Colombo Telegraph

CJ Impeachment Cases – MPs Herath & Sampanthan Urge SC By Motion – Don’t Deny Us Rights Of A Party To An Appeal

Vijitha Herath (Member of Parliament, Janatha Vimukthi Peramuna – JVP) and R. Sampanthan (Member of Parliament – TNA) who are respondents in a controversial appeal filed by the Attorney General (AG) to reverse Appeal Court and Supreme Court rulings that held the kangaroo style Parliamentary Select Committee (PSC) findings against Chief Justice Dr. Shirani Bandaranayake unconstitutional and illegal, have filed motions underscoring that they should not be denied their rights to be heard – both in objection to leave to appeal being granted, and also to raise any relevant questions of law if court decides to grant the AG leave to appeal.

Chief Justice Shirani Bandaranayake

Herath and Sampanthan were both members (from the Opposition) appointed to the PSC, who walked out in protest and disgust at the dishonest and improper way in which the majority government members acted and misbehaved. The way in which the inquiry was misconducted drew strong criticism and condemnation locally and internationally including from the legal profession (Bar Association of Sri Lanka – BASL) itself, which for the first time ever boycotted in protest, a sham ceremony organized by a few pro-government lawyers to welcome the de facto Chief Justice Mohan Pieris who was installed to run the judiciary.

The Shirani Bandaranayake impeachment and Pieris appointment related cases are due to be taken up tomorrow (16.07.2013) morning by a ‘special bench’ made up of 5 judges. (See our earlier report). The court has been asked to make a ruling on the matters put down in the Motion tomorrow (16.07.2013).

The Colombo Telegraph is able to publish today the full text of the Motion filed in the Supreme Court Registry on behalf of Vijitha Herath, for the benefit of our readers:

WHEREAS the 11th Respondent and the 12th Respondent made applications to Your Lordships’ Court to have the ex parte order secured by the Attorney General from Your Lordships’ Court granting leave to appeal  set aside;

AND WHEREAS accordingly when this matter was taken up on 29 May 2013, Learned Counsel made application for the said order secured ex parte set aside;

AND WHEREAS accordingly Your Lordships’ Court made order setting aside the ex parte order dated 30 April 2013 granting leave to appeal as against the 11th and 12th Respondents and had the case listed for 10 June 2013 for support by the Attorney General;

AND WHEREAS the audio recording of the proceedings of court on 10 June 2013 would bear out and the Attorney General could confirm, when this matter was taken up on 10 June 2013, it was agreed and understood that:

(a)  the preliminary objections raised by the 11th and 12th Respondents to the maintainability of this appeal by the Attorney General would be gone into first; and

(b)  the parties before court would be heard on the substantive matters in objection to the grant of leave to appeal thereafter and allowed to suggest any further or other questions of law if the preliminary objections were not upheld;

AND WHEREAS therefore submissions of the 11th and 12th Respondents and the Attorney General to court were restricted by all parties to the preliminary issues raised as to the maintainability of the application for leave to appeal by the Attorney General alone;

AND WHEREAS Your Lordships’ Court delivered an order dated 28 June 2013 rejecting the preliminary issues raised on behalf of the 11th and 12th Respondents and granting leave to appeal in respect of the same ‘questions of law’ on which the Attorney General had obtained leave to appeal without notice to this Respondent;

AND WHEREAS thus, the 11th and 12th Respondents have neither been heard in respect of the substantive matter in objection to the grant of leave to appeal on the ‘questions of law’ nor allowed opportunity for the 11th and 12th Respondents  to raise questions of law for consideration by Court;

AND WHEREAS Learned Counsel for the 11th and 12th Respondents informed Your Lordships’ Court of the aforesaid circumstances when the said order rejecting the preliminary objections was delivered;

AND WHEREAS Your Lordships’ Court indicated that the matter may be raised when the case is listed before the Supreme Court on 16th July 2013;

AND WHEREAS the 12th Respondent respectfully seeks to exercise his right to be heard in objection to the grant of leave to appeal vis-a-vis the substantive matter sought to be canvassed in appeal and to raise such other or further questions of law as becomes pertinent in the event of leave to appeal being granted on any one or more of the issues raised by the Attorney General;

AND WHEREAS it is respectfully urged that accordingly the order dated 28 June 2013 granting leave to appeal:

(a)  on the ‘questions of law’ proposed by the Attorney General without hearing the 11th and 12th Respondents in respect thereof; and

(b)  without permitting the said Respondents the opportunity to raise such other or further questions of law on the matter in appeal if Your Lordships’ Court is inclined to review the judgment on the basis of any one or more question of law proposed by the Attorney General;

is erroneous, per incuriam and inconsistent with the Principles of Natural Justice and warrants being set aside and/or varied to such extent.

I respectfully MOVE that Your Lordships’ Court be pleased to permit the 12th Respondent to be heard in respect and support of the matters set out hereinabove when this matter is taken up in Open Court on 16th July 2013.

A copy of this Motion has been dispatched to the Attorney General by registered post in proof whereof the relevant Registered Postal Article is appended hereto.

Attorney at Law for the 12th Respondent

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