By Elmore Perera –

Elmore Perera

In his editorial in the Island of 12th April, 2015, under this caption the Editor stated, inter alia, that

“One of the best things that the present administration did was to get rid of a Chief Justice who by no stretch of imagination could have been judged as independent, restore for a day his predecessor who was dumped in the worst possible manner and thereafter appoint the most senior Judge of the Supreme Court as the new Chief Justice.”

“All kinds of sorry deals are being struck even today under cover of a need for a National Government”,

“Now that the incumbent SC has broken from a sorry past which saw the Courts consorting with power centres, let us all hope that this sturdy independence will continue into the future.”

There was a time, when the Chief Justice Sarath N. Silva admonished the leading counsel at the time, the late Mr H. L. de Silva, for having the audacity to submit to the SC that the SC had no option but to observe the Rules framed by a Chief Justice and 3 SC Judges and thereafter approved by Parliament.

Confident that the ‘sturdy Independence’ the Editor referred to was not that kind of Independence, I had already raised three cheers for this independence.

Even during the tenure of the Chief Justice afore referred to, an objection raised by me that it was inappropriate for a bench of two judges (as the 3rd Judge had recused himself), to hear a Fundamental Rights Petition in which five Supreme Court Judges were respondents, was upheld and the matter postponed by 9 days to be heard by a panel of 3 Judges reconstituted by that Chief Justice.

However the manner in which the present SC acted in the fundamental rights petition filed by the former defence secretary raised in my mind, some concern as to whether my cheers had been premature. Whereas any manifestation that justice is being done is to be lauded, any attempt to do so, in disregard of the rules of the Supreme Court, cannot in my view be condoned under any circumstances.

When the petition of the former defence secretary was taken up before 3 judges, one of them withdrew on personal grounds. No respondent had objected to his hearing the case and he recused himself on his own volition. That was in accordance with the ‘Restatement values of Judicial life’ which require a Judge to recuse himself at the very outset-not belatedly at the expense of public time. That indeed was laudable.

Apart from seeking a declaration that his fundamental rights had been violated, the petitioner had also sought an interim order prohibiting his being arrested. In such circumstances the SC rules mandate that the Respondents must have been served prior notice of such application.

The Prime Minister, who is a lawyer himself and a Respondent, has repeatedly asserted on the electronic media that he had not received any such notice and that he first came to know of this petition through the media.

If that be correct, on that occasion ,the bench of two Judges had only one of two options. It could either have postponed the hearing and referred the matter to the Chief Justice for reconstitution of the bench or heard the submissions of the Petitioner and restricted themselves to granting or refusing leave to proceed.

The Opposition leader who is himself a Senior Attorney at Law, is reported in the Island to have made a statement that “at this point the bench requested the Chief justice to appoint another Judge or re-appoint a bench comprising of three new Judges to hear the petition. The C J decided to hear the case with the remaining two Judges.”

Whereas this must be presumed to be factually accurate, the C J could, and indeed would only have authorized the two judges to hear the submissions and either grant , or refuse, leave to proceed. He certainly could not, and indeed would not, have authorised the Judges to grant any interim relief, if the Respondents had not been served with notice of such application.

The Opposition Leader is further reported to have said that “A Deputy Solicitor General represented the IGP and the Attorney General and he made his submissions to court for one and a half hours. In his submissions to Court the Deputy Solicitor General had not objected to a two-Judge bench hearing the case (which indeed he could not do as they were entitled to hear the case under the rules). Presumably the DSG had stressed that a restraining order should not be issued (as clearly envisaged in the rules), even if he had not objected to the granting of leave.

It is inconceivable that if any counsel had represented the other Respondents they would not have at the very least objected to the granting of interim relief.

No claim has thus far been made that the Respondents, other than the IGP and the AG, were in fact represented in Court,on that occasion.

Before considering the question of interim relief the two-Judge bench had a clear duty to ascertain whether the Respondents had been duly noticed or not. Without doing so, the Court had no power to grant any interim relief. At the most, the Court could have granted leave to proceed with the petition and given a short day for notice, issued through the Registry, for support of the application for interim relief. They may in the circumstances have required maintenance of the status quo, pending hearing on that short date.

The SC rules clearly specify that if and when leave to proceed is granted, “the SC shall fix the date of hearing (being a date not less than 4 weeks and not more than 6 weeks after the grant of leave to proceed) d the Petitioner shall within 2 working days, tender to the Registry notices, in the prescribed form, together with copies of his petition, affidavits and annexures, to be sent to the Respondents.

“Each Respondent may thereafter file counter-affidavits within fourteen days of the receipt of such notice, with notice to the petitioner and other Respondents

“The Petitioner may, in like manner, file a counter affidavit within 7 days ,replying to the allegations of fact contained in any Respondent’s affidavit .

“The Petitioner and the Respondents shall file their written submissions at least one week before the date fixed for the hearing of the application, with notice to every other party.”

The judicial Independence for which 4 Cheers were raised by the Editor of the Island, certainly does not extend to the blatant disregard by the SC of their own rules .

The rules do not make it obligatory for the Supreme Court to ex mero motu rectify this patently per incuriam order. However it could, and verily should entertain any application for revision, submitted by the Attorney general and/or any Respondent.

In such an event, the ball will be fairly and squarely in the Supreme Court.

The million dollar question is whether the failure to tender such a revision application is another sordid ‘deal’

*Elmore Perera – Attorney at law -Past President OPA and Founder CIMOGG