The controversial appeal by the Attorney General from the Appeal Court ruling that the so called impeachment inquiry of the Parliamentary Select Committee against Chief Justice Dr. Shirani Bandaranayake was taken up today (28.11.2013) before a special bench of 5 judges nominated by de facto Chief Justice Mohan Pieris.
The judges (S. Marsoof, Chandra Ekanayake, Sathya Hettige, Eva Shanthi Wanasundera & Rohini Marasinghe) were urged by Attorney General Palitha Fernando, to hold that no court has any right to go into (even look at) what Parliament does. He said that if court goes into the matter and holds the impeachment invalid, it would seem like the judges are biased. AG did not mention that the Parliamentary Select Committee (PSC) was consisted of majority of MPs under the Rajapaksa regime (obvious high bias), who misbehaved and abused Dr. Bandaranayake causing all opposition members to walk out in disgust and protest.
At one point, Justice Rohini Marasinghe observed that it seems clear that surely if the process is clearly wrong under the constitution, it is not sensible to say that court can’t make at least a declaration that there is unconstitutionality. She asked the Attorney General to respond on that. AG replied that unfortunately, courts can’t. AG first came into the case in the Appeal Court only on a special request by the Appeal Court judges to just assist them with submissions on the law (a status called in legal jargon as “amicus curiae” – court’s friend). The AG controversially turned into an appellant after the judgement, attacking the Appeal Court judgement through this appeal. According to reliable sources (who requested not to be named), this was due to heavy pressure from the Rajapaksa regime. Normally it is not for an “amicus curiae” to appeal against judgement. Protests against this by the parties to the case were earlier rejected by the same 5 judge bench.
Appearing for R. Sampanthan, MP (Tamil National Alliance – TNA) who was a PSC member who walked out of the kangaroo style PSC session protesting that this was no way to treat a judge or any lady, counsel M. A. Sumanthiran urged the court that only court is given the duty to interpret the Constitution, and that while it is Parliament that should impeach, if it is done against the Constitution and law, it is the court’s duty to go into the matter, when it effects rights of a citizen outside Parliament (in this case the Chief Justice) are being deprived without even basic requirements of fairness. He informed to the court, that in civilized democratic judicial systems, this principle has been upheld. He mentioned the example of the longterm position in the United Kingdom. He pointed out to court several judgements on these points in many countries and urged the judges to uphold judicial independence in the country by overruling the absurd arguments of the Attorney General. He asked the court to consider that judicial independence is a non-negotiable foundational basis of society, and that the manner of removal of a judge can only be properly looked at with that in mind. It is a duty that court should not wash its hands off, he said.
Counsel J. C. Welimuna made submissions, representing Vijitha Herath, MP (Janatha Vimukthi Peramuna – JVP) who also walked out of the PSC and reminded the judges of how the whole inquiry by the PSC was a sham. The government MPs (Rajapaksa controlled) who were controlling the PSC abused Chief Justice Bandaranayake, abused her, didn’t even allow her to properly know the charges or meet (clearly bogus) allegations. He said that all this is on record and that court must not fail to consider the seriousness of the matter and that it affects the future of the entire judiciary. He argued that if court fails to do so, the rule of law fails.
Both Sumanthiran and Weliamuna urged the court to hold that impeachment of a superior court judge can only be done constitutionally by passing a law to provide a proper, impartial procedure to properly inquire into any allegations. They warned that otherwise, there can never be judicial independence and rule of law for citizens of the land.
The lawyers were asked to file written submissions in this case. The court reserved its judgement. No date was given for delivering the judgement. This is normally what happens for Supreme Court judgements unlike other courts.
In the other similar appeal case fixed for today, junior President’s Counsel Nigel Hatch appeared for the appealing parties (actually Rajapaksa supporters say a source close to the regime) who were claiming public interest as their motive that tried unsuccessfully to intervene in the same original Appeal Court case. This appeal case was specially refixed for 20.12.2013 before the same 5 judges because the other case took up the whole of today.