By Mudliyar –
In a display of the route the highest court is taking since the impeachment, the Supreme Court today refused to grant leave to proceed in a Fundamental Rights application challenging the misconduct of Mohan Pieris during his tenure as Attorney General. Two judges of the Supreme Court refused to consider the submissions by the petitioner, upheld the objections by the Additional Solicitor General and dismissed the Application with costs awarded to the respondents.
The case was taken up before a Supreme Court bench headed by Justice P.A. Ratnayake and comprising Justice Eva Wanasundera and Justice Sathya Hettige at Court Room No 403.
At the outset, Justice P.A. Ratnayake declined to hear the case citing personal reasons. Counsel for the petitioner, Nagananda Kodituwakku objected to Justice Hettige hearing the case on grounds that he was biased towards Pieris.
Justice Hettige refused to consider the submissions made by the Counsel Nagananda Kodituwakku, including a submission referring to his own disqualification from hearing the case. Justice Hettige simply went on to uphold the preliminary objections raised by the Additional Solicitor General and dismissed the Application with Cost awarded to the Respondents. The awarding of cost to Respondents had never been done before by the Supreme Court, especially in the Fundamental Rights Applications filed by the Citizens of this country.
“The decision in this case, amply demonstrates to which direction the Supreme Court is heading today. It seems that the era of the independent judiciary has come to an end in this country and is now replaced with an absolutely dependent ‘Executive Judiciary’, headed by a disqualified person appointed to the Office of the Chief Justice. All this time the people of this country had faith in the Judiciary that it would exercise the ‘peoples’ judicial power’ faithfully and independently and honor the trust placed in it by the people,.” a senior lawyer told Colombo Telegraph.
After Justice Ratnayake refused to hear the case on ‘personal grounds’ and then an application was made by the Additional Solicitor General Shavindra Fernando to hear the case by the other two judges. Then the Counsel for the Petitioner, Nagananda Kodituwakku, objected ‘Hettige J taking part in the hearing’ and made an application to re-fix the case for an earlier date. The said objection was raised on the basis that Hettige J was biased towards Mohan Pieris, as he had disregarded a motion filed by the Petitioner on 04th July 2012, seeking an early date (11th 12th or 13th July 2012) to support the application and instead fixed the case for support for 06th September 2012. It was further submitted to Court that the Petitioner filed the said Motion, since the case which was due to support on 02nd July 2012 had been called in Court with no notice to the Petitioner on 21st of June 2012, and had been postponed for support on 06th Sep 2012.
It was further submitted, that Justice Hettige’s conduct was reported to the CJ Shirani Bandaranayake by the Petitioner by way of an affidavit dated 04th July 2012 and as a result CJ intervened and Hettige J was compelled to reverse his order allowing the petitioner to support the matter on 05th July 2012.
The Additional Solicitor General, Shavendra Fernando then took a preliminary objection to the hearing, on the basis that the original Petition, filed by the Petitioner dated 24th September 2010, does allege that the Supreme Court was responsible for the right violation, which is not an executive action and hence that the application dated 24th September 2010 should be dismissed and the Petitioner should not be allowed to support any amended application thereafter filed in Court.
In response to these submissions the Counsel for the Petitioner, Nagananda Kodituwakku submitted to the Court that the Petitioner does not rely on the Petition dated 24th September 2010, which was amended with the permission of the Court (comprised of Marsoof J, Imam J and Suresh Chandra J), on 05th December 2011, after the Counsel Nagananda Kodituwakku was retained by the Petitioner, in place of Upul Jayasooriya. The Petitioner had reported Counsel Upul Jayasooriya to the CJ by way of an affidavit (22nd November 2011) for his professional misconduct of withdrawing the affidavit filed by the Director General of Customs (seeking the disenrollment of Mohan Pieris for his professional misconduct) and also citing Mohan Pieris only in his official capacity and thereafter abandoning the Petitioner. It was further submitted by the Counsel Nagananda Kodituwakku that the bench chaired by Marsoof J, on 05th December 2011 had allowed the Petitioner to amend the application with ‘specific permission’ to include amendments the Petitioner wished to make, ‘reflecting the allege misconduct and dishonesty of Mohan Peiris’ as reported by the Director General of Customs. And accordingly the Petition dated 23rd December 2011 was filed in Court and the Petitioner only relied on that Petition.
Justice Hettige refused to consider the said submissions made by the Counsel Nagananda Kodituwakku, including the one referring to his disqualification from hearing the case.