FR Case To Reflect How Much Of Sri Lanka’s Judicial Independence Has Survived – Motion For Full Bench Filed By CPA

By Colombo Telegraph -January 30, 2013 

In SC (FR) 23/2013, filed by the Centre for Policy Alternatives (CPA) and its Executive Director, Dr.Paikiasothy Saravanamuttu to prevent Mohan Pieris, PC (named the 6th Respondent in the case) from being allowed to exercise and discharge the functions of the office of the Chief Justice, a Motion has been filed, in view of the fact that it is not possible for the 6th Respondent to properly exercise any discretion to nominate a bench to hear the case. The petitioners state that in the present state of affairs, all judges ought to be called upon to exercise their constitutional duty of hearing and deciding the case without the 6th Respondent deciding on who should hear the case.

The case has been filed, on the basis that steps to exclude Dr. Shirani Bandaranayake, Chief Justice of Sri Lanka was taken on the illegal strength of unconstitutional and illegal Parliament Standing Order 78A, which was pronounced to be null and void and ultra vires in terms of the Constitution, and could not have been legally used to impeach a judge of the Supreme Court or Court of Appeal. Any valid, proper steps could only have been taken, by providing for an inquiry of judicially accepted standards through the enactment of laws by Parliament. Such valid laws would have ensured Natural Justice and a fair inquiry to Dr. Bandaranayake in conformity with international standards required for preservation of judicial independence, including the Latimer House Principles to which Sri Lanka as a Commonwealth State has pledged itself. Therefore, the application seeks that the Supreme Court makes a declaration that any steps by the 6th Respondent Pieris to exercise the functions or powers of the Chief Justice is illegal and a contravention of the fundamental rights of the Petitioners and the citizens of Sri Lanka by depriving them of their right to independence of the judiciary which is vital for the Rule of Law.

Despite a determination by the Supreme Court as the sole body vested with the power and authority to interpret the Constitution, and a writ of Certiorari issued by the Appeal Court quashing purported findings against Dr. Bandaranayake under the so-called procedure contained in Parliament Standing Order 78A, the Rajapakse regime purported to exclude Dr. Bandaranayake from office on the basis of a vote in Parliament, despite there not being even a Resolution for impeachment on the Order Paper of Parliament. All that was on the Order Paper was a Resolution for the appointment of a Parliamentary Select Committee to go further into the matter.

However, despite this serious point of order being raised by the Opposition in Parliament, the Speaker of Parliament Chamal Rajapaksa allowed a vote to be taken and the vote was carried in the Rajapaksa regime controlled legislature. A senior political analyst pointed out that the reason this serious issue of order was overlooked and Parliament procedure flouted, was the fact that by then, the Rajapaksa regime had already organised and detailed paid thugs to camp outside the Chief Justice’s official residence to intimidate and vilify Dr. Bandaranayake as soon as the Rajapaksa controlled legislature rubber-stamped the regime’s decision to remove Dr. Bandaranayake from holding office. Businessmen who had obtained favours from the Government had been instructed to provide milk rice (‘Kiri Bath’) in their respective areas, to give the impression of public jubilation at the steps of the Regime to remove Bandaranayake. If the serious point of order was not summarily shrugged off, the ‘public show’ organised by the government would have been an utter failure as the milk rice and paid thugs were already in place. So, the requirements of political expediency was allowed by the Speaker to trump the propriety of parliamentary due process.

The Speaker of Parliament is the brother of President Mahinda Rajapaksa. Dr. Bandaranayake issued a ruling holding certain aspects of the controversial “Divineguma Bill” sponsored by one of the President’s brothersBasil Rajapaksa, Minister of Economic Development, after which steps were taken to hastily impeach Dr. Bandaranayake and remove her from the office of Chief Justice, in a manner that has drawn strong widespread international criticism, including from the United Nations, the ICJ, the Commonwealth, the European Union, United States, United Kingdom, Australia, Canada. The move was also denounced by Sri Lanka’s Opposition, the judges’ association (Judicial Services Association – JSA), Bar Association (BASL) and civil society through strong statements and actions.

The Rajapaksa regime thereafter proceeded to appoint Mohan Pieris to function as Chief Justice. Pieris is a controversial character, who is very close to the Rajapaksa Regime, and especially Gotabhaya Rajapaksa, a brother of the President who is the Secretary of Defence. Pieris is dogged by very serious allegations (backed by documentary evidence) of corruption related to his tenure as Attorney General, which were revealed and published by the media including The Colombo Telegraph well before his appointment as Chief Justice. There is also a fundamental rights case pending in the Supreme  Court against Pieris. Notwithstanding all this, Pieris was appointed and installed in the office of the Chief Justice under heavy security on a day Hulftsdorp was packed with handpicked police and security personnel to prevent Dr. Bandaranayake from entering the Supreme Court Complex or attending her office to perform her duties. Dr. Bandaranayake thereafter issued a statement affirming that she remains the legal Chief Justice, though she is prevented by the Regime from functioning as such.

The opposition party Janatha Vimukthi Peramuna has lodged a complaint alleging corruption against Pieris at the Human Rights Commission.

After the enactment of the 18th Amendment, appointments and promotions to the Supreme Court, Appeal Court and the Human Rights Commission are made at the exclusive discretion of the President, after the ascertainment of the views of a toothless Parliamentary Council. The FR filed by CPA on the day Pieris was installed in Hulftsdorp also sought to prevent members of this toothless Council members from seeking to recommend Pieris, given that there is no vacancy for the position of Chief Justice. However, despite urgency being expressed in the Motion with which the case was filed and the judges being informed of the urgency of the matter, the case was not listed for support until after 6th Respondent Pieris was supposedly sworn into office. This was in the context of Hulftsdorp being overrun by Police and Security personnel, after the regime purportedly impeached Dr. Bandaranayake in Parliament.

A senior political analyst contacted by The Colombo Telegraph spoke on condition of anonymity (citing security concerns) and expressed the following view:

“This case and how it is decided is a litmus test of the degree to which the seriously undermined besieged judicial independence of the Supreme Court has been extinguished by the high handed actions of the ruling regime. Sri Lankans and the international community are following this case with grave concern. It is now up to any judges who care for judicial independence to make an impartial ruling, even if it means facing the same unjust fate as Dr. Bandaranayake without due process. It is difficult I know, but a sacred duty cast on the judges by the Constitution itself to uphold the Constitution and thereby the Sovereignty of the People by ensuring the Rule of Law. Judicial office is not for the faint-hearted, those afraid of repercussions or enticed by the carrots of executive favour on themselves or their family members. Surely, the Supreme Court may have at least a few judges of the right caliber, at least from among those appointed before the 18th Amendment. If not, the flame of judicial independence stands snuffed out at the very top of the judicial system.”

The case is due to be supported on 06.02.2013.

Here is the text of the Motion to the Supreme Court dated 28.01.2013 that has been sent by registered post to all respondents, including the Attorney General and 6th Respondent Mohan Pieris.