By Chitra Weerarathne

The Supreme Court yesterday said that it was not inclined to grant interim relief against the proceeding of the Parliamentary Select Committee, appointed to inquire into allegations against Chief Justice Dr. Shirani Bandaranayake.

The Court, however, said that out of mutual respect and trust between the two institutions, the Parliament and the Judiciary, it wishes to recommend, to the members of the PSC, that they defer the inquiry until the Supreme Court determined the question of law on interpreting Article 107/3 of the Constitution, referred to it by the Court of Appeal.

The Supreme Court said the desirability and the expectation would be based on mutual and trust and respect to safeguard the rule of law and to ensure that justice was not only done but seen to be done.

The Bench comprised Justices N. G. Amaratunga, K. Sripavan and P. Dep. The case will be mentioned on November 28.

President’s Counsel K. Kanag Ishawaran, appeared for the petitioner, who had petitioned the Court of Appeal against the Parliamentary Select Committee, appointed to investigate allegations against the Chief Justice Dr. Shirani Bandaranayake,

At the onset, Counsel Ishwaran said that the Judicial Powers of the people were to be exercised by Parliament through the courts of law, except in matters relating to privileges of Parliament. Parliament could not confer its judicial powers on any group of persons. Voting out a person by Parliament was a legislative act, not judicial, he said. Removal of an offer by the President was an executive act. The investigation of allegation was judicial, he said, adding that standing orders were not law. They were rules of debate in Parliament and law was an act of Parliament.

He said the removal of judges should be done by a forum suitable for that process and standing orders could not pave the way for the removal of judges.

Justice Amaratunga: All persons have equal protection under the law except the judges of the apex courts.

Counsel Jeffrey Alagaratna PC said that standing orders could not make up a judicial body. Shibly Azaz PC endorsed the submission made by K. Kanag Ishwaran.

Sanjeewa Jayawardene PC said that the standing order had no provisions for burden of proof. The persons summoned had to disprove the allegations. The standing orders did not provide for standard of proof. Uditha Egalahewa, PC, associated his submissions with the other counsel who appeared on behalf of the petitioners in the Court of Appeal. A standing order was against the Constitution, he said.

Krishmal Warnasuriya also spoke on behalf of the interim relief against the proceedings of the Parliamentary Select Committee.

Attorney General Palitha Fernando, PC, next addressed the Court. He said he had had very short notice which he received only at midday yesterday.

The original Court on this issue had not properly notified the Attorney General on an important matter such as the interpretation of the Constitution.

The interim relief should have been sought in the Court of appeal. The Supreme Court had appellate jurisdiction. The Supreme Court had no original jurisdiction. The matter was still before the original jurisdiction, he said.

Palitha Fernando added that he was arguing the fundamental issue of whether the Supreme Court had the jurisdiction to stay the proceedings of an outside body, the Parliamentary Select Committee. The Court of Appeal had no jurisdiction to stay the Parliamentary Select Committee which was a part of parliamentary proceedings.

The Supreme Court had no original jurisdiction to stay the proceedings of the Parliamentary Select Committee. The Supreme Court had appellate jurisdiction on Writ Application, he said. He asked if the original court did not have the jurisdiction to grant interim relief how the Supreme Court,which had appellate jurisdiction could grant interim relief. The original jurisdiction was with the original court. The Supreme Court had been asked only to interpret Article 107/3, he said. The interim relief should be asked for in the Court of Appeal, Fernando stressed.COURTESY:THE ISLAND