Lawyers have raised concerns of bias on the Supreme Court bench set to hear Mahinda Rajapaksa’s appeal against the interim order blocking him from functioning as Prime Minister in the Quo Warranto application filed in the Court of Appeal by 122 Parliamentarians who voted the former strongman out.

Justice Eva Wansundera

Lawyers for the 122 Petitioners in the Quo Warranto case filed a motion in Supreme Court today, objecting to Justice Eva Wanasundera being on the SC bench that will hear Rajapaksa’s appeal. The bench headed by Justice Wanasundera also includes Justices Buvaneka Aluvihare and Vijith Malalgoda.

Wanasundera is a Law College batchmate of Mahinda Rajapaksa and made her intimacy with the former President known publicly in an interview with the Deshaya Newspaper in July 2014. In the interview, Justice Wanasundera sets out how Mahinda Rajapaksa then the President invited her over and swore her in as a Supreme Court Justice. Pre 19th Amendment appointments to the Supreme Court did not need to be approved by the Constitutional Council, giving the executive presidency total control over who sits on the benches of the country’s apex court.
In their motion to the Supreme Court objecting to Wanasundera being on the bench, lawyers for the 122 petitioners note that counsel for Rajapaksa had insisted that the appeal be heard on Friday, December 14, when only one bench of the Supreme Court was scheduled to sit, comprising also of Justice Wanasundera. “Whereas the respondents are reliably informed that Hon Justice Eva Wanasundera had in an interview published in the Deshaya newspaper on July 6, 2014 that she was very close to Mr Mahinda Rajapaksa and who called her to meet him and offered her appointment to the Supreme Court bench. And whereas the said Mr Mahinda Rajapaksa is the petitioner whose appointment is the subject matter of this application.
“And whereas, in the circumstances the respondents entertain serious concerns pertaining to this matter being taken up by a bench of Your Lordships’ court, comprising Hon Justice Wanasundera who is listed to sit on the only bench to sit on Friday, December 14, 2018”, the motion filed by K Kanag-Iswaran PC in the Supreme Court today states.

Interestingly, when President Sirisena and the Rajapaksa family were plotting the coup in early October, the appointment of Eva Wanasundera as Chief Justice was a precondition of the alliance – a gesture of goodwill towards the Rajapaksas on the part of the President to prove he was committed to the political reunion. TheRajapaksas also demanded Sirisena appoint Deepali Wijesundera, currently a judge of the Appeals Court as a Supreme Court justice but this nomination was rejected by the Constitutional Council.

As Chief Justice Priyasath Dep retired in September, President Sirisena originally named Wanasundera as Chief Justice, but the move caused shock and outrage when news of his choice leaked, resulting in a hasty recall of the nomination and replacement with Nalin Perera, a career judge who worked his way up the ranks to the Supreme Court. Justice Wanasundera famously issued an injunction in 2015 preventing the arrest of former Defence Secretary Gotabaya Rajapaksa in the MiG-27 case being investigated by the FCID. She subsequently recused herself from hearing the same case. Her injunction however, remains in place to date, preventing the former Defence Secretary’s arrest in the controversial air force procurement scandal.

Justice Eva Wanasundera is set to retire in January 2019, and has declined to take new cases since October. It is unclear why she has agreed to hear Mahinda Rajapaksa’s appeal on the quo warranto interim order case.m

The Quo Warranto case will be heard by the Court of Appeal from January 16, but until the case is heard, the stay order preventing Rajapaksa from functioning as Prime Minister remains in place.