Tamil National Alliance (TNA) MP, R. Sampanthan has also now file a Motion to the Supreme Court, in the controversial appeal to the Supreme Court by the Attorney General (Case No. – SC (Appeal) 67/2013) against the ruling by the Appeal Court that the so-called findings of a ‘Parliamentary Select Committee’ purportedly to inquire into so-called ‘charges’ against Chief Justice Dr. Shirani Bandaranayake.

Chief Justice Bandaranayake

We have in a previous report, explained the background and reported that Janatha Vimukthi Peramuna (JVP) MP, Vijitha Herath also protested to the Supreme Court through a Motion.

Both Sampanthan and Herath, who were parties to the original case in the Appeal Court, complain of steps taken behind their back to covertly obtain ‘special leave to appeal’ from the Supreme Court. The composition of the benches of the Supreme Court that preside over specific cases, is now decided on by de facto Chief Justice, Mohan Pieris after Bandaranayake was excluded from exercising her functions as de jure (legal) Chief Justice.

The Colombo Telegraph has been able to obtain the text of the Motion filed on behalf of Sampanthan by his lawyers, which is as follows:

We file herewith our appointment from the 11th Respondent-Respondent  abovenamed and MOVE that Your Lordships’ Court be pleased to accept and file same of record;

WHEREAS the 11th Respondent – Respondent received a notice dated 13th May 2013 informing him that Your Lordships’ Court has granted special leave to appeal in this matter and that the appeal will be heard on 29th May 2013;

AND WHEREAS this is the first time a formal notice from the Registrar of Your Lordships’ Court has been received by the 11th Respondent – Respondent, apart from a photocopy of a Motion seeking to amend the caption that was received previously;

AND WHEREAS Rule 8 of the Supreme Court Rules 1990 stipulates as follows:

“(1) Upon an application for special leave to appeal being lodged in the Registry of the Supreme Court, the Registrar shall forthwith give notice, by registered post, of such application to each of the respondents, in the manner hereinafter set out. There shall be attached to the notice a copy of the petition, a copy of the judgment against which the application for special leave to appeal is preferred, and copies of affidavits and annexures filed therewith.

(2) Such notice shall be in the prescribed form, and shall specify –

(a) that the respondent, if he intends to oppose the grant of special leave to appeal, shall lodge, within fourteen days of the receipt of such notice, a Caveat indicating such intention; and

(b) the date of hearing of the application (being a date not less than eight weeks after the lodging of the application)

Such notice shall be despatched within five working days after the application has been lodged.

(3) The Petitioner shall tender with his application such number of notices as is required for service on the respondents and himself together with such number of copies of the documents referred to in sub-rule (1) of this rule as is required for service on the respondents. The petitioner shall enter in such notices the names and addresses of the parties, and the name, address for service and telephone number of his instructing Attorney-at-Law, if any, and the name, address and telephone number, if any, of the attorney-at-law, if any, who has been retained to appear for him at the hearing of the application, and shall tender the required number of stamped addressed envelopes for the service of notice on the respondents by registered post. The petitioner shall forthwith notify the Registrar of any change in such particulars.

(4) Upon an application for special leave to appeal being lodged, the Registrar shall insert in the notices tendered by the petitioner the Supreme Court number allotted to the said application, and the date of hearing of the application, after consulting the petitioner. He shall issue one copy to the petitioner upon request, obtaining a written acknowledgement on the record itself; a copy of such notice shall not be posted to the Petitioner.

(5) The petitioner shall, not less than two weeks and not more than three weeks after the application has been lodged, attend at the Registry in order to verify that such notice has not been returned undelivered. If such notice has been returned undelivered, the petitioner shall furnish the correct address for the service of notice on such respondent. The Registrar shall thereupon despatch a fresh notice by registered post, and may in addition dispatch another notice, with or without copies of the annexures, by ordinary post.

He may, if he thinks fit, and after consulting the petitioner, substitute a fresh date of hearing, or direct that the matter be called in the Registry, o the date originally fixed for the hearing, for the purpose of fixing a fresh date of hearing.

(6) The respondent shall, within fourteen days of the receipt of such notice, enter an appearance in the Registry of the Supreme Court, and if he intends to oppose the grant of special leave to appeal shall lodge a Caveat indicating such intention.

(7) Not less than twenty one days before the date specified in the aforesaid notice as the date of hearing of the application, any respondent may lodge (with notice to the petitioner and other respondents) a statement, together with three additional copies thereof, setting out his objections to the grant of special leave to appeal or controverting the allegations of fact set out in the petition; where such statement contains allegations of fact which cannot be verified by reference to the judgment or order of the Court of Appeal in respect of which special leave to appeal is sought, affidavits and other relevant documents shall be annexed in support, and the provisions of rule 6 shall apply mutatis mutandis.”

AND WHEREAS several of the above mandatory provisions do not seem to have been complied with, in that, the 11th Respondent – Respondent was never served with notice of the application for special leave to appeal;

AND WHEREAS the 11th Respondent – Respondent has not been served with the Petition, Affidavit and annexes relating to the said application to date;

AND WHEREAS in the above circumstances the order granting special leave to appeal has been made per incuriam, in violation of the principles of natural justice and in breach of the aforesaid Rule and thus ought to be set aside ex debito justitea;

We respectfully MOVE that Your Lordships’ Court be pleased to set aside the said order granting special leave to appeal and cause the notice of same to be served on the 11th Respondent – Respondent to enable him to file a Caveat as contemplated under the aforesaid Rule and be heard in opposition to the grant of special leave to appeal on a date to be fixed for that purpose;

We also respectfully MOVE that  Your Lordships’ Court be pleased to  permit the Counsel for the 11th  Respondent-Respondent to  support this Motion when this  application is next taken up in   Your Lordships’ Court on 29th May 2013.

A  copy of this Motion  is being served  on  the Party Noticed (Amicus Curiae) – Petitioner – Appellant   by  Hand and  the relevant Proof  of Delivery shall be filed of record.