the ex-officio Chairperson of the Judicial Service Commission
in terms of the Constitution, Attorney-at-Law L.C.M. Swarnadhipathi, the brother
of the Magistrate Kuruppuge Beeta Anne Warnasuriya Swarnadhipathi filed a petition against the appointment of the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake owing to which the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake has harassed the said Magistrate Kuruppuge Beeta Anne Warnasuriya Swarnadhipathi;”

This Charge is groundless and baseless.

1. Our client denies that she ever harassed Ms. Swarnadipathy

2. The purported charge is groundless and baseless.

3. The details of the harassment are not set out in the charge, and thus our client cannot
answer any further.

PURPORTED CHARGES       12, 13 & 14

“12. Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake who holds the office of the Chief Justice and thereby holds the office of the ex-officio Chairperson of
the Judicial Service Commission in terms of Article 111D (2) of the Constitution
has, by acting ultra vires the powers vested in her by the Article 111H of the Constitution ordered the Magistrate (Mrs.) Rangani Gamage’s right to obtain legal protection for lodging a complaint in police against the harassment meted out to her by Mr. Manjula Thilakaratne, the Secretary of the Judicial Service Commission.”
“13. Whereas, the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake being the Chief Justice and thereby being the Chairperson of the Judicial Service

Commission, in terms of Article 111D (2) of the Constitution, has abused her powers by ordering the Magistrate (Mrs.) Rangani Gamage to obtain permission of the Judicial Service Commission prior to seeking police protection thereby preventing her from exercising her legal right to obtain legal protection.”17
“14. Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake by performing her duties as the Chairperson of the Judicial Service Commission has referred a letter through the Secretary of the Judicial Service Commission to the Magistrate (Mrs.) Rangani Gamage, calling for explanation from her as to why a disciplinary inquiry should not be conducted against her for seeking protection from the Inspector General of Police by exercising her legal right;

1. The purported charges relate to the JSC calling for explanation from Magistrate
Ms.Gamage.

2. The facts are as follows.

(i) The Inspector General of Police issued a circular setting out the police personnel provided to different categories of Judicial officers.

(ii) The JSC issued circular no. 348 which was to the effect that requests concerning official matters should be directed to the JSC.

(iii) Ms Gamage in her capacity as Magistrate wrote directly to the Inspector
General of Police, asking for police protection which she claimed she needed in view of her duties as a Magistrate.

(iv) The JSC asked for an explanation from Ms Gamage as to why the JSC
circular No. 348 was not followed.

(v) Ms Gamage replied stating that she did not intend to violate the JSC’s
circular, but asked for forgiveness for any misunderstanding.

(vi) The matter was closed by the JSC. PURPORTED CHARGES    7 & 8
“7. Whereas, with respect to the Supreme Court special ruling Nos. 2/2012 and
3/2012 the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake has disregarded and /or violated Article 121 (1) of the Constitution by making a special ruling of the Supreme Court to the effect that the provisions set out in the Constitution are
met by the handing over of a copy of the petition filed at the court to the Secretary
General of Parliament despite the fact that it has been mentioned that a copy of a petition filed under Article 121 (1) of the Constitution shall at the same time be delivered to the Speaker of Parliament;”18

“8. Whereas, Article 121(1) of the Constitution has been violated by the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake despite the fact that it had been decided that the mandatory procedure set out in the said Article of the Constitution must be followed in accordance of the interpretation given by the Supreme Court in the special decisions of the Supreme Court bearing Nos. 5/91, 6/91, 7/91 and 13/91;”

The Charges are groundless and baseless.

In any event, this is a decision of the Supreme Court consisting of 3 judges. Further, a determination in respect of a bill is that of the 3 judges who heard it.
In contradistinction a judgment in other cases the judgment is that of the judge who
wrote  it  and  the  other judges  may (or may not)  agree  or may write a  separate judgment.

A decision of the Supreme Court cannot be considered proven misbehaviour within the
meaning of Article 107.

A judge cannot be impeached on account of a difference of opinion regarding a judgment and any attempt to do so would impinge on the independence of the judiciary.

1. The above purported charges relate to judgments of the Supreme Court, and it is neither appropriate nor correct to comment on.

2. The Select Committee itself should not go into such matters. PURPORTED CHARGE 9
“9. Whereas, irrespective of the absolute ruling stated by the Supreme Court in the fundamental rights violation case, President’s Counsel Edward Francis William Silva and three others versus Shirani Bandaranayake (1992 New Law Reports of Sri Lanka 92) challenging the appointment of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, when she was appointed as a Supreme Court judge, she has acted in contradiction to the said ruling subsequent to being appointed to the office of the Supreme Court judge.”

This purported charge is groundless and baseless.

1. No particulars have been given as to how our client acted in contradiction to the ruling in the case of Edward Francis William Silva v Shirani Bandaranayake.

2. Thus this purported charge cannot be answered.

3. Without such details, this purported charge has to be dismissed in limine and cannot
be considered a charge in law. PURPORTED CHARGE 10
“10. Whereas, the Supreme Court special rulings petition No. 02/2012 filed by the
institution called Centre for Policy Alternatives to which the Media Publication Section ‘Groundview’ that had published an article of the Hon. (Dr.) (Mrs.) UpatissaAtapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, while she was a lecturer of the Law Faculty of the University of Colombo prior to becoming a Supreme Court judge, has been heard and a ruling given.”

1. This purported charge is baseless, groundless and false.

2. Our client has been reliably informed that Groundviews, a media publication of the Centre for Policy Alternatives [CPA], came into existence in or about 2005-2006, long after our client ceased to be a lecturer of the Law Faculty.

3. Thus the purported charge is ex facie wrong.

4. Moreover, Groundview has not published an article written by our client.

5. Petition SCFR 2/2012 was not filed by the CPA.

6. It may be of interest to note that the bench presided by our client did not accept the submissions of the CPA in respect of the 18th Amendment.