The latest development following the illegal ousting by the Rajapaksa regime of Chief Justice Dr. Shirani Bandaranayake and installation of Mohan Pieris as de facto Chief Justice despite an Appeal Court ruling declaring the purported impeachment process invalid, is irregular steps being taken by the Attorney General to appeal the ruling, with certain judges of the Supreme Court accommodating such a move in blatant violation of the rights of parties to the case to be noticed and heard on whether special leave to appeal should be granted, the Colombo Telegraph is able to reveal today.

Vijitha Herath, Member of Parliament through the Janatha Vimukthi Peramuna has filed a motion dated 22.05.2013 along with an affidavit to the Supreme Court, highlighting how the Attorney General has violated compulsory requirements of notice to other parties in making this unusual appeal.

In short, special leave to appeal has been sought by the Attorney General  and granted by judges allocated under de facto Chief Justice Mohan Pieris to consider the matter.

In this way, special leave to appeal has been granted, without even so much as noticing or hearing (even) Dr. Shirani Bandaranayake, who is the most personally affected party in the case, The Colombo Telegraph is reliably informed.

Normally, all parties to a case have a right to be noticed and heard in objection to grant of special leave to appeal before any order granting special leave to appeal is given. It is only if the Supreme Court (after hearing all parties) feels that there is a matter that should be gone deeper into, that special leave to appeal is granted and a case is set down for final hearing on specific matters raised by parties to the case and accepted by the court as requiring reconsideration.

The parties in the Appeal Court case who were entitled to be noticed, are as follows: Dr. Shirani Anshumala Bandaranayake (Petitioner), Chamal Rajapaksa (Speaker of Parliament), Anura Priyadharshana Yapa, Nimal Siripala De Silva, Susil Premajayantha, Rajitha Senaratne, Wimal Weerawansa, Dilan Perera, Neomal Perera, Lakshman Kiriella, John Amaratunga, R. Sampanthan, Vijitha Herath (Chairman & Members of the ‘PSC’) and W. B. D. Dassanayake (Secretary General of Parliament).

The Attorney General was only requested by the Appeal Court to make submissions to assist the court on a (now inapplicable) notion that the Attorney General would make objective submissions devoid of political expediency or partisanism. Such a possibility was effectively erased by the ruling regime through its 18th Amendment to the Constitution.

Herath has moved  the Supreme Court to set aside the illegal, improper and irregular order granting special leave to appeal and have the case taken off the list of cases to be argued on 29.05.2013.

His affidavit states as follows:

I, VIJITHA HERATH  of No. 44/3, Medawatta Road, Mudungoda, Miriswatta, Gampaha being a Buddhist do hereby solemnly, sincerely, truly declare and affirm as follows:-

1. I am the Affirmant and the 12th Respondent in the CA Writ Application 411/2012 and in this “Appeal”.

2. I learnt from media that the Hon. Attorney General, who is not a party to the Court of Appeal application bearing No. 411/2012, had  submitted an appeal to Your Lordships’ Court and the Supreme Court had granted Leave to Appeal ex-parte. At no stage, I received any papers including the Petition, Affidavit or annexures,  pertaining to the instant “Appeal”.

3. I state that through my Attorney-at-Law, I made inquiries from Supreme Court Registry on 09th May 2013 and found that the papers relevant to the Special leave application had not been even posted to me. The Registrar of Supreme Court on that date had admitted that the papers were never sent to me and all papers were in the docket, which had been kept in her personal custody.

4. I state that I have not received any of the papers pertaining to this “Appeal” except the amended caption and the notice  dated 15-3-2013.

5. I am advised to state that this “Appeal” made by Attorney General is contrary to law or practice of Court and therefore all orders made in this “Appeal” by the Supreme Court should be set aside.

Background

The Attorney General was never a party to the Appeal Court case (CA Writ 411/2012) which was filed by Chief Justice Bandaranayake seeking relief against what she alleged were illegal, unlawful steps taken to purportedly impeach her by a process that lacked all requirements of propriety, integrity, honesty and the Principles of Natural Justice. The Appeal Court invited the Attorney General to assist the court as ‘amicus curiae’ (meaning – friend of court) and make submissions on the applicable law and legal principles. The post of Attorney General is widely considered as highly politicised, with the 18th Amendment to the Constitution effectively granting the Executive President Mahinda Rajapaksa the power to make appointment to the post (and other high judicial and civil service positions) entirely at his whim or fancy. In the given context, the role of the officers of the Attorney General’s Department in this case was to try and justify to the Appeal Court, the methodology being adopted by the Rajapaksa Regime.

However, the Court of Appeal, having heard all parties and the Attorney General, ruled that the so-called inquiry held by a Parliamentary Select Committee (PSC) that was used to throw up apparent grounds for impeachment was illegal, ultra vires and set aside the so-called findings of the PSC. The members of the PSC from the Opposition walked out and refused to participate when they realised that the process was completely flawed, improper and even abusive. However, the Rajapaksa regime disregarded the court ruling and moved to take steps to hurriedly push through the Rajapaksa controlled Parliament, a Resolution to impeach Dr. Bandaranayake. Using this rubber stamp of the legislature, Dr. Bandaranayake was excluded from exercising her functions as Chief Justice and Mohan Pieris, a close associate of the Rajapaksa regime (esp. the Defence Secretary who is President Rajapaksa’s brother) and against whom there were many corruption allegations was installed in the Chief Justice’s chambers with military presence in Hulftsdorp, amidst heavy protests and resolutions of a vast majority of the legal profession. The Bar Association of Sri Lanka condemned the move, and even passed (and carried out) a resolution not to welcome the substitution of the office of Chief Justice with a de facto Chief Justice. The Colombo Telegraph has exclusively published proof of some of these allegations, previously.

In this way, the Rajapaksa regime drew widespread condemnation for what was widely accepted locally and internationally as a major failure of the rule of law – where the Executive failed to respect an order of court and deliberately acted in contempt of it, using the Legislature as a mere rubber stamp. It is a fact that the Appeal Court ruling was not appealed on to the Supreme Court by the regime through its nominees in the Parliamentary Select Committee or the Speaker of Parliament (who is also a brother of President Rajapaksa) who were all parties to the case.

Appeal and illegal orders now canvassed through Attorney General

The Appeal Court ruling is now curiously being specially canvassed in appeal by the Attorney General through SC (Special) LA 24/2013, with de facto Chief Justice Mohan Pieris heading other Supreme Court judges, who are only too aware that his views reflect the desires of the Rajapaksa regime. One Supreme Court Judge, P. A. Ratnayake, PC (a relative of Sir Baron Jayathilake) is due to retire prematurely shortly on request, after Pieris was installed in the office of CJ.

According to a very senior President’s Counsel contacted by The Colombo Telegraph who spoke on condition of anonymity, “It is highly undesirable at best and most inappropriate at worst for the Attorney General to make an appeal, in a case that he was never a party to. This is particularly so, since the parties to the case proper have the right to make an appeal.”

Several senior lawyers told The Colombo Telegraph that the taking of steps by the regime to appeal the ruling through the Attorney General is a reflection of how much of a cats paw the once highly regarded AG’s Department has been reduced to by the regime.

A political analyst said this slight of hand tactic was part of a move by the Rajapaksa regime to have the Appeal Court ruling reversed by the Supreme Court now controlled by Pieris (de facto CJ) in order to try and defend mounting international criticism of the serious breach of judicial independence by excluding Bandaranayake from the office of CJ without due process. The Colombo Telegraph is reliably informed that the new case number allocated to the appeal after the controversial grant of special leave to appeal in SC (Special) 24/2013, is SC (Appeal) No. 67/2013.

Herath’s Motion to SC

We reproduce below for the benefit of our readers, the wording of the Motion filed by the lawyers for Vijitha Herath (12th Respondent) which outlines clearly the nature and gravity of the serious breach of procedure complained of, and the court rulings sought by Herath to reverse the wrong:

On this 22nd day of May 2013.

WHEREAS the 12th Respondent – Respondent  received a notice dated 13thMay 2013 informing him that Your Lordships’ Court has granted special leave to appeal in this matter and that the appeal will be heard on 29th May 2013;

AND WHEREAS this is the first time a formal notice from the Registrar of Your Lordships’ Court has been received by the 12th Respondent – Respondent, apart from a photocopy of a Motion seeking to amend the caption that was received previously;

AND WHEREAS the 12th Respondent – Respondent has not been served with the petition, affidavit, document or any other papers until now, which fact is born out from the affidavit submitted with this Motion.

AND WHEREAS Rule 8 of the Supreme Court Rules 1990 stipulates as follows:

“(1) Upon an application for special leave to appeal being lodged in the Registry of the Supreme Court, the Registrar shall forthwith give notice, by registered post, of such application to each of the respondents, in the manner hereinafter set out. There shall be attached to the notice a copy of the petition, a copy of the judgment against which the application for special leave to appeal is preferred, and copies of affidavits and annexures filed therewith.

(2) Such notice shall be in the prescribed form, and shall specify –

(a) that the respondent, if he intends to oppose the grant of special leave to appeal, shall lodge, within fourteen days of the receipt of such notice, a Caveat indicating such intention; and

(b) the date of hearing of the application (being a date not less than eight weeks after the lodging of the application)

Such notice shall be dispatched within five working days after the application has been lodged.

(3) The Petitioner shall tender with his application such number of notices as is required for service on the respondents and himself together with such number of copies of the documents referred to in sub-rule (1) of this rule as is required for service on the respondents. The petitioner shall enter in such notices the names and addresses of the parties, and the name, address for service and telephone number of his instructing Attorney-at-Law, if any, and the name, address and telephone number, if any, of the attorney-at-law, if any, who has been retained to appear for him at the hearing of the application, and shall tender the required number of stamped addressed envelopes for the service of notice on the respondents by registered post. The petitioner shall forthwith notify the Registrar of any change in such particulars.

(4) Upon an application for special leave to appeal being lodged, the Registrar shall insert in the notices tendered by the petitioner the Supreme Court number allotted to the said application, and the date of hearing of the application, after consulting the petitioner. He shall issue one copy to the petitioner upon request, obtaining a written acknowledgement on the record itself; a copy of such notice shall not be posted to the Petitioner.

(5) The petitioner shall, not less than two weeks and not more than three weeks after the application has been lodged, attend at the Registry in order to verify that such notice has not been returned undelivered. If such notice has been returned undelivered, the petitioner shall furnish the correct address for the service of notice on such respondent. The Registrar shall thereupon dispatch a fresh notice by registered post, and may in addition dispatch another notice, with or without copies of the annexures, by ordinary post.

He may, if he thinks fit, and after consulting the petitioner, substitute a fresh date of hearing, or direct that the matter be called in the Registry, o the date originally fixed for the hearing, for the purpose of fixing a fresh date of hearing.

(6) The respondent shall, within fourteen days of the receipt of such notice, enter an appearance in the Registry of the Supreme Court, and if he intends to oppose the grant of special leave to appeal shall lodge a Caveat indicating such intention.

(7) Not less than twenty one days before the date specified in the aforesaid notice as the date of hearing of the application, any respondent may lodge (with notice to the petitioner and other respondents) a statement, together with three additional copies thereof, setting out his objections to the grant of special leave to appeal or controverting the allegations of fact set out in the petition; where such statement contains allegations of fact which cannot be verified by reference to the judgment or order of the Court of Appeal in respect of which special leave to appeal is sought, affidavits and other relevant documents shall be annexed in support, and the provisions of rule 6 shall apply mutatis mutandis.”

AND WHEREAS several of the above mandatory provisions do not seem to have been complied with, in that, the 12th Respondent – Respondent  was never served with notice of the application for special leave to appeal;

AND WHEREAS the 12th Respondent – Respondent has not been served with the Petition, Affidavit and annexes relating to the said application to date;

AND WHEREAS in the above circumstances the order granting special leave to appeal has been made per incuriam, in violation of the principles of natural justice and in breach of the aforesaid Rule and thus ought to be set aside ex debito justitea;

The 12th Respondent-Respondent respectfully moves that Your Lordships’ Court be pleased to set aside the said order granting special leave to appeal and cause the notice of same to be served on the 11th Respondent – Respondent to enable him to file a Caveat as contemplated under the aforesaid Rule and be heard in opposition to the grant of special leave to appeal on a date to be fixed for that purpose;

The 12th Respondent-Respondent  further moves that this matter be permitted to stand out of the Argument list on 29th May 2012 and be mentioned and that the 12th Respondent-Respondent be permitted to support this motion on that date and set aside all orders made by this Court in respect of this matter.

Registered Attorneys-at-Law for

the 12th Respondent – Respondent

Copy of this Motion has been served on the Party Noticed (Amicus Curiae) – Petitioner – Appellant.

Registered Attorneys-at-Law for

the 12th Respondent – Respondent