Notes on the Diplomatic Briefing held at the Ministry of External Affairs on 16th January 2013 External Affairs Minister

Prof. G.L. Peiris informed the diplomatic corps that Mr. Lalith Weeratunga, Secretary to H.E. the President will provide a briefing on the recent progress with regard to the implementation of the National Action Plan of recommendations contained in the LLRC Report. However, before handing over to Secretary to the President, he observed that it would be useful to indicate the factual position with regard to some of the issues connected with the impeachment of the former Chief Justice Dr. Shirani Bandaranayake. Impeachment of the former Chief Justice He noted that this would be appropriate due to the considerable confusion with regard to these matters and some clarification might be desirable. The Minister stated that he came to that conclusion having read some of the media statements issued during the last three days. The Minister added that the gist of these statements by governments and authorities appear to be taking the line that what has been done is contrary to Sri Lankas Constitution, and contrary to clear rulings by the Court and that this brings into question some aspects of the Constitution of Sri Lanka. He emphasized that he wished to place before the diplomatic corps the facts of the matter so that they could arrive at their own conclusions, having studied the material with knowledge of facts and report to their respective governments. Referring to the docket containing several documents made available to the diplomatic corps, he drew attention to page 24 of the judgment of the Supreme Court, in the case of Chandra Jayarathanavs eleven respondents. He also drew attention to the text of Article 107(3) of the Constitution which reads: Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address including the procedure for passing such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such Judge to appear and to be heard in person or by representative.

The Minister noted that this is the provision dealing with the procedure of empowering the PSC that is appointed to go into matters connected with allegations made against the Chief Justice. This is the Governing Constitutional provision, Parliament shall by law or by standing order provide for all matters relating to the presentation of such an address. He added that the Court says that, there is a presumption that Parliament will not use words in vain or unnecessarily, meaning that there is no word that is superfluous or redundant. However, it defies belief that the Court comes to the conclusion that this power can be exercised by law and by law alone. The Court is expunging the words or by Standing Orders. The Minister highlighted that there are two alternatives that are at the disposal of Parliament. In empowering the Select Committee, Parliament can use one or two vehicles or instruments, it can be law or it can be Standing Orders. (Copies of the Ministers statement in Parliament on 10th January were distributed to the diplomatic corps) Referring to the Hansard reporting the Parliamentary proceedings on a previous occasion, when the legislature was considering this question, the Minister noted that interestingly, members of the SLFP at that time had expressed the strong view that it should be by law, rather than by Standing Orders. However, the then government had a different view and used Standing Orders, rather than law for this purpose. The Minister stressed that the Constitution provided the choice and they exercised that choice, which was within the ambit of their authority. Now the Court by a process of reasoning which is totally unintelligible, says that it is by law and by law alone. The Minister stated that interpreting the Constitution is the function of the Supreme Court, because in terms of Article 125 of the Constitution, the Supreme Court has sole and exclusive jurisdiction in respect of the interpretation of the Constitution. However, there are established principles all over the world defining what is meant by statutory interpretation. He quoted from the case of the Attorney General Vs. Thilanga Sumathipala in 2006 that A judge cannot, under the thin guise of interpretation, usurp the function of the Legislature to achieve a result that the Judge thinks is to the expressed intention of Parliament, as it is the bounden duty of any court and
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desirable in the interest of justice. Therefore, the role of the Judge is to give effect

the function of every Judge to do justice within the stipulated parameters. This has been the unchallenged view expressed by the Supreme Court of Sri Lanka for almost a hundred years. The Minister also quoted from other cases including the case of Chief Justice Griffith in the High Court of Australia:Rexvs. Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild (Griffith C.J.). Chief Justice Griffith says, The question for determination is entirely one of construction, and it seems necessary to say, once more, that the function of this court is to interpret the Constitution as it finds it, and not to strain its language to a construction which the country may think more beneficial than that which the words express. The Minister also quoted the following from the Courts of India and Sri Lanka. In the Matter of the Central Provinces (Gwyer C.J.) The courts are not free to stretch or pervert the language in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errors. Dr. A.R.B. Amerasinghe, in a work titled Judicial Conduct, Ethics and Responsibilities If legislation needs amendment because it results in injustice, the democratic process must be used to bring about the change. The Minister was of the view that it was preposterous that when the Constitution states by law or by Standing Order, the Court erases and expunges the reference to the Standing Order. He added that these instruments need to be changed from time to time, but that is the business of Parliament and no court can trespass on the domain of the legislature. Further reference was made to page 23 of the Supreme Court judgment; the Minister said it was equally astonishing in its reasoning. The whole objective of the exercise is to PSC. He explained that the writ of certiorari was an instrument designed by the Court of
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ensure that the writ of certiorari is issued in the end, to quash the proceedings of the

Kings Bench in England but later received into the jurisprudence of the Commonwealth and USA. He further explained that to issue a writ of certiorari, to quash the decision should be of judicial or quasi-judicial nature; and should be of the nature of a final decision. He explained that it is not a decision that is subject to confirmation by a higher authority so the Court has to show that the Select Committee has arrived at a final decision in order to pave the way for it to be quashed by a writ of certiorari. He quoted from page 23 of the of the Supreme Court Judgment In the case of a finding made by a Select Committee, Parliament has to take cognizance of such finding that the allegations against the Judge have been proved and make an address of Parliament to be presented to the President for the removal of the Judge. However, the Minister stated that this was not so; Parliament does not have to take cognizance, as the PSC is simply mandated to investigate and report, according to Standing Order 78(A) (ii). It is up to Parliament to accept or reject or accept in part such findings. Parliament does not have to accept the recommendations made by the Supreme Court. Parliament appoints Committees all the time and they report back to Parliament. The authority is with Parliament and the Committee is a delegate of Parliament. The final decision of the Supreme Court is what takes effect. Further quoting the judgment, The finding of the Select Committee is not subject to confirmation or approval by some other authority, the Minister contended that that this is absolutely untrue. The finding is subject to confirmation/approval of two authorities: the Parliament and the Parliament makes address to the President. The President, upon receiving the findings of Parliament, takes the final decision and the Court recognizes that. Parliament can decline to act upon the recommendations of the Supreme Court. The President upon receipt of the address by Parliament cannot give effect to it if he deems that it is inappropriate to do so. At the end of the debate a vote is taken. Therefore, to state that So the address of Parliament to be presented to the President is an inevitable
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consequence of a finding that the charges have been proved, is not accurate.
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The Minister pointed out that the whole purpose of the exercise had been to see that the writ of certiorari was issued to quash the proceedings. Minister Peiris proceeded to outline the judgment of the Supreme Court and outlined the sequence of events that took place. He noted that action originated in the Court of Appeal with the end objective of a writ of certiorari to quash the work of the of the Select Committee under Article 125 of our Constitution, if in the course of proceedings, a matter arises that requires the interpretation of our Constitution that particular aspect of the legislation has to be referred to the Supreme Court for interpretation. The Sri Lankan Constitution is different to that of USA and India. Thereafter, the Court of Appeal referred the matter to the Supreme Court for interpretation. The Supreme Court conveyed its faulty, erroneous opinion, to the Court of Appeal on 3rd January 2013, when both Courts were on vacation. The Court of Appeal made public the judgment of the Supreme Court and noticed the Hon. Attorney General to appear to assist them on the law. The next sitting of the Court of Appeal was fixed for 7th January 2013, while Courts were still on vacation. The Court of Appeal took the final step and issued the writ of certiorari. Minister Peiris drew the attention of the Diplomatic Corps to the language used in the operative part of the judgment. In view of the above determination, the finding and/or the decision or the report of the 2nd to the 8th respondents marked as P17 has no legal validity and as such this Court has no alternative but to issue a writ of certiorari to quash P17, thus giving effect to the determination of the Supreme Court referred to above The Minister noted that he had seldom come across such language used by any Court and was not aware of an instance where a Court of Law has used a writ of certiorari to quash Parliamentary proceedings. The Minister observed that this is a sacrosanct principle of constitutional law. Because of the determination of the Supreme Minister stressed that the Court has every alternative and should do what is right.
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Court, the Court of Appeal had no alternative but to issue a writ of certiorari. The

Minister Peiris also quoted the most recent example of the impeachment of Chief Justice Renato Corona of the Philippines, who did exactly what the former Chief Justice did, and went to Courts, which was refused. He quoted the reason given by an American judge, Rhenquist, C.J. who stated that certainly judicial review of the Senates trial would introduce the same risk of bias as would participation in the trial itself. The Minister also referred to the right to judicial review and quoted from the case of Nixon vs United States where Judge Walter Nixon, a Federal district Judge in the US who sought certiorari , the same remedy at the hands of the American Supreme Court, which the Courts refused. The Minister also stated that the Supreme Court of the US therefore held that there is no basis for intervention. He also referred to the Pinochet case, and quoted from the judgment of BrownWilkinston L.J. with regard to the second principle of natural justice. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way is not impartial, for example because of his friendship with a party. The second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefitting, but providing a benefit for another by failing to be impartial. The Minister noted that the whole question of public perception of integrity, impartiality, probity the Supreme Court of the US and the Court of Appeal of UK held that this is a matter for the legislation and there is no basis for intervention by the Judiciary branch of Government. He added that if you contravene the principle, you strike at the root of public confidence of impartiality of the judiciary. Minister Peiris drew attention to the consequences emanating from the Chief Justice asking her colleagues for a remedy. In the UK and the US, it would be an unequivocal no.

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Speaking of the consequences within the country, he added that this is a trajectory, a chain of events. It is based on the Supreme Court interpretation. The Court of Appeal said that there is no option as the Supreme Court has issued a determination, but to issue a writ of certiorari. This paves the way for other remedies to be considered on the basis that the entire process is null and void from the beginning. Then the new Chief Justices appointment is sought to be assailed on the grounds that there is no vacancy and the presidents appointment is sought to be quashed. With regard to the consequences outside the country, the Minister referred to the statements made to the effect that as you know the government has acted in defiance of the Supreme Court.. . He noted that the statement says that all of this will result in various problems including loss of potential investors because we are defying the Supreme Court and this has implications for the separation of powers. He noted that throughout history these are matters that have been dealt with by the Parliament and Parliament alone, and not by the Courts. He added that the government was condemned before anyone knew of the outcome. To condemn first and then inform later was an unorthodox interpretation of natural law. He noted that another statement inferred that the government has acted contrary to clear rulings by the Supreme Court and the Court of Appeal. The Commonwealth Secretary Generals statement notes that aspects of the Constitution of Sri Lanka are coming into question. The Minister added that criticism must be objective based on facts. It was important for the diplomatic corps to understand what has happened before any assessment or evaluation is made with regard to the impeachment of the Chief Justice. National Action Plan on the recommendations of the LLRC Minister Peiris thereafter invited Mr. Lalith Weeratunga, Secretary to H.E. the President to brief the diplomatic corps on the LLRC recommendations.

the LLRC which was presented some time ago, covered the period from 15 December
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Secretary to President stated that the National Action Plan on the recommendations of

2012 to 11 January 2013. His task was to enthuse, motivate and support the agencies involved. He noted that certain Ministries had made remarkable progress, including on land issues. Action by the Commissioner General of Lands will alleviate many issues in the North and the East. Circulars that had been issued were questioned in the Court of Appeal and quashed. He added that this has been taken note of to issue new circulars. He also stated that funds for 220 odd activities have been allocated to the Ministries this year through the budget presented by H.E. the President in November 2012 and that Rs. 750 million has been voted for various development activities. In addition, the Presidential Secretariat has been given an allocation which can be used if required. Since the allocated funds will be made available to the Ministries by mid January 2013, the bulk of the activities will be implemented in 2013. He expressed the view that most activities will show progress by the first quarter of 2013. He stated that since some activities had political connotations, there was no progress as yet. Other activities assigned to specific Ministries were progressing. The Ministry of Defence was working with the Ministry of Justice and the Attorney Generals Department. He added that updates were available on the website and further that he was available to answer queries either bilaterally or via e-mail. Secretary to the President requested the Ministry of External Affairs to have another meeting towards the third week of February 2013, to review progress. Minister Peiris suggested the 13th or 14th of February 2013 for the next briefing and invited the diplomatic to raise any questions. The US Ambassador commented that the US had been following updates on the database of the detainees. She noted that while the number of detainees had been provided, it was important for the families to have the names. Referring to a recent inquiry from the Senate Foreign Relations staff regarding the case of five students killed in Trincomalee and the 17 ACF workers, she expressed the hope that there would be more information by the next meeting or even before then.

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available before the next briefing.

Secretary to the President observed that he would try to have more information

The Ambassador for Germany inquired from when the time frame provided in the report had been calculated. Secretary to the President responded that the Action Plan was given to the Ministries in June 2012 with a lead time of two months. However, some Ministries could not start work due to the lack of funds. Where funds were not required, work commenced in August 2012 and where funds were required work commenced in January 2013. The High Commissioner for UK referred to the Court of Inquiry on the allegations of civilian casualties on page 1 and the date of completion of January 2013 and whether the results will be made public. He also inquired about the investigation into the Channel 4 issue which is due to commence when part one of the Court of Inquiry is over. He inquired whether this has commenced. Secretary to the President responded that once the Army and Navy complete their inquiry, they will submit tier findings to the Attorney General and if the latter has no issue, the findings will be made public. The same will apply to the Channel 4 issue.

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