Three fundamental rights applications bearing Nos. SC (FR) 665/2012, SC (FR) 666/2012 & SC (FR) 667/2012 filed by an artist, a trade unionist and a trade unionist cum lawyer seeking declarations from the Supreme Court that Standing Order 78A of the Constitution is ultra vires and null and void and of no force or effect in law in terms of the petitioners’ fundamental rights guaranteed under the Constitution, came up for hearing today (21.01.2013) in the Supreme Court before Justices Nimal Gamini Amaratunge, P. A. Ratnayake and Eva Wanasundera.
The petitioners in the three cases are Chandragupta Thenuwara (actor), Janaka Adikari (lawyer and trade unionist) and Mahinda Jayasinghe (trade unionist). They urge court through their petitions that the applications are made not merely in their own right but with the higher objective of safeguarding the rights and interests of the general public and securing due respect, regard for and adherence to the Rule of Law and the Constitution, which is the supreme law of the land. They urge that unless the court grants relief as sought, they and the citizens of Sri Lanka would be deprived of due protection of their fundamental rights by denying them the right to an independent judiciary.
The respondents are Chamal Rajapaksa
(Speaker of Parliament), Anura Priyadharshana Yapa, Nimal Siripala De Silva, Susil Premajayantha, Rajitha Senaratne, Wimal Weerawansa, Dilan Perera, Neomal Perera, Lakshman Kiriella, John Amaratunga, R. Sampanthan and Vijitha Herath (Chairman and Members of a Parliamentary Select Committee appointed for the impeachment of Dr. Shirani Bandaranayake
) and the Attorney General.
The Supreme Court had almost two months earlier, heard the counsel for the petitioners and the Deputy Solicitor General on behalf of the Attorney General and granted leave to proceed with these three applications, after they were supported (on 23.11.2012). The respondents were granted time to file objections (if any) to the grant of relief to the petitioners and the cases were fixed to be taken up for final hearing today (21.01.2013).
However, the respondents had not filed any objections to the grant of relief despite being granted the opportunity. Instead, when the cases were to be taken up for hearing today, Shavindra Fernando, Deputy Solicitor General made an oral application to court that steps be taken under Article 132(3)(iii) of the Constitution to refer the cases to the Chief Justice to constitute a divisional bench (comprising 5 or more judges) in view of the importance of the matter.
Counsel appearing for all three petitioners objected to this application, which they submitted should not be made on behalf of the Attorney General for several reasons, which they outlined through submissions.
M. A. Sumanthiran
, appearing for one of the petitioners urged that the matter could not be submitted to the Chief Justice, in view of the fact that the actual holder of the office of the Chief Justice (de jure
Chief Justice) in terms of the findings and pronouncements of courts (Dr. Shirani Bandaranayake) was being excluded from her Chambers and it was now being occupied by a person (a de facto
Chief Justice) who is not the legitimate Chief Justice, in what amounts to a usurpation of that important office. This was an obvious reference to the controversial Mohan Pieris
who is said to have been appointed by President Mahinda Rajapaksa
to fill a vacancy claimed to have been created for the position of Chief Justice through a process that has been widely condemned and strongly criticized locally and internationally as unconstitutional, lacking in due process, illegitimate, violating judicial independence and undemocratic. Therefore, he urged the court to hear the matter today and make judgment accordingly. He submitted that his position was based responsibly and purely on material findings of court which should be respected and given effect to by all citizens, and nothing else.
, appearing for another petitioner submitted that while he agreed with the submissions made by Sumanthiran, in any event, it was most improper and inappropriate for the Deputy Solicitor General to make such an application for postponement at this stage, given that he had appeared and strenuously opposed the grant of leave in November last year and if he considered it necessary to make such application, it should have been done much earlier with notice to the petitioners, rather than to raise it on the date fixed for the final hearing of the matter. He pointed out that in such circumstances, the court should reject the application by the Deputy Solicitor General which seemed to be designed to prevent the case from being taken up today. Even today, the Deputy Solicitor General is unable to set out the precise basis on which he urges the matter should be referred under Article 132(3)(iii). He urged that in terms of the provisions of Article 126(5) of the Constitution, the court is required to take up and conclude the matter as early as possible. For this reason as well, he urged that the case should be taken up and heard as originally fixed, today. He urged that the cases were important for the protection of judicial independence, in that no judge of the Supreme Court or Appeal Court should be ‘subjected’ to the blatantly unconstitutional process set out in Standing Order 78A, which he argued is ultra vires
and could not be validly acted on.
Suren Fernando appearing for the third petitioner submitted that while he agreed with the submissions of both counsel for the other two petitioners, he wished to further point out that the respondents, though given ample time to file any objections to the grant of relief had not done so, and none of the respondents (including the Attorney General) had even filed written submissions one week before the date fixed for hearing as required under Rule 45(7) of the Supreme Court Rules relating to Fundamental Rights applications under Article 126 of the Constitution. In these circumstances, he submitted that the court should not entertain such an unacceptable application by the Attorney General and urged that the matter be taken up for argument without delaying the matter as sought by the State. He also submitted that by not filing objections, the Speaker and the Parliamentary Select Committee members had effectively conceded to the grant of relief and no contrary position could now be taken on their behalf. He also submitted that several of the matters relevant to the application had already been clearly determined and pronounced upon in the petitioners’ favour in other court cases filed by other parties.
After hearing submissions, at the request of the Deputy Solicitor General, the court directed the Supreme Court Registrar to transmit the cases to the Chief Justice for consideration, as soon as the Attorney General indicates in writing the basis on which an application is made under Article 132(3)(iii) of the Constitution. No date was given for the cases to be taken up next.
M. A. Sumanthiran with Ermiza Tegal and Juanita Arulanantham appeared for Mahinda Jayasinghe.
Viran Corea with Bhavani Fonseka and Sarita De Fonseka appeared for Janaka Adikari.
Suren Fernando with S. A. Beling appeared for Chandragupta Thenuwara.
The Petitions were filed through Instructing Attorney, Sunil Watagala.
Shavindra Fernando, Deputy Solicitor General with Sanjay Rajaratnam, Deputy Solicitor General and N. Pulle, Senior State Counsel appeared for the Attorney General.