By Colombo Telegraph -
SC (FR) 23/2013 filed by the Centre for Policy Alternatives (CPA) and its Executive Director, Dr. Paikiasothy Saravanamuttu challenging the controversial Mohan Pieris, PC (6th Respondent in the case) exercising the powers and functions of the Chief Justice without a legal vacancy in terms of court rulings as to the requirements of the Constitution after the incumbent Chief Justice Dr. Shirani Bandaranayake was forcefully excluded from exercising her functions by the regime of President Mahinda Rajapaksa, came up today (06.02.2013) before Justice Shiranee Tilakewardane, Justice S. I. Imam and Justice Priyasath Dep (PC).
Earlier, lawyers for the petitioners had moved court by a motion dated 28.01.2013 that the whole bench of the Supreme Court should hear the case, since it would not be proper for Pieris to select judges to hear the case.
It emerged when the case was taken up, that although the case was placed on the list of cases for support on 06.02.2013, the 6th respondent Pieris (who was neither present nor represented by a lawyer in court as a party) had made a minute on the case record (a journal entry) on 01.02.2013, that the case should be taken off the list of cases to be supported and only mentioned. He had minuted that he orders this with a view to considering whether the case should be taken up along with cases SC (FR) 665/2012, 666/2012 and 667/2012. The Colombo Telegraph notes that those three cases are filed by three other parties challenging the legality of the Standing Order 78A, which although held unconstitutional and lacking due process was used by the Rajapaksa regime to boot Dr. Bandaranayake from office, in a move widely condemned by the legal fraternity, opposition and international community as a serious violation of judicial independence. Pieris is not made a party to those cases which were filed before he was installed in the office of Chief Justice. Those cases are now in limbo after a request of Shavindra Fernando, Deputy Solicitor General made to court for them to be sent to the ‘Chief Justice’ to constitute a fuller bench. No date of hearing has been given for those cases to date.
The Colombo Telegraph is reliably informed that immense pressure is being exerted on the Supreme Court judges by the Rajapaksa regime to somehow reverse the earlier Supreme Court determinations through those cases, in an attempt to try and give the act of ousting Bandaranayake at least some appearance of legality. Some judges had received phone calls and visits from various intermediaries offering various inducements if they cooperated to make the ousting seem proper. Judges are limited in the extent to which they can act without fear against such attempts at influence because of the fact that after the 18th Amendment to the Constitution, all appointments and promotions to high judicial office (and high public office) are effectively at the sole discretion of President Rajapaksa. Also, any judge seen as disloyal or an obstacle to the wants of the regime runs a real risk of impeachment without due process as Bandaranayake did. This has been the focus of widespread grave concern expressed at both local and international level.
In this situation, the 6th respondent had directed through his minute in the case filed by CPA, that it is to be considered whether this case should be taken up along with the other three cases. He had further minuted that the CPA case should be resubmitted to him to make an appropriate direction as to the constitution of the bench.
When the case was taken up, M. A. Sumanthiran, senior counsel for the petitioners submitted to the court that he was compelled to inform court with due respect that it is completely improper for the 6th respondent Pieris to purport to make such a direction, since he should not play any role in choosing judges to hear his own case, in that he has a personal interest in the matter. He further submitted that this is why a Motion was filed with notice to all respondents (including Pieris), that all judges of the Supreme Court should hear the case without any selection of members. This he submitted with reference to decided legal authorities, is essential to safeguard the dignity and integrity of the judiciary.
Ronald Perera, PC appeared for the 3rd respondent Ranil Wickremesinghe and agreed completely with the legal submissions and issues raised by Sumanthiran.
Shavindra Fernando, Deputy Solicitor General who appeared for the Attorney General insisted that the matter should be submitted to the ‘Chief Justice’. However, he did not address on the serious issues of conflict of interest Sumanthiran pointed out would arise, if this is done.
After hearing submissions, the court directed for the case to be mentioned on 05.03.2013, with the matter of reference of the case to a full bench as asked by the petitioners to be considered by then.
Several leading legal experts contacted by The Colombo Telegraph said on condition of anonymity that in view of the developments, it would be completely improper for Pieris to play any role at all in the listing, hearing or deciding of this case or even the other three he had referred to in his minute, since he has an obvious personal interest in their outcomes and the Rules of Natural Justice prevent him from in any way influencing their outcomes. They however welcomed the decision of the court today as a step in the right direction, since if a full bench is constituted there may be a possibility of some impartial rulings from any judges brave enough to be undeterred by the threats now faced by judicial officers.
What happens hereafter remains to be seen.
M. A. Sumanthiran with Viran Corea, Bhavani Fonseka, Suren Fernando, S. A. Beling and Luwie Ganeshathasan instructed by Namal Rajapakse appeared for the petitioners. Ronald Perera, PC appeared for the 3rd respondent Ranil Wickremesinghe. Shavindra Fernando, Deputy Solicitor General with Sanjay Rajaratnam, Deputy Solicitor General and N. Pulle, Senior State Counsel appeared for the Attorney General.