The Centre for Policy Alternatives and Dr. Paikiasothy Saravanamuttu, who had petitioned the Supreme Court by a fundamental rights case FR No. 23/2013 directly challenging Mohan Pieris‘ de facto appointment and operating as Chief Justice, refused to participate in the case when it was taken up today (30.10.2013) in the afternoon.

Dr Paikiasothy Saravanamuttu - Co-Convenor CMEV

This was in protest at Pieris (6th respondent in the case) appointing a special bench of 5 judges, without all judges being required to hear the case. The counsel who appeared for CPA had withdrawn from appearing any more in the case, after the 5 selected judges (S. Marsoof, Chandra Ekanayake, Sathya Hettige, Shanthi Eva Wanasundera and Rohini Marasinghe) backed away from taking a stand that only if all judges are allowed to try the case without Pieris making any selection of judges.

When the case was taken up, counsel Viran Corea appearing with Luwie Ganeshathasan instructed by Namal Rajapakse informed to the court that they are appearing today only to inform court that the CPA and Dr. Saravanamuttu will not be party to such proceedings, where bench fixing is done against natural justice. Court was informed of this position in the motion filed by the petitioners on 18.09.2013.

Colombo Telegraph is able to reveal today that the motion informed court of the following facts and the reasons for the petitioners losing faith in the controversial process:

WHEREAS a five-member bench of Your Lordships’ Court that was constituted by the 6th Respondent was disinclined to have steps taken to secure determination of this application by a full bench;

AND WHEREAS Learned Counsel for the Petitioners withdrew from making submissions in respect of the subject matter of this application after seeking leave of Your Lordships’ Court for same, on the basis that it is inconsistent with the Principles of Natural Justice and improper for the 6th Respondent in this case who has a personal interest in this case to nominate certain Hon Members of Your Lordships’ Court to hear this case leaving out others, which fact was intimated to Your Lordships’ Court in Open Court on the last date;

AND WHEREAS consequently, in the totality of the aforesaid circumstances, the Petitioners are placed in a position where they do not wish to participate in the further disposal of this matter, which pertains inter alia to vital issues affecting integrity of judicial process;

I respectfully MOVE to inform Your Lordships’ Court that the Petitioners do not with great respect, wish to participate in the further disposal of this application in the given premises.

A copy of this Motion has been sent by registered post to the Attorney General and the Attorney-at-Law appearing on behalf of the 3rd and 5th Respondents and the registered post article receipts are attached hereto in proof of same.

On this 18th day of September 2013

Attorney at Law for the Petitioners

In this situation with the petitioners and their counsels refusing to participate, Attorney General Palitha Fernando and a team of lawyers from AG’s Department asked the judges to dismiss the case. He urged that the Supreme Court doesn’t have the power to try the case and to dismiss it without looking into the merits of the case.

The judges said they will make their order later without a date being given (called as ‘order reserved’).

Senior lawyers and law academics contacted by Colombo Telegraph who asked not to be named, said that any order dismissing the case by a bench handpicked by the 6th respondent in the case would be illegal according to basic legal principles.