{"id":66904,"date":"2012-12-29T19:00:19","date_gmt":"2012-12-29T19:00:19","guid":{"rendered":"http:\/\/www.colombotelegraph.com\/?p=66904"},"modified":"2013-01-01T05:48:17","modified_gmt":"2013-01-01T05:48:17","slug":"perceived-judicial-bias-disqualification-and-duplicity-on-the-part-of-cj-tendered-to-the-sc","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/perceived-judicial-bias-disqualification-and-duplicity-on-the-part-of-cj-tendered-to-the-sc\/","title":{"rendered":"Perceived Judicial Bias, Disqualification And Duplicity On The Part Of CJ Tendered To The SC"},"content":{"rendered":"<p><strong>By\u00a0<span style=\"text-decoration: underline;\"><a href=\"http:\/\/www.colombotelegraph.com\/?s=Nihal+Sri+Ameresekere&amp;x=12&amp;y=2\">Nihal Sri Ameresekere<\/a><\/span>\u00a0&#8211;<\/strong><\/p>\n<div id=\"attachment_58869\" style=\"width: 160px\" class=\"wp-caption alignright\"><a href=\"http:\/\/www.colombotelegraph.com\/index.php\/purported-oil-hedging-deals-nihal-sri-questions-attorney-general\/nihal-sri-ameresekere\/\" rel=\"attachment wp-att-58869\"><img loading=\"lazy\" decoding=\"async\" aria-describedby=\"caption-attachment-58869\" class=\"size-thumbnail wp-image-58869\" title=\"Nihal Sri Ameresekere\" src=\"http:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2012\/11\/Nihal-Sri-Ameresekere-150x150.jpg\" alt=\"\" width=\"150\" height=\"150\" srcset=\"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2012\/11\/Nihal-Sri-Ameresekere-150x150.jpg 150w, https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2012\/11\/Nihal-Sri-Ameresekere-50x50.jpg 50w\" sizes=\"auto, (max-width: 150px) 100vw, 150px\" \/><\/a><p id=\"caption-attachment-58869\" class=\"wp-caption-text\">Nihal Sri Ameresekere<\/p><\/div>\n<p><strong>Written Submission as far back as February 9, 2012 on perceived judicial bias and disqualification, and duplicity on the part of <span style=\"text-decoration: underline;\"><a href=\"http:\/\/www.colombotelegraph.com\/?s=Shirani+Bandaranayake&amp;x=7&amp;y=4\">Chief Justice<\/a><\/span> tendered to the Supreme Court. <\/strong><\/p>\n<p><strong><em>Supreme Court declines to entertain same and returns the same being taken off the Court Record, on making the following Minute s by Justices N.G. Amaratunga, R.K.S. Sureshchandra and Sathya Hettige.\u00a0<\/em><\/strong><\/p>\n<p>\u201cAll papers submitted\u00a0 by the Petitioner in supporting this application to assist the Bench is returned to the Petitioner and those papers shall not form a part of\u00a0 record in this case.<\/p>\n<p>The record consists only of the Petition and the amended petition filed by the Petitioner and no other material is to be considered as a part of the record.\u201d<\/p>\n<p>Further to the earlier Oral Submissions, with Written Submissions thereon, the Petitioner, in the national and public interest, most respectfully tenders these <span style=\"text-decoration: underline;\">additional Submissions, <strong>arising from the <em>dicta<\/em><\/strong><\/span><strong> in the given facts and circumstances disclosed by the Judgments of the Lords of Appeal in the House of Lords in <em>re <\/em>\u2013 Pinochet<\/strong> cited in the said earlier Submissions.<\/p>\n<p>On the persuasive submissions by the Queens Counsel appearing for Senator Pinochet, contending that, <strong>although there was no exact precedent, the House of Lords must have jurisdiction to set aside its own Orders, where they have been improperly made, since there is no other Court, which could correct such impropriety<\/strong>, another Committee of the House of Lords entertained the Petition of Appeal by Senator Pinochet for review of their own Judgment, whilst <strong>unanimously holding that they have jurisdiction to rescind or vary an earlier order to correct an injustice caused<\/strong> \u2013 <em>viz<\/em>: <em>dicta<\/em> of Lord Browne-Wilkinson, with the other Lords <em>agreeing: (Copies of Judgments attached\u00a0 marked <strong>\u201cA\u201d,<\/strong> <span style=\"text-decoration: underline;\">with relevant paragraphs highlighted, with emphasis added<\/span>)<\/em><\/p>\n<p>\u201c<strong>Jurisdiction<\/strong><\/p>\n<p>As I have said, <strong><span style=\"text-decoration: underline;\">the respondents to the petition do not dispute that your Lordships have jurisdiction in appropriate cases to rescind or vary an earlier order of this House<\/span>. In my judgment, <span style=\"text-decoration: underline;\">that concession was rightly made both in principle and on authority<\/span><\/strong>.<\/p>\n<p>In principle it must be that your Lordships, <strong><span style=\"text-decoration: underline;\">as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House<\/span>. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its <span style=\"text-decoration: underline;\">inherent jurisdiction remains unfettered<\/span>.<\/strong><\/p>\n<p>However, it should be made clear that the House will not reopen any appeal <strong><span style=\"text-decoration: underline;\">save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure<\/span><\/strong>. Where an order has been made by the House in a particular case <strong>there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong<\/strong>. \u201c<\/p>\n<p>1. In the public interest, the Petitioner is reluctantly compelled to most respectfully place the following, as <strong><em><span style=\"text-decoration: underline;\">additional grounds<\/span><\/em><\/strong> <strong>warranting the exercise of the inherent powers of the Supreme Court, <em>to set aside or rescind or rectify the Determination No. 2\/2011 of 24.10.2011<\/em><\/strong> on the Bill titled &#8211; &#8220;An Act to provide for the <strong><span style=\"text-decoration: underline;\">vesting<\/span><\/strong> in the Government <strong><span style=\"text-decoration: underline;\">identified<\/span><\/strong> Underperforming Enterprises and Underutilized Assets&#8221; .<\/p>\n<p>2. A 5 Member Committee of the House of Lords delivered Judgment on 25.11.1998 allowing an Appeal by a majority 3 to 2 verdict, against the quashing by the Queen\u2019s Bench Divisional Court of an arrest warrant against former Head of State of Chile, Senator Pinochet, to be extradited from the UK; against whom there had been allegations of crimes against humanity, for the prosecution of which, the Spanish Supreme Court had issued international warrants for his arrest.<\/p>\n<p>3. Thereafter, upon discovery, that one of the Lords, who allowed such Appeal, namely, Lord\u00a0 Hoffmann and his wife, Lady Hoffmann, had <strong><span style=\"text-decoration: underline;\">links<\/span><\/strong> with <span style=\"text-decoration: underline;\">Amnesty International, who had intervened in the Application for the arrest and extradition of Senator Pinochet<\/span>, his Lawyers in such circumstances, proffered a Petition to the House of Lords <strong><span style=\"text-decoration: underline;\">to review their own Judgment<\/span><\/strong>.<\/p>\n<p>4. The foregoing discoveries were consequent to squealing, whistleblowing and media exposures, resulting in Amnesty International\u2019s Solicitors by Letters dated 1.12.1998 and 7.12.1998 admitting that Lady Hoffmann had been working at the International Secretariat of Amnesty International in UK, mainly in administrative positions; and further admitting that Lord Hoffmann had been Director and Chairman of Amnesty International Charity Ltd., UK, which carried out some aspects of work of Amnesty International Ltd., UK, both being functionaries of Amnesty International. <strong>Lord Hoffmann had no financial interest and had not received any remuneration from these institutions<\/strong>.<\/p>\n<p>5. The new <strong>5 Member Committee<\/strong> of the House of Lords, who entertained the Petition of Appeal by Senator Pinochet for review of the Judgment of 25.11.1998 by a <strong>5 Member Committee<\/strong> of the House of Lords, delivered on 17.12.1998 the Judgment of Their Lords of Appeal, with reasons given on 15.1.1999, <strong>setting aside the previous Judgment of the House of Lords of 25.11.1998<\/strong>, and directing a re-hearing by a differently constituted Committee, without any of Their Lords, who had heard the matter.<\/p>\n<p>6. The kind attention of the Supreme Court is very respectfully drawn to the paragraphs <strong>highlighted with emphasis added<\/strong> in the Judgments of the Lords of Appeal in the House of Lords annexed marked <strong>\u201cA\u201d<\/strong><\/p>\n<p>7. SC Special Determination No. 2\/2011 of 24.10.2011 on the Bill titled \u2013 &#8220;An Act to provide for the vesting in the Government identified Underperforming Enterprises and Underutilized Assets&#8221;,<strong><em>\u00a0 <\/em><\/strong>was delivered by a 3 Judge Bench, presided by Her Ladyship the Chief Justice, Dr. Shirani Bandaranayake, with His Lordship Justice, P.A. Ratnayake and Ladyship Justice, Chandra Ekanayake.<\/p>\n<p>8. In the Judgment delivered on 4.6.2009 in SC (FR) Application No. 158\/2007 by the Supreme \u00a0Court, <em>annulling <\/em>the privatization of Sri Lanka Insurance Corporation Ltd., (SLICL), as <em>wrongful, unlawful and illegal<\/em>, the Supreme Court, <em>inter-alia,<\/em> made the following Order:<\/p>\n<blockquote><p>\u201c5 Since it is necessary in the interest of the public to ensure proper and efficient management of SLICL, this Court directs the Secretary to the Treasury, <strong><span style=\"text-decoration: underline;\">in consultation with the Minister of Finance<\/span><\/strong>, to submit to this Court for its approval the appropriate number of names of persons who have recognized <strong>academic\/professional qualifications<\/strong> and <strong>more than 10 years experience in anyone or more of the fields of business management, accountancy, law, commerce, economics, and insurance<\/strong> to be appointed to the Board of Directors of SLICL. The Secretary to the Treasury is directed to submit the list of names within two weeks from today. The Secretary to the Treasury is hereby authorized to make suitable arrangements to administer the affairs of SLICL until a Board of Directors is appointed. \u201c (<em>Emphasis added<\/em>)<\/p><\/blockquote>\n<p>9. On or about <strong>26.6.2009<\/strong> the Supreme Court approved the names of Directors submitted by the Deputy Solicitor General, having noted that<strong> the 1<sup>st<\/sup> Respondent, Minister of Finance had given approval therefor.<\/strong><\/p>\n<p>10. Consequently, in or about <strong>July 2009<\/strong>, Pradeep G.S. Kariyawasam, assumed Office, as Chairman, SLICL. <em>SLICL functions under the purview of the Ministry of Finance and the post of Chairman, SLICL was a prestigious post, with lucrative perquisites<\/em>.<\/p>\n<p>11. The 3<sup>rd<\/sup> Respondent, P.B. Jayasundera <strong>was compelled to resign from the post of Secretary, Ministry of Finance &amp; Secretary to the Treasury and other public office, in the face of the severe castigations made against him in the Judgment delivered by the Supreme Court on 21.7.2008 in SC (FR) Application 209\/2007,<\/strong> <em>annulling<\/em> the privatization of Lanka Marine Services Ltd., <em>as wrongful, unlawful, illegal and fraudulent,<\/em> and the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera tendered an Affidavit dated 16.10.2008 to the Supreme Court, <em>inter-alia<\/em>, declaring, affirming and undertaking <em>not to hold any public office, \u00a0directly or indirectly, or purport to do so.<\/em><\/p>\n<p>12. The Secretary to the President, having intimated that the 1<sup>st<\/sup> Respondent, Minister of Finance, as the President of Republic, had instructed the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera to <strong><span style=\"text-decoration: underline;\">resume<\/span><\/strong> duties, as\u00a0 Secretary, Ministry of Finance\u00a0 &amp; Secretary to the Treasury, P.B. Jayasundera made Application to the Supreme Court to be relieved of the aforesaid undertaking given by the Affidavit dated 16.10.2008 to the Supreme Court.<\/p>\n<p>13.<\/p>\n<p>a)\u00a0\u00a0 Consequent to the majority Judgments, with one Justice dissenting, delivered on <strong><span style=\"text-decoration: underline;\">13.10.2009<\/span><\/strong> in SC (FR) Application No. 209\/2007 by a 7 Judge Bench of the Supreme Court, the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera was <strong><span style=\"text-decoration: underline;\">re-instated<\/span>,<\/strong> as Secretary, Ministry of Finance &amp; Secretary to the Treasury, by the 1<sup>st<\/sup> Respondent, Minister of Finance. <strong>The Application of the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera was heard as a matter of general and public importance in terms of Article 132(3)(iii) of the Constitution<\/strong>.<\/p>\n<p>b)\u00a0\u00a0 The majority 6-1 Judgment of the 7 Judge Bench of the Supreme Court, whilst refusing the substantial 2 prayers (a) and (b) to the Amended-Petition of the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera, granted relief under the 3<sup>rd<\/sup> prayer \u00a0(c) i.e. \u201c<em>grant such other and further relief as to Your Lordships\u2019 Court shall seem fit and meet <\/em>\u201d, holding that the 1<sup>st<\/sup> Respondent, Minister of Finance, as the President of the Republic, in terms of Article 52 of the Constitution, was free to appoint the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera, as Secretary, Ministry of Finance &amp; Secretary to the Treasury.<\/p>\n<p>14. Subsequent to having been appointed as Chairman, SLICL in or about <strong>July 2009<\/strong>, thereafter in or about <strong>May 2010<\/strong>, <span style=\"text-decoration: underline;\"><a href=\"http:\/\/www.colombotelegraph.com\/?s=Pradeep+Kariyawasam&amp;x=9&amp;y=6\">Pradeep G.S. Kariyawasam<\/a><\/span> was appointed by the 1<sup>st<\/sup> Respondent, Minister of Finance, as Chairman, National Savings Bank, <em>which also comes under the purview of the Ministry of Finance, of which the Secretary was and is the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera. Chairman, National Savings Bank is also a prestigious post, with lucrative perquisites.<\/em><\/p>\n<p>15. Upon the said Bill titled \u2013 &#8220;An Act to provide for the vesting in the Government identified Underperforming Enterprises and Underutilized Assets&#8221;, in terms of Article 122(1)(b) of the Constitution having been referred to Her Ladyship the Chief Justice, Dr. Shirani Bandaranayake on Friday, <strong><span style=\"text-decoration: underline;\">21.10.2011<\/span> <\/strong>by the President of the Republic, who is also the 1<sup>st<\/sup> Respondent, Minister of Finance, the Special Determination No. 2\/2011 of Monday, <strong><span style=\"text-decoration: underline;\">24.10.2011<\/span><\/strong> was delivered by a Bench presided by Her Ladyship the Chief Justice, Dr. Shirani Bandaranayake.<\/p>\n<p>16.<\/p>\n<p>a)\u00a0 The 1<sup>st<\/sup> Respondent, Minister of Finance and 3<sup>rd<\/sup> Respondent, P.B. Jayasundera, Secretary, Ministry of Finance, under whose purview most of the Enterprises listed in the Schedule to the Bill came, among others, <em>had been interested and instrumental in mooting the formulation and enactment of the Bill, <\/em>with the 1<sup>st<\/sup> Respondent, Minister of Finance, <em>having made public pronouncements thereon, inter-alia, vide <\/em>Hansard Columns 3223\/3224 of 21.12.2011<strong>.<\/strong><\/p>\n<p>b)\u00a0\u00a0 The 37 Enterprises and the 77 allotments of Land were to be vested in the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera, as the Secretary to the Treasury, to be held on behalf of the State, as per Sections 2 and 4 of the Bill titled &#8211; &#8220;An Act to provide for the vesting in the Government identified Underperforming Enterprises and Underutilized Assets&#8221;<\/p>\n<p>17. Pradeep G.S. Kariyawasam, who was appointed, as aforesaid, <em>to prestigious high profile political Offices <\/em>by the 1<sup>st<\/sup> Respondent, Minister of Finance, <em><span style=\"text-decoration: underline;\">at his will and pleasure,<\/span> <\/em>and functions under the purview of the 3<sup>rd<\/sup> Respondent, Secretary, Ministry of Finance &amp; Secretary to the Treasury, P.B. Jayasundera, is the husband of Her Ladyship the Chief Justice, Dr. Shirani Bandaranayake; and though the Surnames used are different, <em>this matter has been raised in the public domain<\/em>.<\/p>\n<p><span>18.\u00a0<\/span><span style=\"text-decoration: underline;\">Arising from the <em>dicta<\/em><\/span><em> <\/em>in the given facts and circumstances disclosed by the aforesaid Judgments of the Lords of Appeal in the House of Lords in <em>re<\/em> Pinochet <strong>(\u201cA\u201d),<\/strong> the foregoing facts and circumstances,<strong> <span style=\"text-decoration: underline;\">warrant the exercise of the inherent jurisdiction of the Supreme Court, the highest judiciary, to \u00a0rescind \/ set aside or vary or rectify SC Determination No. 2\/2011 of 24.10.2011<\/span><\/strong> on the Bill titled &#8211; &#8220;An Act to provide for the vesting in the Government identified Underperforming Enterprises and Underutilized Assets&#8221;, <strong><span style=\"text-decoration: underline;\">which had been determined upon by a Bench presided by Her Ladyship the Chief Justice Dr. Shirani Bandaranayake<\/span><\/strong>.<\/p>\n<p>18. In the public interest, the foregoing are <strong><em><span style=\"text-decoration: underline;\">additional grounds<\/span><\/em><\/strong> <strong>to<\/strong><strong> augment the grounds in the separate Submissions<\/strong> <strong>made earlier in respect of the <em>dicta <\/em>contained in the Determination No. 2\/2011 of 24.10.2011<\/strong> of the Bill titled &#8211; &#8220;An Act to provide for the vesting in the Government identified Underperforming Enterprises and Underutilized Assets&#8221;, <em>vis-\u00e0-vis,<\/em> the <strong>constitutional<\/strong> <strong>mandates<\/strong> referred to in the said separate <strong>Submissions made earlier.<\/strong><\/p>\n<p>20. It is most respectfully submitted that <strong>national and public interest<\/strong> <strong>being of paramount importance<\/strong>, \u00a0the Petitioner stands bound and compelled to <em>reluctantly<\/em> place before the Supreme Court the matters contained herein, citing the following \u2018<em>extracts<\/em>\u2019 from the Judgments of the Lords of Appeal in the House of Lords in <em>re<\/em> \u2013 Pinochet (<strong>\u201cA\u201d<\/strong>). (<em>Emphasis added<\/em>)<\/p>\n<p><strong>LORD BROWNE-WILKINSON<\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em>The matter proceeded to your Lordships&#8217; House with great speed\u00a0 \u2026&#8230; Lord Hoffmann agreed with their speeches but did not give separate reasons\u201d.<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c\u2026\u2026 <\/em><\/strong><strong><em>there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased \u2026.. it is alleged that there is an appearance of bias not actual bias\u201d.<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em>The fundamental principle is that a man may not be a judge in his own cause \u2026&#8230; or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification\u201d.<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em>\u2026.. may give rise to a suspicion that he is not impartial, for example because of his friendship with a party \u2026..\u00a0 the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial\u201d.<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em>\u2026. he is disqualified without any investigation into whether there was a likelihood or suspicion of bias\u201d.<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c..\u2026 t<\/em><\/strong><strong><em>hat absolute prohibition was then extended to cases where, although not nominally a party, the judge had an interest in the outcome\u201d.<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em>\u2026.. anything other than a financial or proprietary interest in the outcome is sufficient automatically to disqualify a man from sitting as judge in the cause\u201d.<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em>\u2026.. therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. \u2026.. the rationale disqualifying a judge applies just as much if the judge&#8217;s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties\u201d\u00a0<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c..<\/em><\/strong><strong><em>\u2026 whether the events in question give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the judge was not impartial\u201d.<\/em><\/strong><\/p>\n<p><strong>LORD GOFF OF CHIEVELEY<\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em>Your Lordships are concerned with a case in which a judge is closely connected with a party to the proceedings\u201d.<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em>It follows that in this context the relevant interest need not be a financial interest. \u2026 A judge may have to disqualify himself by reason of his association with a body that institutes or defends the suit&#8221;<\/em><\/strong><\/p>\n<p><strong>LORD NOLAN<\/strong><\/p>\n<p><strong><em>#<\/em><\/strong><strong><em> \u00a0\u00a0 \u201c\u2026..the appearance of the matter is just as important as the reality. \u201c<\/em><\/strong><\/p>\n<p><strong>LORD HOPE OF CRAIGHEAD<\/strong><\/p>\n<p><strong><em>#<\/em><\/strong><strong><em> \u00a0\u00a0 \u201cLord Wensleydale stated that, as he was a shareholder in the appellant company, he proposed to retire and take no part in the judgment. The Lord Chancellor said that he regretted that this step seemed to be necessary. Although counsel stated that he had no objection, it was thought better that any difficulty that might arise should be avoided and Lord Wensleydale retired.\u201d<\/em><\/strong><\/p>\n<p><strong><em>#<\/em><\/strong><strong><em> \u00a0\u00a0\u00a0\u00a0 \u201cThe importance of preserving the administration of justice from anything which can even by remote imagination infer a bias or interest in the Judge upon whom falls the solemn duty of interpreting the law is so grave that any small inconvenience experienced in its preservation may be cheerfully endured.\u201d<\/em><\/strong><\/p>\n<p><strong><em>#<\/em><\/strong><strong><em> \u00a0\u00a0\u00a0\u00a0 \u201cIt is no answer for the judge to say that he is in fact impartial and that he will abide by his judicial oath. \u2026. He must be seen to be impartial.\u201d<\/em><\/strong><\/p>\n<p><strong><em>#<\/em><\/strong><strong><em> \u00a0\u00a0\u00a0\u00a0 \u201cIf he has a bias which renders him otherwise than an impartial judge he is disqualified from performing that duty. Nay, more (so jealous is the policy of our law of the purity of the administration of justice), if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that person&#8217;s impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists.&#8221;<\/em><\/strong><\/p>\n<p><strong>LORD HUTTON<\/strong><\/p>\n<p><strong><em># \u00a0\u00a0 \u201c<\/em><\/strong><strong><em>\u2026\u2026 or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice\u201d.<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em> \u2026.. and now covers cases in which the judge has such an interest in the parties or the matters in dispute as to make it difficult for him to approach the trial with the impartiality and detachment which the judicial function requires\u201d.\u00a0<\/em><\/strong><\/p>\n<p><strong><em><\/em><\/strong><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em>\u2026\u2026 The third category is disqualification by association \u2026\u2026. where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.&#8221; \u00a0<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 \u201c<\/em><\/strong><strong><em>\u2026. there is an overriding public interest that there should be confidence in the integrity of the administration of justice \u2026.. it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.\u201d<\/em><\/strong><\/p>\n<p><strong><em>#\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em><\/strong><strong><em>\u201cThe nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand.\u201d<\/em><\/strong><strong><em>\u00a0 \u00a0 \u00a0<\/em><\/strong><\/p>\n<p><strong><em><\/em><\/strong>21.The Petitioner expressly states that these Submissions are nothing personal, and <strong>are solely made in the national and public interest<\/strong>, in that, the Petitioner had known Pradeep G.S. Kariyawasam, as one time Marketing Manager of the Motor Division of Brown &amp; Co. Ltd., a then Client of the Petitioner\u2019s Company, Consultants 21 Ltd.<\/p>\n<p>22. The Petitioner did not <strong><span style=\"text-decoration: underline;\">raise an issue,<\/span><\/strong> when in <strong><span style=\"text-decoration: underline;\">September 2009<\/span><\/strong>, a 7 Member Bench of the Supreme Court, <strong>including Her Ladyship the Chief Justice, Dr. Shirani Bandaranayake<\/strong>, heard the aforesaid Application of the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera <strong>to be relieved of the undertaking he had given to the Supreme Court<\/strong> by his Affidavit dated 16.10.2008; whereby he was to <strong><span style=\"text-decoration: underline;\">re-assume<\/span><\/strong> Public Office, as Secretary, Ministry of Finance\u00a0 &amp; Secretary to the Treasury, under whose purview the SLICL came, <strong>and by which time Pradeep G.S. Kariyawasam, her husband had been appointed as Chairman SLICL in <span style=\"text-decoration: underline;\">July 2009<\/span><\/strong>.<\/p>\n<p>23. The following \u2018extracts\u2019 are cited from the dissenting Judgment dated <strong>13.10.2009<\/strong> by Her Ladyship Shiranee Tilakawardene, one of the Justices of the 7 Judge Bench, that heard the aforesaid Application of the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera, referred to above (<em>Emphasis added<\/em>)<\/p>\n<p>\u201cPursuant to a Petition filed by the 8<sup>th<\/sup> Respondent Petitioner (the \u201cPetitioner\u201d) (<em><span style=\"text-decoration: underline;\">i.e. the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera in this Application<\/span>)<\/em> on 7<sup>th<\/sup> July 2009, and <strong>twice amended by him on 11<sup>th<\/sup> July 2009 <\/strong><em>(<span style=\"text-decoration: underline;\">Error should read<\/span><\/em><strong><\/strong><em><span style=\"text-decoration: underline;\">21<sup>st<\/sup> July 2009<\/span>)<\/em><strong> and 31<sup>st<\/sup> July 2009<\/strong> (the \u201cPetition\u201d), this application was listed before a bench of 7 judges of the Supreme Court \u2026\u2026 \u201d<\/p>\n<p><strong>\u201cCourt \u2026\u2026 refuses the reliefs sought in paragraphs (a) and (b) of the prayer to the amended Petition dated 31<sup>st<\/sup> July 2009. However the Court is inclined to grant other relief under paragraph (c) of the prayer to the amended Petition<\/strong>.\u201d<\/p>\n<p>\u201cThe Petitioner, (<em><span style=\"text-decoration: underline;\">i.e. the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera in this Application<\/span>)<\/em> <strong>amended the Petition on 21<sup>st<\/sup> July 2009 <em>without obtaining<\/em> permission from Court to do so<\/strong>. More specifically, <strong>the supporting affidavit made in connection with the <span style=\"text-decoration: underline;\">amendment lacks a signature of a Justice of the Peace\/Commissioner, such omission rendering invalid and false the <em>jurat<\/em> contained therein<\/span><\/strong>. The amended Petition dated 21<sup>st<\/sup> July 2009, <strong>thus remained unsupported by a valid Affidavit, and, consequently, the said Affidavit <span style=\"text-decoration: underline;\">should have been rejected <em>in limine<\/em><\/span><\/strong>.<\/p>\n<p>When this matter was taken up on 3<sup>rd<\/sup> August 2009 a fresh set of papers were filed, <strong>consisting of a second amended Petition dated 31<sup>st<\/sup> July 2009<\/strong> and a purported Affidavit dated 31<sup>st<\/sup> July 2009, <strong><em><span style=\"text-decoration: underline;\">once again <\/span><\/em><span style=\"text-decoration: underline;\">without having obtained permission of Court<\/span>.<\/strong> \u201d<\/p>\n<p>24.<\/p>\n<p>a)<em> \u00a0 <\/em>It was shortly thereafter, that the Petitioner filed Amended Petition dated <strong>10.11.2009<\/strong>, together with a covering \u00a0Motion also dated <strong>10.11.2009<\/strong>, explicitly disclosing the amendments made to his Petition filed on 25.6.2009 in SC (FR) Application No. 481\/2009, <strong><em><span style=\"text-decoration: underline;\">an Application made in the public interest<\/span><\/em><\/strong><em><span style=\"text-decoration: underline;\">,<\/span> vis-\u00e0-vis, the scandalous Hedging Deals in the <span style=\"text-decoration: underline;\">perpetration of which the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera had played a pivotal role<\/span><\/em>.<\/p>\n<p>b) \u00a0 <strong><em><span style=\"text-decoration: underline;\">In complete contrast to the foregoing matter<\/span><\/em><\/strong> of filing Amended Papers on two occasions, <em>one with a defective Affidavit by the 3<sup>rd<\/sup> Respondent, P.B. Jayasundera<\/em>, <strong>without the permission of the Supreme Court,<\/strong> <em>Her Ladyship Justice Shirani Bandaranayake<\/em> on 19.11.2009, <em>expressly directed the Petitioner that he should support such Motion and get approval of the Supreme Court for amending his Petition in terms of the Supreme Court Rules<\/em>, and for such purpose the matter was fixed for Support. <strong><span style=\"text-decoration: underline;\">Here again the Petitioner raised no issue<\/span><\/strong>.<\/p>\n<p>25. Nevertheless, <strong>national and public interest<\/strong> <strong>being of paramount importance<\/strong>, <strong>the Petitioner in this instance is reluctantly <em>compelled<\/em> to raise this issue<\/strong>, since the highest judiciary being the last bastion of democracy, the instant matter in issue now before the Supreme Court is of vital importance, infringing upon the i<em>nalienable<\/em> sovereignty of the people, in the exercise of the legislative power of the people, as mandated by the Constitution, which is bound to be upheld and defended, and in the exercise of the judicial power of the people, as per the <em>dicta<\/em> in the Determination by a 7 Judge Bench of the Supreme Court in October 2002, <em>vide<\/em> para 9 of the Petitioner\u2019s Petition <em>viz<\/em>: (<em>Emphasis added<\/em>)<\/p>\n<blockquote><p><strong>\u201cIf there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the <span style=\"text-decoration: underline;\">judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and effective<\/span>\u201d<\/strong><\/p><\/blockquote>\n<p><strong><\/strong>26. The Petitioner re-produces below paragraphs 16 and 17 of his Petition.<\/p>\n<p>\u201c16. a)\u00a0\u00a0\u00a0 The Petitioner most respectfully submits that Your Ladyship the Chief Justice\u2019s following Minute made on 22.11.2011 in respect of the Petitioner\u2019s Application SC (SD) No. 2\/2011 filed on 17.11.2011, with His Lordship Justice P.A. Ratnayake and Her Ladyship Chandra Ekanayake agreeing, <em>viz:<\/em><\/p>\n<p>&nbsp;<\/p>\n<p>\u201cThe Determination by this Court was with regard to the Bill and any party that had wanted to intervene should have done so at the time, it was taken before the Supreme Court.\u201d<\/p>\n<p>was <strong><em><span style=\"text-decoration: underline;\">per-incuriam<\/span><\/em><\/strong><\/p>\n<p>b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 When a Bill is referred to Your Ladyships\u2019 Court, as an Urgent Bill, under Article 122(1) of the Constitution, such Bill is not gazetted in terms of Article 78(1) of the Constitution, and the aforesaid Bill was not gazetted under Article 78(1) of the Constitution at least 7 days before it was placed on the Order Paper of Parliament. The Bill itself bears the date <strong><span style=\"text-decoration: underline;\">8.11.2011<\/span><\/strong> and was passed by Parliament on <strong><span style=\"text-decoration: underline;\">9.11.2011<\/span><\/strong>.<\/p>\n<p>c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 With utmost respect the Petitioner submits that Your Ladyships\u2019 Court had been under the mistaken belief, that the Bill was publicly available <em><span style=\"text-decoration: underline;\">for anyone to have intervened<\/span><\/em>, <strong><span style=\"text-decoration: underline;\">when\u00a0 it was not the case<\/span><\/strong>.<\/p>\n<p>d)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Hence, it was an <strong>i<span style=\"text-decoration: underline;\">mpossibility<\/span><\/strong> for the Petitioner or any other citizen to have intervened to have been heard by Your Ladyships\u2019 Court, as per the facts set out in paragraph 16(a) hereinbelow.<\/p>\n<p>e)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <em>If \u2018any party could have intervened\u2019<\/em>, then <em>as amply evidenced<\/em> by the several Petitions filed subsequently in Your Ladyships\u2019 Court, and the several Letters addressed by certain affected parties published in the media, <strong><em><span style=\"text-decoration: underline;\">then such parties most certainly would have intervened in Your Ladyships\u2019 Court<\/span>.<\/em><\/strong><\/p>\n<p>f)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 At the said Hearing, Your Ladyships\u2019 Court had been assisted only by the Deputy Solicitor General, representing the Attorney General. \u201d<\/p>\n<p>17. a)\u00a0 The <em>haste <\/em>and <em>secrecy<\/em> in which this Bill had been processed to be enacted into law is\u00a0 revealed by the following;<\/p>\n<p>i)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Certified by the Cabinet of Ministers, as an Urgent Bill under Article 122(1) of the Constitution on <strong><span style=\"text-decoration: underline;\">Wednesday, 19.10.2011<\/span><\/strong> (<em>Cabinet Meeting generally are held late evenings<\/em>) and referred to Your Ladyship\u2019s Court<\/p>\n<p>ii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 As per the Minutes of the Record in Your Ladyship\u2019s Court the said \u2018Urgent Bill\u2019 had been received on <strong><span style=\"text-decoration: underline;\">Friday, 21.10.2011<\/span><\/strong>.<\/p>\n<p>iii)\u00a0\u00a0\u00a0\u00a0\u00a0 Hearing by Your Ladyship\u2019s Court on the matter of the said \u2018Urgent Bill\u2019 had been had on <strong><span style=\"text-decoration: underline;\">Monday, 24.10.2011<\/span><\/strong> assisted only by the Attorney General.<\/p>\n<p>iv)\u00a0\u00a0\u00a0\u00a0\u00a0 The aforesaid Hearing numbered SC (SD) 2\/2011 <em>had not been listed<\/em> in the list of Cases published in the <em>media<\/em> to be heard by Your Ladyship\u2019s Court on Monday, 24.10.2011.<\/p>\n<p><em>True copies of the Reports in the Daily News and Daily Mirror of Monday 24.10.2011 are annexed marked together as <strong>\u201cX7\u201d<\/strong> pleaded as part and parcel hereof<\/em><\/p>\n<p>v)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Even if the matter had been listed, the public would not know that the said specific \u2018Urgent Bill\u2019 was being heard into by Your Ladyship\u2019s Court, and the provisions thereof unknown to the public.<\/p>\n<p>vi)\u00a0\u00a0\u00a0\u00a0\u00a0 Speaker, 9<sup>th<\/sup> Respondent, tabled in Parliament the aforesaid Determination SC (SD) No. 2\/2011 only on <strong><span style=\"text-decoration: underline;\">8.11.2011<\/span><\/strong><\/p>\n<p>vii)\u00a0\u00a0\u00a0 Speaker 9<sup>th<\/sup> Respondent, tabled in Parliament the aforesaid Bill only on <strong><span style=\"text-decoration: underline;\">8.11.2011<\/span><\/strong><\/p>\n<p>viii)\u00a0\u00a0 On the basis of the aforesaid Determination in SC (SD) No. 2\/2011, the Bill, with 15 Committee Stage Amendments,\u00a0 was passed by Parliament on <strong><span style=\"text-decoration: underline;\">9.11.2011<\/span><\/strong>,<\/p>\n<p>ix)\u00a0\u00a0\u00a0\u00a0\u00a0 Speaker, 9<sup>th<\/sup> Respondent had certified the Bill into law on <strong><span style=\"text-decoration: underline;\">11.11.2011<\/span><\/strong>, (<em>just two days after the Bill with 15 Committee Stage Amendments, was passed by the Parliament on <strong><span style=\"text-decoration: underline;\">9.11.2011<\/span><\/strong><\/em>)<\/p>\n<p>x)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Speaker, 9<sup>th<\/sup> Respondent\u2019s aforesaid certification had been announced to Parliament only on <strong><span style=\"text-decoration: underline;\">22.11.2011<\/span><\/strong>, as per Hansard Column 203 of that date.<\/p>\n<p>b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Petitioner had assisted in formulating and processing the enactment of Bills into law, interacting with the Departments of the Attorney General and Legal Draftsman. Two such instances were the enactment of the Companies Act No. 7 of 2007 and the Inland Revenue (Regulation of Amnesty) Act No. 10 of 2004.<\/p>\n<p>c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Inland Revenue (Regulation of Amnesty) Act No. 10 of 2004 on a matter of national and public importance had been processed as follows:<\/p>\n<p>i)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Certified by the Cabinet of Ministers, as an Urgent Bill under Article 122(1) of the Constitution on <strong><span style=\"text-decoration: underline;\">16.8.2004<\/span><\/strong> and referred to Your Ladyships\u2019 Court<\/p>\n<p>ii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Hearing thereinto was had by Your Ladyships\u2019 Court on <strong><span style=\"text-decoration: underline;\">23.8.2004<\/span><\/strong> assisted only by the Attorney General.<\/p>\n<p>iii)\u00a0\u00a0\u00a0\u00a0\u00a0 Bill was presented to Parliament on <strong><span style=\"text-decoration: underline;\">7.9.2004<\/span><\/strong><\/p>\n<p>iv)\u00a0\u00a0\u00a0\u00a0\u00a0 Parliament debated and with 14 Committee Stage Amendments passed the Bill on <strong><span style=\"text-decoration: underline;\">22.9.2004<\/span><\/strong><\/p>\n<p>v)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Bill was certified into law by the Speaker on <strong><span style=\"text-decoration: underline;\">20.10.2004<\/span> \u201d<\/strong><\/p>\n<p>27. The Petitioner filed the following Motion on 18.1.2012 making an Application under and in terms of <strong>Article 132(3)(iii)<\/strong> of the Constitution: (<em>Emphasis added<\/em>)<\/p>\n<p>\u201cWHEREAS when this Application came-up on 25.11.2011, Your Ladyship\u2019s Court directed that Notices be issued on the Respondents, through the Registrar of Your Ladyship\u2019s Court, granting permission to the Petitioner to tender an Amended Petition.<\/p>\n<p>AND WHEREAS accordingly an Amended Petition, having been tendered on 16.12.2011, the Registrar of Your Ladyship\u2019s Court issued Notices on the Respondents returnable on 26.1.2012.<\/p>\n<p>AND WHEREAS the Petitioner respectfully draws the attention of Your Ladyships\u2019 Court to the following <em>dicta<\/em> by His Lordship the former Chief Justice J.A.N. de Silva in SC (FR) Application No. 352\/2007 cited in the said Amended Petition \u2013 <em>viz<\/em>:<\/p>\n<p>\u201cFundamental Rights applications are <span style=\"text-decoration: underline;\">qualitatively different<\/span> from other types of appeals heard before this Court and <span style=\"text-decoration: underline;\">warrant greater latitude in their consideration<\/span> and to grant redress in order <span style=\"text-decoration: underline;\">to encompass the equitable jurisdiction<\/span> exercised in these applications.\u201d<\/p>\n<p>AND WHEREAS this being a complex matter involving questions of general and public importance, the Petitioner most respectfully states that in terms of Article 132 of the Constitution he stands entitled to make this Application to Your Ladyship the Chief Justice.<\/p>\n<p><strong>AND ACCORDINGLY the Petitioner very respectfully MOVES that Your Ladyship the Chief Justice be pleased to direct that this matter be heard by a Bench comprising 5 or more Judges of Your Ladyship\u2019s Court, on a date convenient to Your Ladyships\u2019 Court,\u00a0 very respectfully citing that previous Applications by other Parties in relation to this matter had been directed to be heard by a 5-Judge Bench of Your Ladyship\u2019s Court<\/strong>.<\/p>\n<p>AND WHEREAS should the date so fixed by Your Ladyship\u2019s Court be not 26.1.2012, then that Your Ladyship\u2019s Court be pleased to direct the Registrar of Your Ladyship\u2019s Court to so inform the Respondents of the new date, on which this matter is fixed.\u201d<\/p>\n<p>The Documents and matters referred to hereinabove are of record in the Supreme Court, and if need be, copies of same can be provided for the convenience of Your Ladyships, if so directed.<\/p>\n<p>&nbsp;<\/p>\n<table cellspacing=\"0\" cellpadding=\"0\" align=\"left\">\n<tbody>\n<tr>\n<td width=\"333\" height=\"14\"><\/td>\n<\/tr>\n<tr>\n<td><\/td>\n<td><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<p>&nbsp;<\/p>\n<p>&nbsp;<\/p>\n<p>Petitioner<\/p>\n<p>&nbsp;<\/p>\n<p>9.2.2012<\/p>\n<p>Related stories;<\/p>\n<p><span style=\"text-decoration: underline;\"><strong><a title=\"Letter To Speaker On Expropriation Bill And The Chief Justice\" href=\"http:\/\/www.colombotelegraph.com\/index.php\/letter-to-speaker-on-expropriation-bill-and-the-chief-justice\/\" rel=\"bookmark\">Letter To Speaker On Expropriation Bill And The Chief Justice<\/a><\/strong><\/span><\/p>\n<p><span style=\"text-decoration: underline;\"><strong><a title=\"CJ\u2019s Husband\u2019s Appointment To State Bank Grounds For Perceived Judicial Bias \u2013 New Public Interest Litigation Petition Says\" href=\"http:\/\/www.colombotelegraph.com\/index.php\/cjs-husbands-appointment-to-state-bank-grounds-for-perceived-judicial-bias-new-public-interest-litigation-petition-says\/\" rel=\"bookmark\">CJ\u2019s Husband\u2019s Appointment To State Bank Grounds For Perceived Judicial Bias \u2013 New Public Interest Litigation Petition Says<\/a><\/strong><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p> [&hellip;]<\/p>\n","protected":false},"author":22,"featured_media":58869,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,46,8],"tags":[],"class_list":["post-66904","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-colombotelegraph","category-constitutional-reforms","category-editorial"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v26.3 - 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