The Colombo Telegraph is able to reveal today through this exclusive report, documentary proof that de facto Chief Justice Mohan Pieris has interfered in fundamental rights case SC (FR) 23/2013, challenging his own appointment. He is a party to the case as the 6th respondent and stands to benefit or lose personally depending on the outcome of the case.
The case filed by the Centre for Policy Alternatives (CPA) and Dr. Paikiasothy Saravanamuttu, its Executive Director, asks the Supreme Court to declare as invalid and illegal, the so called appointment of Mohan Pieris to usurp the functions of the position of Chief Justice after the unconstitutional and illegal ouster of Chief Justice Dr. Shirani Bandaranayake. She was forcibly excluded from her office and from exercising her functions as the legal CJ, after a kangaroo style inquiry by a Parliamentary Select Committee dominated by nominees of the Rajapaksa regime, which acted contrary to established principles of Natural Justice to arrive at so called findings of guilt. The Rajapaksa controlled Parliament purported to impeach CJ Bandaranayake on the basis of these so called findings. These steps were in violation and disregard of two rulings of the Supreme Court and Appeal Court which held basically, that any impeachment required to be conducted through a proper impartial process through laws passed for the purpose.
The controversial so called impeachment resulted in strong protests and rejection by the legal profession, which refused to welcome Mohan Pieris as de facto Chief Justice and boycotted a sham ceremonial welcome for Pieris organized by a few pro-regime lawyers. There was widespread local and international criticism and condemnation of the so called impeachment, with the whole process widely recognized as a clear denial of the independence of the judiciary and a violation of established essential standards for there to be judicial independence.
The function of “listing” cases, though given by the Constitution to the Chief Justice is in practice exercised by what is commonly called as a “listing judge”. Therefore, when the CPA case challenging Pieris’ so called appointment was filed, it was sent by the Supreme Court Registrar on 21.01.2013 as usual to Justice K. Sripavan, as the judge in charge of listing new cases to be supported. Sripavan has made a direction to the SC Registrar on the same day (21.01.2013) in his own handwriting for the case to be taken up on 23.01.2013 with notice to the Attorney General. The journal entries confirm that on the very next day (22.01.2013), notices have been submitted and sent to the AG as required by Sripavan’s directive.
Recently, Colombo Telegraph reported that the team of counsels appearing for the petitioners (CPA & Dr. Saravanamuttu) withdrew from the case in protest, after 5 judges selected by Pieris to hear the case refused to allow an application that the case should be decided as a matter of duty by all judges of the Supreme Court (called as ‘full bench’ in legal jargon) without leaving out any judges, and that according to established standards clearly seen through much international case law, if any judge had any difficulty or reluctance to hear such a case, the reason why the duty to hear the case can’t be performed must be informed in open court for the knowledge, consideration and any relevant submissions of parties to the case.
Several respected retired judges and senior lawyers contacted by Colombo Telegraph who asked not to be named, confirmed that it is a very basic principle in any civilised justice system with integrity that a party to a case should not make any selective decision affecting who should hear the case, and that any judgement gained by such a selection would be void, illegal, extremely suspicious and damaging to the judiciary. Some of them however added that they understand the pressure a few judges are coming under while others are openly compromised, which though not a good enough excuse is a very real factor in what is sadly happening.
In this scenario, we are able to reveal today, how Mohan Pieris (6th Respondent in the case) has got the case submitted to himself on 12.03.2013 to select a bench. Having done that, in his own handwriting he has made a vague direction in the journal of the case record to the SC Registrar to speak to him on 27.03.2013. The Registrar as after that made a note on the record that the “CJ” was spoken to and that the file is to be resubmitted to him on 11.06.2013. The Colombo Telegraph notes that there is no transparency in what was discussed on 27.03.2013 even though Pieris is a party to the case and should not have been making any choices affecting the process of hearing of the case.
It is after this that the case which initially came up before a full bench of the Supreme Court, was ‘specially fixed’ before just 5 judges of the Supreme Court. The case record is now being kept from being accessed by reporters even though it is a public record. A source in the registry told us that the case record is now with Pieris himself to be sent to the Supreme Court when the case is taken up on 27.09.2013 before 5 judges nominated by him.
On the last date of the case, after the CPA’s lawyers withdrew from the case, the 5 judges told Deputy Solicitor General Shavindra Fernando that he can take up preliminary objections to the case on 27.09.2013, so that if the court rules in favour of the DSG, the case can be ended without going into the merits of the case. This was done without giving the CPA time to find a suitable counsel to undertake the case, which is what is normally done when counsels withdraw from a case for any reason.
According to reliable sources who requested not to be named, the judges are expected to somehow finish the impeachment cases and make orders that can be used to make some kind of an argument that Bandaranayake’s impeachment was legal, before the Commonwealth Heads of Government Meeting (CHOGM) is held in Colombo in November 2013. The removal of judicial independence by the controversial 18th Amendment to the Constitution and ouster of CJ Bandaranayake has resulted in great international and local concern and the highly questionable impeachment saga remains a huge embarrassment to the ruling Rajapaksa regime.
Published below are the above mentioned journal entries in the case record of SC (FR) 23/2013 that we have been able to get for the benefit of our readers.