The controversial appeal by the Attorney General to the Supreme Court, challenging the Appeal Court ruling that the so-called ‘findings’ of the Parliamentary Select Committee (PSC) appointed on respect of purported allegations against Chief Justice Dr. Shirani Bandaranayake was taken up today (29.05.2013). Appeal case No. SC (Appeal) 67/2013 was listed before a bench consisting of Justices Saleem Marsoof, P. A. Ratnayake, Sathya Hettige, Eva Wanasundera & Rohini Marasinghe.

Chief Justice Shirani Bandaranayake

The benches are constituted by the Chief Justice, the powers of which are now being exercised by Mohan Pieris, who was controversially installed in office amidst outcry from almost the whole legal profession and civil society, with Bandaranayake being excluded from exercising her functions.

Attorney General Palitha Fernando, PC appearing with Additional Solicitor General, A. Gnanathasan, PC, Deputy Solicitors General, Shavindra Fernando and D. Nawaz, Senior State Counsel Nerin Pulle and State Counsel M. Jayasinghe sought to support the appeal.

J. C. Weliamuna with Sunil Watagala, Senura Abeywardena and Mevan Bandara appeared for the Respondent Vijitha Herath, Member of Parliament.

M. A. Sumanthiran with Viran Corea and Niran Anketell appeared for the Respondent R. Sampanthan, Member of Parliament.

Senior Counsel M. A. Sumanthiran and J. C. Weliamuna complained to court that the granting of special leave to appeal had been sought and obtained without respondents being noticed as required by law. They pointed out that Motions have been filed complaining of the serious irregularity.

Sumanthiran informed the Supreme Court that when steps were taken by the Registered Attorney of his client to check the position, he had been informed that the appeal record could not be even checked as it was lying in the chambers of the de facto Chief Justice (Mohan Pieris). The attention of court was drawn to the fact that this itself is highly inappropriate – for Pieris to have anything to do with the case.

Weliamuna also complained that it was never expected for steps to be taken behind the back of parties to the case by the AG, to get special leave to appeal in such an improper manner.

Counsel for the above Respondents pointed out that in all other cases, the Supreme Court complies with the fundamental entitlement of all parties to be noticed before reconsidering a court ruling by granting special leave to appeal.

Counsel for the Respondents informed court that they cannot agree to the integrity of the Supreme Court being compromised in this way. They stated that the correct thing to do would be to set aside the wrongful, irregular order granting special leave to appeal and to have the controversial appeal resupported with ALL parties noticed and given the opportunity to object, especially in the context of the AG taking steps to try and upset the Appeal Court ruling, not having even been a party to the original case.

The Court noted that Chief Justice Bandaranayake, the petitioner in the Appeal Court case had filed a Motion emphasising that she remains the legal Chief Justice and refusing to participate in the purported appeal proceedings. Counsel for the Respondents informed that ALL Respondents should have been noticed.

The judges looked at the case record and said that notices to the Respondents have not been delivered and queried whether the Respondents may have refused to accept notice. In response, counsel pointed out that if that was the case, an endorsement to that effect would have been made. There was no such endorsement.

Court was urged by Weliamuna and Sumanthiran, not to deny to the Respondents in this case, the rights ordinarily and always granted by the Supreme Court Rules and practice of court to parties in all other cases. It was also pointed out that there is no urgency in the appeal now, to the extent that the Appeal Court ruling was disregarded and the harm that would have been prevented by compliance with the ruling has already been done.

It was submitted that the practice of court is to re-issue notice. Weliamuna informed court that his client (Vijitha Herath) filed an affidavit informing that he knew about the case from newspaper reports. On 09.05.2013, lawyers checked the SC Registry and found that papers were not sent. When the Registrar (who was present in court) was asked about this, she claimed that it is about another notice that she spoke.

Palitha Fernando then took up the position that when a notice is dispatched, it should be presumed to have been received. He expressed keenness to have his appeal heard without the ex-parte order granting leave to appeal being reversed. Weliamuna urged the court to consider the obvious fact that there is no reason at all for his client not to participate in any hearing of submissions on whether to grant special leave to appeal, since he had participated in all connected cases.

Sumanthiran also pointed out to court that the issue of whether the AG (not being a party and merely amicus curiae in the original case) could only have been properly canvassed at the stage of support for grant of special leave to appeal (and not after leave is granted). This opportunity he submitted, was wrongfully denied to parties to the case. Weliamuna also submitted that this is a very serious issue and that any further proceedings to hear the final appeal on the basis of a blatantly wrongful order would be completely illegal and unconscionably improper.

The judges adjourned for over an hour saying they wanted to consider what to do. They returned and set aside the order granting special leave to appeal.

Court noted that on a motion of the Appellant, notices have been dispatched. However, a perusal of the docket reveals that most notices have not been delivered. Court took cognisance of the fact that Dr. Bandaranayake has indicated that she will not be participating in the appeal. The order was made, setting aside the order made ex-parte and the 11th and 12 Respondents (Vijitha Herath and R. Sampanthan) were granted the right to file caveat and appear in objection to grant of special leave to appeal.

The Court also took notice of the way in which notice has been dispatched, and held that despite the AG’s position that it was not necessary, the interests of justice required that the ex parte order be set aside with respect to the complaining Respondents.

The Court directed that the 11th and 12th Respondents should file caveat giving notice of intention to object to grant of special leave to appeal within one week.

The application was fixed for support for leave to appeal on 10.06.2013 before Justices Saleem Marsoof, Sathya Hettige and Eva Wanasundera.

Sumanthiran and Weliamuna submitted that any issue of final hearing of an appeal would only arise if special leave to appeal is granted on 10.06.2013.