FR Cases Against Presidential Commissions – Is “Bench-Fixing” Back?

Jayantha Jayasuriya CJ

MARCH 28, 2022

The latest buzz in Hulftsdorp is about a bizarre incident that occurred in the Supreme Court on 18 March in the course of the hearing into fundamental rights applications filed by Admiral Travis Sinniah, former Commander of the Navy, Ravi Senevirathna, Senior DIG, SSP Shani Abeysekera, Retired Vice-Admiral Susith Weerasekera and several others who challenged the recommendations of the Presidential Commission of Inquiry on political victimization chaired by former Supreme Court Judge Upali Abeyratne, better known as the “Pissu Poosa” Commission as it was referred to in Parliament. The petitioners also prayed for interim orders against the Special Presidential Commission of Inquiry chaired by Justice Priyantha Jayawardena, which was been appointed following recommendations by the Pissu Poosa Commission. The cases were heard by Justice Malalgoda, Justice Obeysekera and Justice Wengappuli.

Several senior counsel supported the fundamental rights applications and moved for leave to proceed and interim relief. Legal sources said that counsel made out a very strong case not only for leave but also for interim relief. The justices put many questions to the Deputy Solicitor General who appeared for the Attorney General and other respondents who was completely at sea having to defend a very bad case.

When the justices were about to make an order, it was discovered that there was a minute in the case file that the case should come before Chief Justice Jayantha Jayasuriya, Justice Obeysekera and Justice Nawaz. The minute was presumably by the Chief Justice or the Registrar. In view of the minute, the justices refrained from making any order and directed the Registrar to list the case according to the minute, to the utter frustration of counsel.

Legal sources told Colombo Telegraph that it is the usual practice for a bench to direct in open court that a particular case should come up before a particular bench of judges for whatever reasons which are made known to all parties in a transparent manner. For instance, if a case cannot be concluded for want of time, a direction would be made that the case should be resumed before the same judges. Also, if a case that had been heard partly before a particular bench of judges is listed before another bench by inadvertence, an order would be made for the case to come up before the original bench. However, it has never been the case that a direction would be made in the chamber of a judge or the Chief Justice in advance that a case should necessarily come up before a particular bench of judges. The only exception is when a special divisional bench is constituted or when a Bill is challenged, when the Chief Justice would nominate the judges.

This “bench fixing”, sources said, is reminiscent of the days of discredited Chief Justice Sarath N. Silva. Silva made sure that all important and politically sensitive cases would come up before him. During his period, Justice Mark Fernando was excluded from all sensitive cases and from examining Bills leading to a frustrated Justice Fernando retiring prematurely. He did not even send his resignation through the Chief Justice but preferred to send it directly to the President.

Legal sources are surprised that this would happen under Chief Justice Jayasuriya who is generally known to be above board. There is speculation whether Justice Priyantha Jayawardena had a hand in this. Jayawardena is hell-bent on pleasing the Rajapakses by recommending that Opposition politicians and others disliked by the regime be stripped of their civic rights. He was Basil Rajapkasa’s personal lawyer and his closeness to Basil is well-known. Jayawardena has already begun behaving arrogantly like the “Chief Justice in waiting” (“venda CJ”) and is said to be bullying junior judges and hardly talking to fellow judges when on the same bench.

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