CJ’s Husband’s Appointment To State Bank Grounds For Perceived Judicial Bias – New Public Interest Litigation Petition Says

By Dharisha Bastians -October 19, 2012

As the tensions between the Government of President Mahinda Rajapaksa and the judiciary headed by Chief Justice Shirani Bandaranayake continue to grow, Public Interest Litigator Nihal Sri Ameresekere on Thursday made an application to the Supreme Court to re-view and re-examine its own determination on the Government’s expropriation act, passed into law in November 2011. The Sri Lankan Constitution does not provide for judicial review of legislation, but the petitioner says the Supreme Court has the power to alter its own rulings if it is found to be ‘demonstrably wrong’.

Chief Justice Dr. Shirani Bandaranayake and Pradeep Kariyawasam

The controversial case seeks to have the Supreme Court review its own determination on a law allowing the state to acquire private enterprises and property and declare it null and void because it contravenes the constitution and because judicial bias and disqualification was perceived in the SC ruling on the bill. The explosive instances of perceived judicial bias as highlighted in Ameresekera’s application are likely to ruffle feathers both on Hulftsdorp Hill and Temple Trees.

The Underperforming and Underutilized Assets Act, commonly referred to as the expropriation act since it vests power in the state to acquire private enterprises and assets it deems loss-making, was submitted for Supreme Court determination as an Urgent Bill on 20 October 2011.

In his petition to the court, Ameresekere argues that the Supreme Court determination is constitutionally null and void and without force in law, because it is made in contravention of Article 123 (3) of the Constitution, pertaining to urgent bills. According to the petitioner, the Article 123(3) is an inbuilt safeguard and check against the hasty procedures adopted to enact Urgent Bills. The Article cited states: “If the Supreme Court entertains a doubt it shall be deemed to have been determined that the Bill or such provision of the Bill is inconsistent with the Constitution.” The petitioner illustrates several instances in the SC special determination issued on 24 October 2011, where doubt is entertained by the three judge bench providing the ruling, namely Chief Justice Shirani Bandaranayake, Justice Chandra Ekanayake and Justice P.A. Rathnayake.

Ameresekere’s application states that upon the entertainment of a doubt by the Supreme Court, Article 123(3) of the Constitution deems the ‘Urgent Bill’ or any provision thereof to have been determined to be inconsistent with the Constitution, and thereby debars the Supreme Court from determining otherwise, and if so made, “such Determination, as in this instance, is constitutionally ab-initio null and void and of no force or avail in law i.e. a nullity.”

Citing the five Judge bench ruling on the Jeyaraj Fernandopulle Vs. Premachandra De Silva and Others case in Supreme Court, Ameresekere argues that the Supreme Court has inherent powers to correct decisions made per incuriam or ‘through lack of care’. “A decision will be regarded as given per incuriam if it was in ignorance of some inconsistent statute or binding decision… an order made on wrong facts given to the prejudice of a party will be set aside by way of remedying the injustice caused,” the ruling cited in the application states.

The most explosive section of the Application by Ameresekere is the section regarding perceived judicial bias, in which the petitioner illustrates several circumstances that created the perception of bias on the part of the judiciary. Each of the three judges who provided the ruling on the expropriation bill have been dealt with separately.

With reference to the appointment of the Chief Justice’s husband as the chairman of a state bank, despite his having no expertise in the field, Ameresekere details the sequence of events relating to former NSB Chairman’s resignation following a controversial share transaction and finally the statement from JSC Secretary Manjula Tillekaratne alleging interference with the independence of the judiciary on September 18, 2012. Referring to several of these ‘conflicts of interest’ the petitioner states: “Circumstances and relationships could or may have subsequently changed, but what is of relevance are the circumstances and relationships which subsisted prior to and at the relevant time the impugned Special Determination of 24.10.2011 (on the expropriation bill) was made.” The petitioner also refers to the appointment of Justice Chandra Ekanayake’s husband, a former High Court judge as parliamentary ombudsman by President Mahinda Rajapaksa after opting for early retirement after questions arose about his rulings in a high profile drug case. Ameresekere also states in the section regarding perceived judicial bias that President Rajapaksa himself was “keenly interested in the urgent bill” in question as per a speech given by the Head of State in parliament.

The following is the section regarding perceived judicial bias and disqualification cited in Ameresekere’s petition to the Supreme Court.

Perceived Judicial Bias and Disqualification’