21 June, 2021

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CJ Impeachment: Order Due On Preliminary Objections To Controversial Appeal By AG

The controversial Supreme Court leave to appeal application by the Attorney General from the Appeal Court ruling that the arbitrary findings of the Parliamentary Select  Committee (PSC) to conduct an inquiry to impeach Chief Justice Dr. Shirani Bandaranayake was illegal, was taken up today (10.06.2013) before a special bench set up to hear it. A previous ex parte order obtained quietly by the AG was set aside earlier after two of the respondents lodged strong written protest.

Chief Justice Shirani Bandaranayake

Those two respondents – Vijitha Herath, JVP MP and R. Sampanthan, TNA MP who had walked out of the PSC protesting its misconduct of proceedings and lack of due process, had filed further written preliminary objections dated 07.06.2013, to be considered by the Supreme Court today. They were to the effect that the AG has no standing as a non-party to the original case, having merely been requested by the Appeal Court to assist (as amicus curiae – a friend of court) by making submissions. He now seeks to upset the ruling, which none of the parties have appealed.

Counsel for the 11th Respondent M. A. Sumanthiran told the court that the Attorney General has tried to make an appeal as an ‘interloper’. Attorney General Palitha Fernando, PC objected strongly to the term. However Sumanthiran said this is the correct term to use as per the legal precedents. He said his submissions are intended to protect the honour of the court, and not for any personal gain of his client. Therefore he said, though his submissions are uncomfortable to some, it is well meant and purely to protect the integrity of the judicial function. He urged the court not to depart from over 200 years of judicial tradition.

Sumanthiran also told the Supreme Court that the appeal is not maintainable since no supporting affidavit was filed by the AG, and also matters of fact are contained in the appeal petition. He submitted that the Supreme Court Rules have been consistently held by the court to be mandatory. The AG had also failed to serve notice on all respondents as required by the Supreme Court Rules. He cited several cases to support his submissions on the compulsory nature of the applicable rules. He argued that while mere technicalities must not stand in the way of justice,  non compliance with mandatory rules, the Supreme Court has previously held, must necessarily result in immediate dismissal.

The court was asked to note that the AG had failed to file an affidavit supporting his so-called petition.

Sumanthiran asked court to consider that the executive ignoring the court ruling, excluding the legal CJ from her chambers and installing someone else in her place is now called by lawyers, as ‘darkness that fell at noon’, the recurring of which judges are now threatened with. Having acted in this highhanded way, to try and get the Supreme Court to scrap the violated court order is nothing but sheer abuse of court, he said. He urged the court to reject the puerile attempt of the AG to use the Supreme Court as a cat’s paw to whitewash misconduct of the powerful executive. He said the legal/judicial system must reject such misconduct.

Weliamuna argued that there is now no point in trying to overturn an ignored court ruling. He said that the AG was qualified to be amicus, only because he was not a party. Therefore he clearly had no right whatsoever in law to file an appeal in this case. He pointed out that the case LRC vs. Grand Central case clearly emphasized that the AG should not step out of his established role and should not act in a way that his impartiality becomes ‘suspect’ because the ultimate sufferer would br justice itself.

The AG, Palitha Fernando said that he is entitled to make the appeal and that he took steps to tender notices to the SC Registry, which were not sent out. He suggested to the judges that they could interpret Article 128 of the Constitution in a way that would enable him to maintain his appeal. He claimed to be acting in the public interest.

The 5 judges selected to hear the case were Justices S. Marsoof (PC), P. A. Ratnayake (PC), Sathya Hettige (PC), Eva Wanasundera (PC) and Rohini Marasinghe.

The court asked all the counsel in the case to file written submissions by this Friday (14.06.2013) and reserved its order on whether it was upholding the preliminary objections or rejecting them and allowing the AG to appeal. This means the date for delivering the order is not known and should be informed to the lawyers of the parties as and when it is to be delivered.

Attorney General Palitha Fernando (PC) with Additional Solicitor General A. Gnanathasan (PC), Deputy Solicitor General D. Nawaz, Deputy Solicitor General S. Rajaratnam, Senior State Counsel Nerin Pulle and State Counsel M. Jayasinghe appeared to support the application for special leave to appeal. M. A. Sumanthiran with Viran Corea and Niran Anketell appeared for R. Sampanthan instructed by Mohan Balendra. J. C. Weliamuna with Pulasthi Hewamanna and Mevan Kiriella-Bandara appeared for Vijitha Herath instructed by Sunil Watagala.

Here is the full text of the objections filed by R. Sampanthan (11th respondent) which the Colombo Telegraph has been able to obtain:

IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an application for Special Leave to Appeal against the Judgement of the  Court of Appeal  under and  in terms of Articles 128 (2) of the Constitution of the Democratic Socialist Republic of Sri Lanka

Dr.  Upathissa Atapattu Bandaranayake Wasala Muduyanse Ralahamilage Shirani Anshumala Bandaranayake.

Residence of the Chief Justice of Sri Lanka

129, Wijerama Mawatha,

Colombo 07

 

Presently at:

No. 170, Lake Drive

Colombo -08

PETITIONER

S C  Appeal No. 67/2013

SC (SPL) LA Application No:  24/2013

CA (Writ) Application No : 411/2012

                                                                        Vs.

1. Hon. Chamal Rajapakshe,

Hon. Speaker of Parliament, Speakers Residence

Sri Jayawardenepura, Kotte

2. Anura Priyadarshana Yapa,

Eriyagolla

Yakwila

3. Nimal Siripala De Silva, 93/20, Elvitigala Mawatha

Colombo 8

4. A D Susil Premajayantha, 123/1, Station Road

Gangodawila

Nugegoda

5. Rajitha Senarathne,

C.D. 85, Gregory’s Place

Colombo  7

6. Wimal Weerawansa, 18, Rodney Place

Cotta Road

Colombo  8

7. Dilan Perera,

30, Bandaranayaka Mawatha

Badulla

8. Neomal Perera,

3/3, Rockwood Place

Colombo 7

9. Lakshman Kiriella,

121/1, Pahalawela Road

Palawatta

Battaramulla

10. John Amaratunga,

88, Negombo Road

Kandana

11. Rajavarothiam Sampanthan,

2D, Summits Flats

Keppetipola Road

Colombo 5

12. Vijitha Herath,

44/3, Medawaththa Road

Mudungoda

Miriswaththa

Gampaha

2nd – 12th Respondents  Members of the Select Committee of Parliament  appointed with regard to the charges against the Chief  Justice

Also of; Parliament of Sri Lanka

Sri  Jayawardenapure, Kotte

13. W B D Dassanayake

Secretary General of Parliament

Parliament Seceretariat

Parliament of Sri Lanka

Sri Jayawardenepura Kotte

 

RESPONDENTS

AND NOW BETWEEN

Hon.  Attorney – General

Attorney General’s Department

Colombo 12

PARTY NOTICED (AMICUS CURIAE) – PETITIONER

 Vs.

Dr. Upathissa Atapattu Bandaranayake Wasala Muduyanse Ralahamilage Shirani Anshumala Bandaranayake.

Residence of the Chief Justice of Sri Lanka

129, Wijerama Mawatha,

Colombo 07

Presently at:

No. 170, Lake Drive

Colombo -08

PETITIONER – RESPONDENT 

Vs.

1. Hon. Chamal Rajapakshe,

Hon. Speaker of Parliament,

Speakers Residence

Sri Jayawardenepura, Kotte

2. Anura Priyadarshana Yapa,

Eriyagolla

Yakwila

3. Nimal Siripala De Silva,

93/20, Elvitigala Mawatha

Colombo 8

4. A D Susil Premajayantha,

123/1, Station Road

Gangodawila

Nugegoda

5. Rajitha Senarathne,

C.D. 85, Gregory’s Place

Colombo  7

6. Wimal Weerawansa,

18, Rodney Place

Cotta Road

Colombo  8

7. Dilan Perera,

30, Bandaranayaka Mawatha

Badulla

8. Neomal Perera,

3/3, Rockwood Place

Colombo 7

9. Lakshman Kiriella,

121/1, Pahalawela Road

Palawatta

Battaramulla

10. John Amaratunga,

88, Negombo Road

Kandana

11. Rajavarothiam Sampanthan,

2D, Summits Flats

Keppetipola Road

Colombo 5

12. Vijitha Herath,

44/3, Medawaththa Road

Mudungoda

Miriswaththa

Gampaha

2nd – 12th Respondents  Members of the Select Committee of Parliament  appointed with regard to the charges against the Chief  Justice

Also of; Parliament of Sri Lanka

Sri  Jayawardenapure, Kotte

13. W B D Dassanayake

Secretary General of Parliament

Parliament Seceretariat

Parliament of Sri Lanka

Sri Jayawardenepura Kotte

 

  RESPONDENTS –RESPONDENT

 

On this 7th day of June 2013 day of June 2013

Statement of Objections in terms of the Supreme Court Rules of 1990

The 11th Respondent-Respondent (hereinafter also referred to as ‘the 11th Respondent’) appearing by his Registered Attorneys-at-Law, Sinnadurai Sunderalingam and Balendra states as follows:

(A)   FATAL NON-COMPLIANCE WITH SUPREME COURT RULES

  1. The 11th Respondent states that he was not served with notice, pleadings or documents pertaining to the instant purported application for Special Leave to Appeal prior to the matter being taken up for support on 30 April 2013.
  1. The 11th Respondent further states that the record bears out that Notices [without documents] for the 1st – 10th and 13th Respondents were tendered to the Registry of the Supreme Court by the Attorney at Law for the Petitioner only on 22 March 2013.
  1. Thus and otherwise, the 11th Respondent states that this application for Special Leave to Appeal has not been made in compliance with the mandatory provisions of Rule 8 of the Supreme Court Rules.
  1. Rule 8(1) of the Supreme Court Rules mandates “[u]pon 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….” Rule 8(3) states that “[t]he Petitioner shall tender with his application such number of notices as is required for service on the respondents and him 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…”
  1. Your Lordships’ Court has consistently held and upheld that failure to comply with Rule 8 of the Supreme Court Rules is fatal to the right of a Petitioner to prosecute his application, and accordingly warrants dismissal in limine.
  1. In the case of Sudath Rohana and Another v. M C M Seen [SC HC CA LA 111/10, Supreme Court Minutes of 17th March 2011], Your Lordships’ Court dismissed the appeal on a preliminary objection raised by the Respondent upon the failure of the Petitioner to tender notice to be delivered to the Respondents.
  1. Moreover, in A. H. M. Fowzie & others v. Vehicles Lanka (Pvt) Ltd. [2008 BLR 127], Court held unequivocally inter alia, that:

(a)   Mere technicalities should not be thrown in the way of the administration of justice;

(b)   An objection raised on the basis of non-compliance with a mandatory Rule such as Rule 8 of the Supreme Court Rules of 1990 cannot be considered as a mere technical objection;

(c)    Where there has been non-compliance with a mandatory Rule such as Rule 8(3), serious consideration should be given for such non-compliance as that kind of non-compliance by a party would lead to serious erosion of well established Court procedure in our Courts, maintained throughout several decades; and

(d)   Non-compliance with Rule 8(3) would result in the dismissal of the application.

  1. Accordingly, this purported application ought to be disallowed and dismissed in limine without a need to go into any other matters/issues.
  1. In any event and without prejudice to the above, the 11th Respondent further states as follows.

(B)   COMPLY AND COMPLAIN – ATTORNEY GENERAL CANNOT SEEK TO REPRESENT THE STATE INTERESTS AND MAKE AN APPEAL AGAINST A JUDGMENT WHICH THE STATE HAS FAILED TO COMPLY WITH

  1. The Executive and Legislature of the State have acted in deliberate disobedience to a judgment delivered by the Court of Appeal after an opportunity was given for all parties, as well as the Attorney General as amicus curiae, to be heard.
  1. It is a cardinal principle that any person claiming to be aggrieved by a judgment, ruling or order of court is required to ‘comply and complain’. However, in this instance the Executive and Legislature have caused the State to disregard and disobey the judgment of the Court of Appeal.
  1. The Attorney General is not a part of the judiciary. He represents the interests of the Executive in litigation and advises the Executive in respect of same.
  1. In the circumstances, the Attorney General is not entitled to seek to have the judgment of the Appeal Court set aside or varied, being an effective extension of the Executive which violated the judgment of the Court of Appeal in CA Writ Application 411/2012 dated 7 January 2013.

(C)   ATTORNEY GENERAL NOT ENTITLED TO SEEK TO INTERFERE WITH APPEAL COURT JUDGMENT AS AMICUS CURIAE (AND A NON-PARTY TO THE CASE)

  1. The Attorney General has no standing or legal authority whatsoever in law to invoke Your Lordships’ Jurisdiction under Article 128(2) of the Constitution, for inter alia, the following reasons:

a)      The Attorney General was requested by the Court of Appeal to assist court as amicus curiae in CA Writ Application 411/2012 and was noticed by the Registrar and the Attorneys for the Petitioner on 3January 2013 pursuant to a decision by the Court of Appeal that “the Attorney General’s participation in this case as amicus curia will assist this Court in arriving at its finding and therefore the Divisional Bench directs that notice be sent out to the Attorney General, to be present in this Court at the argument.”

b)      Thus, the Hon. Attorney General’s participation in CA Writ Application 411/2012 was not as a party to the proceedings, but merely as a friend of the court to assist the court.

c)       Your Lordships’ Court have sometimes invited senior counsel – including the Attorney General – to assist court as amicus curiae by addressing questions of law relating to matters of public importance. In some cases, such as in Chandrasena vs. de Silva [63 NLR 143] the Supreme Court held that in applications relating to mandates in the nature of writs of Certiorari and Mandamus, there is no provision for intervenients to take part in proceedings. Having held thus, the Court held that “this order will not prevent Mr. Siriwardene being heard as amicus curiae on any question of law that may arise, on which his assistance may be required.” Thus and otherwise, there is a clear distinction between a party to an action and amicus curiae.

d)      Moreover, it is trite law that an amicus curia is not a “party” to an application and as such, is not entitled by the rights or burdened by the obligations conferred or imposed upon a party.

e)      Thus, the Hon. Attorney General is not a “Party Noticed [Amicus Curiae]” as described in the Caption and paragraph 1 of the purported Petition, since the Hon. Attorney General was not a party to the application in the Court of Appeal and was merely amicus curia. The said appellation “Party Noticed [Amicus Curiae]” is unknown to the law and is in fact a contradiction in terms, since amicus curiae are distinct from parties to a case. The mere fact that amicus curiae may be noticed to assist court does not render the amicus a party to the application.

f)       An amicus curia is not entitled in law to prefer an appeal against a judgment and it is a right only of the aggrieved parties, in terms of Article 128[1] read with Article 128[2], to decide whether to take steps to seek special leave to appeal the judgment or not. The Attorney General has no mandate, authority or inherent power to seek to deny parties to a case of the benefit of a judgment that has not been challenged by any of the parties to the case.

g)      Moreover, in the particular circumstances of the case, such undue action reflects compromise of the degree of independence required of the office of the Attorney General in terms of constitutional conventions, traditions and standards to be followed by the legal and judicial system.

h)      The instant purported application has arisen as a result of unconstitutional executive actions impeaching the Chief Justice in violation of rules of Natural Justice, and in all the circumstances, this purported application by the Attorney General is evidently an abuse of the process of court. The office of the Attorney General is now placed under the President in terms of Article 44(2) of the Constitution, contrary to the long standing practice of the Attorney General being placed under the Ministry of Justice.

  1. Furthermore, Your Lordships’ Court have clearly defined the term ‘aggrieved party’, who is entitled in law to prefer an appeal against a judgment of the Court of Appeal under Article 128 of the Constitution. (VideMendis v. Dublin De Silva 1990 2 SLR 249). In that case, it was held that: “In terms Article 128(1) of the Constitution an appeal lies to the Supreme Court at the instance of an aggrieved party. Such a party must be a party who has suffered a legal grievance, a party against whom a decision has been pronounced which wrongly deprived him of something or wrongly affected his title to something. These attributes are not present in the 5th defendant and therefore the appeal should be rejected.”
  1. The Hon. Attorney General has not suffered a legal grievance and is not a party who was “wrongly deprived” of something or “wrongly affected” by the impugned judgment of the Court of Appeal. In fact, if it were the case that the Hon. Attorney General would have been “wrongly deprived” or “wrongly affected” by the reliefs sought in the Petition in CA Writ Application 411/2012, it was open to him to have moved to have that application dismissed for non-joinder of parties, or moved to be added as a party. He did not. Thus, the Hon. Attorney General – as evidenced by his own conduct – is not an ‘aggrieved party’ within the meaning of the law.

(D)   THIS PURPORTED APPLICATION – AN ABUSE OF PROCESS OF COURT WHICH SHOULD NOT BE ALLOWED

17. The purported motion to impeach Chief Justice Hon. Dr. Shirani Bandaranayake was debated in Parliament on 10 and 11 January 2011, and the President made a purported Order purportedly effecting her removal on or about 13 January 2013. In these circumstances, no further steps were to be taken to comply with the judgment of the Court of Appeal.

18. Both Parliament and the President have not followed and/or have effectively rejected the judgment of the Court of Appeal in CA (Writ) 411/2012.

19. The instant application has evidently been made by the Attorney General as a functionary and/or agent and/or instrument and/or operative of the Executive for the collateral purpose of seeking to legitimize the illegal actions of Parliament and the Executive. Accordingly, the Supreme Court ought not to entertain such an application.

20. The incumbent Chief Justice Dr. Shirani Bandaranayake was in fact de facto removed by the President, who proceeded thereafter to purport to appoint another person i.e. Mr. Mohan Pieris, President’s Counsel to function as Chief Justice of the Republic.

21. This application was filed by the Hon. Attorney General on 18 February 2013, six weeks after the impugned judgment of the Court of Appeal and without seeking Leave to Appeal from the Court of Appeal itself.

22. This Court should not, in the attendant circumstances, lend itself to an exercise evidently motivated by the intention of seeking to cover up the culpability of the Executive that failed to duly respect the need to comply with and duly respect the role of the judiciary and jurisdiction of court.

(E)    ATTORNEY GENERAL HAS FAILED TO FILE AN AFFIDAVIT IN SUPPORT OF HIS PURPORTED APPLICATION

23. In any event and without prejudice to the foregoing, the Attorney General has failed to file an affidavit in support of the allegations of fact set out in his purported application which is now before Your Lordships’ Court.

24. Thus and otherwise, there has been a failure to comply with the requirements mandated by Rule 6 of the Supreme Court Rules.

25. Furthermore, without prejudice to the above paragraphs the 11th Respondent-Respondent states as follows:;

a)      The 11th Respondent participated in the Parliamentary proceedings of the impeachment and consistently maintained that they were contrary to rules of Natural Justice and acceptable norms required and expected for inquiry in respect of a judge of the Supreme Court or Court of Appeal. These facts are borne out from the Parliamentary proceedings recorded at the Committee Sittings;

b)      A Parliamentary debate was conducted on 10 and 11 January 2011 and a motion was passed on the basis of a hurriedly concluded Committee Report. The motion recommended appointment of a Select Committee to consider whether to impeach Chief Justice Hon. Dr. Shirani Bandaranayake, which was used as the basis to vote in respect of impeachment instead of appointing another Select Committee;

c)       The Executive now seeks to use these proceedings to create a veneer of legitimacy abusing the office of the Attorney General, without any of the parties to the case making any appeal to Your Lordships’ Court.

26. Accordingly, this purported application is in any event bad in law, fatally flawed and liable to be dismissed in limine by Your Lordships’ Court.

27. An affidavit of the 11th Respondent-Respondent is appended hereto in support of the averments hereof.

WHEREFORE the 11th Respondent prays that Your Lordships’ Court be pleased to:

a. Reject and/or dismiss in limine the instant purported application of the Petitioner for Special Leave to Appeal;

b. Grants costs;

c. Grant such further and other reliefs as to Your Lordship’s Court seems meet.

Attorney at Law for the 11th Respondent-Respondent

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Latest comments

  • 0
    0

    I wonder whether fake dogs will ever understand what the Law is.

    • 0
      0

      So long mahadanamutta – the leader of the nation is not ready to make sine qua non – we will be compelled to see happening things similar to calculated fates in this country – days ahead of the country will be even brutal.

    • 0
      0

      Jayantha,
      I agree with you.

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