SC FR 23/2013, the case filed by the Centre for Policy Alternatives (CPA) and its Executive Director Dr. Paikyasothy Saravanamuttu challenging the de facto appointment of Mohan Pieris to function as Chief Justice in place of Chief Justice Dr. Shirani Bandaranayake in which Pieris is named as 6th respondent, came up before a special bench nominated by Pieris himself.
The bench consisted of Justices Saleem Marsoof (PC), Chandra Ekanayake, Sathya Hettige (PC), Eva S. Wanasundara (PC) and Rohini Marasinghe.
When the case was called, senior counsel for the petitioner M. A. Sumanthiran told the court that he moves that all judges of the Supreme Court must hear it without Pieris making a choice. He urged that this is the only way in which the matter could be taken up without compromising the honour and credibility of the court.
The bench was informed that there are legal precedents which clearly uphold that it is all judges must hear such a case as a matter of duty and cannot withdraw except after coming on the bench and publicly giving reasons for withdrawing from the duty so parties could know and make any relevant submissions on the matter.
He further said that he could demonstrate by submissions that the only correct thing for the 5 judges to do according to established international legal precedents would be to withdraw from hearing the case (called in legal jargon as “recusal”) if Pieris as a party chooses them, leaving other judges out.
Sumanthiran also said that unless the case is heard by all the judges without Pieris choosing a special bench, he himself would be compelled to consider withdrawing from appearing as counsel in the case any further.
Deputy Solicitor General Shavindra Fernando said that under the Constitution it is the ‘Chief Justice” who must choose which judges should hear the case. He did comment on how the integrity of the court would be affected unless Pieris does not ‘choose’. He also said over and over again that the impeachment issue was one that affects the public interest.
Therefore also in the public interest (and for knowledge of our readers), Colombo Telegraph notes that if the public interest is what the AG is trying to protect, then the judges could have been reminded by the AG’s Department of serious financial corruption charges against Pieris while he was AG itself. Documentary proof of this corruption is with the AG’s Department. The Colombo Telegraph exposed Pieris’ corruption with documentary proof that has not been denied. (See our expose: https://www.colombotelegraph.com/index.php/aspirant-cj-mohan-pieris-exposed-professional-misconduct-as-attorney-general/). DSG Fernando was insisting strongly that the same Pieris should be left to handpick judges to hear a case in which Pieris has a very personal interest.
The 5 judges postponed the case and said they would allow Sumanthiran to make his submissions on the matter on the next date, which was fixed for 25.07.2013.
A retired senior Supreme Court judge commenting on the case on the condition of anonymity, said “It remains to be seen how much courage these 5 judges have to protect the honour of the Supreme Court and the judiciary despite carrots and sticks shown to them by the Rajapaksa regime. I am hopeful but not too hopeful. It takes a lot of spine.”