A fundamental rights case by the Centre for Policy Alternatives (CPA) challenging the controversial installing of Mohan Pieris as de facto Chief Justice, fundamental rights cases challenging the so called impeachment of Chief Justice Dr. Shirani Bandaranayake disregarding Appeal Court and Supreme Court rulings, and cases challenging the validity of the controversial Parliament Standing Order 78A which was used to remove Bandaranayake without following basic principles of Natural Justice were taken up today (25.07.2013).
The cases were specially fixed before a bench of 5 judges chosen by Pieris. The judges were Saleem Marsoof (PC), Chandra Ekanayake, Sathya Hettige (PC), Eva S. Wanasundera (PC) and Rohini Marasinghe.
When the fundamental rights case by the CPA was taken up, counsel M. A. Sumanthiran told the court that like on the previous date, he points out that it is very wrong for Mohan Pieris (6th Respondent in the case) to pick some judges and leave others out in his own case. He said all judges must assemble and hear the case without the 6th Respondent playing any part in the process for hearing and deciding the case. Justice Marsoof said whatever it is, there is someone functioning as the Chief Justice and they have to obey his directives. Justice Hettige asked how many cases Sumanthiran has appeared in before Mohan Pieris. Sumanthiran responded that this is only because he is acting as de facto Chief Justice and not because he is legally the Chief Justice. But he said, it is very wrong for Pieris to play any role in the conduct of his own case, where he is a respondent party and has personal interest. This is the proper way to question and challenge the appointment, he added. He said that it is the duty of all Supreme Court judges to assemble and hear the case as it is their duty to do so. If any judges have any difficulty, he pointed out that under international standards and decided cases, they must come on the bench and state in public what their reluctance is. There must be transparency he said.
Deputy Solicitor General Shavindra Fernando objected to Sumanthiran’s request. Sumanthiran said if the judges want, he is even willing as a compromise to technically make an application to 6th Respondent Pieris (de facto CJ) that all judges must be allowed to sit by nomination, without any choice being made by him. However DSG Fernando appearing for the AG objected strongly to this request, saying Pieris alone must make a choice of the judges he wants for the case. The judges did not take the compromise proposal after DSG Fernando said that the judges might be found fault with if they ask CJ to nominate all judges.
Sumanthiran then moved to withdraw from the case, saying he does not wish to continue to appear in the case in such a situation. He informed the court that he has good cause to withdraw from appearing in the case anymore because a party to the case is being allowed to choose a bench for his own case against basic legal principles of Natural Justice. DSG Fernando then wanted the judges to quickly dismiss the case without the CPA being given any chance to retain any new counsel. However Justice Marsoof told the DSG that the petitioner CPA should not be denied a chance to be heard and issued notice on the CPA and its registered attorney at law to appear on 27.09.2013 and argue the case. That day itself, a ‘preliminary objection’ raised by the DSG is to be tried.
In the cases challenging Standing Order 78A, lawyers M. A. Sumanthiran and Viran Corea appearing for the original petitioners objected to the intervention applications. Junior President’s Counsel Nigel Hatch appeared for a lawyer and Prof. H. M. Zaffrullah appeared for a person claiming to be a politician. The objections to intervention were made, saying that they were clearly sent to argue on behalf of the Parliamentary Select Committee (PSC) members who did not want to defend their questionable actions themselves and that such actions should not be allowed. The judges allowed both people asking to intervene to enter the case to support the AG who is supporting the PSC’s conduct. President’s Counsel Ikram Mohamed who appeared for one of the original petitioners up to the last day now was not in court and the original petitioners in that case were not represented by any lawyer today. According to reliable sources Mohamed has shown reluctance to appear in the case after Pieris took control of the judiciary.
The judges told the original petitioners in the 4 cases challenging Standing Order 78A in the public interest, to file any responses of theirs to the issues in the paperwork filed by the 2 pro-regime persons allowed to intervene. They were given 4 weeks to do this. Other parties were told they can file any counter responses to it within 3 weeks after that. The cases were specially fixed for hearing on 23.10.2013 and 30.10.2013.
In an appeal against the Appeal Court ruling holding that the so called PSC findings were illegal and flawed, junior President’s Counsel Nigel Hatch asked to allow a public interest claiming party on whose behalf he make submissions in the Appeal Court though he was not allowed to intervene to now come into the appeal. He strongly criticised the Appeal Court judges for not allowing his request to intervene.
Counsel M. A. Sumanthiran appearing for R. Sampanthan (MP – TNA and PSC member) told court that Hatch was not making correct submissions and that Hatch’s client is not a necessary party and should not be allowed to interfere with the case being decided. All affected parties are before the court and in a writ case, each and every person who wants to say something doesn’t become entitled to interfere with the case by intervening as a busybody, he said.
Counsel Viran Corea appearing for Vijitha Herath (MP – JVP and PSC member) told court that he agrees with Sumanthiran’s submissions. He also said that what Hatch’s client is trying to do is to act as a proxy for government PSC members who did not have the sense of propriety to come to court and say what they had to say. Even if their position was that the court didn’t have jurisdiction, they should have come to court and said so out of respect for the judiciary and out of a sense of decency. When they have not done that, allowing Hatch’s client to act as their ‘proxy’ and make arguments they might have made is wrong and should not be allowed, he argued.
The judges gave Hatch’s client leave to appeal in the case after suspending their sittings for a while to decide what to do. The parties were told to file written submissions and the case was also fixed for argument on 23.10.2013.
After the highly condemned controversial 18th Amendment to the Constitution pushed through by the Rajapaksa regime, all judiciary appointments, promotions, postings and sackings are made by the ruling regime without checks and balances. The 18th Amendment erased the safeguards that were introduced through the 17th Amendment which was not properly followed by former President Chandrika Kumaratunga and after her President Mahinda Rajapaksa.