29 October, 2020

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FR Cases Challenging Legality Of Standing Order 78A Refixed For July 25th As Asked By AG

Four fundamental rights cases filed, challenging the legality of Standing Order 78A were taken up in the Supreme Court today. The special bench named by de facto Chief Justice Mohan Pieris to hear these cases consisted of Justices Saleem Marsoof (PC), Chandra Ekanayake, Sathya Hettige (PC), Eva S. Wanasundara (PC) and Rohini Marasinghe.

CJ Shirani

The Supreme Court allowed a person represented by junior President’s Counsel Nigel Hatch to intervene and support the Attorney General’s arguments against the petitioners. This was after the petitioners’ request to withdraw the cases was denied. Deputy Solicitor General Shavindra Fernando appearing for the AG  claimed that although the AG objected to leave to proceed being granted in the cases (before Chief Justice Dr. Shirani Bandaranayake was removed), he now wants the cases to continue ‘in the public interest’.

The petitioners had moved to withdraw the cases, because the Supreme Court had earlier made a ruling which covered the relief they had asked for. The Supreme Court had held that the Parliament needed to provide by law (not Standing Order) for an independent mechanism to inquire into any allegations against any judge of the Superior Court. The Parliamentary Select Committee (PSC) appointed to try Chief Justice Bandaranayake was not independent and controlled by government Ministers of the Rajapaksa regime. Their crude misconduct of the process attracted local and international condemnation and strong protests from the legal profession.

After the 5 judges decided to press ahead with the case, Suren Fernando and Viran Corea, the counsel for petitioners in 2 of the cases (SC FR 665 & 666/2012) submitted that if the case is to be continued, then they should be allowed to amend papers to bring in subsequent developments and any consequential reliefs without changing the scope of the application. Court was told that this was specially so because the de facto CJ needed to be added as a party who directly benefitted from the challenged Standing Order 78A. It would be improper for him to decide who hears these cases since his so-called appointment would be pronounced illegal if the petitioners win the cases, the court was advised.

DSG Shavindra Fernando appearing for AG objected to the request to amend the petition papers. The Supreme Court rejected the request by those 2 petitioners to amend and update their petitions.

In the third case (SC FR 667/2012), the counsel submitted that he would be making a formal application to amend the petition in writing, shortly. The DSG said he would object to any amendment.

President’s Counsel Ikram Mohamed, the counsel appearing in SC FR  672/2012 told court that since the above 3 other cases were already considering the same matter may be he would withdraw his case. However Deputy Solicitor General Indika Demuni de Silva said she also wanted to make submissions. The Supreme Court ordered that this case also should continue.

All 4 cases are to be taken up again before the same 5 judges on 25.07.2013.

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