Govt. moves to reverse SC ruling on Standing Orders

By Dharisha Bastians

As international condemnation mounts against the impeachment of Chief Justice Shirani Bandaranayake, the Government yesterday moved to attempt the overturning of a Supreme Court determination in which the Court ruled that Standing Orders were not law according to the Constitution, thereby rendering the impeachment proceedings against her null and void, with the Attorney General’s Department yesterday asking that three fundamental rights cases be referred to a divisional bench of the Supreme Court of five judges or more to be appointed by new Chief Justice Mohan Peiris.

After hearing submissions, by the AG’s Department and Counsel for the petitioners, the Supreme Court directed the Supreme Court Registrar to transfer the cases to Chief Justice Peiris for decision after the AG submits in writing the basis upon which the application was being made to have a fuller bench hearing the cases. No dates were given for the case to be taken up next.

The three Fundamental Rights petitions filed by an artist, a trade unionist and a lawyer, challenging Standing Order 78A as being in violation of the Constitution and having no force in law, were granted leave to proceed on 23 November 2012 by a three judge bench headed by Justice Nimal Gamini Amaratunge and comprising Justices P.A. Ratnanayake and Eva Wanasundera.

The petitioners argue that unless the courts grant relief, they would be denied their right as citizens of Sri Lanka to an independent judiciary. The case was to be taken up for final hearing yesterday after a period of nearly two months were granted for respondents – the Speaker of Parliament, the 11 members of the PSC and the Attorney General – to file objections.

When the case came up for hearing yesterday, Deputy Solicitor General Shavindra Fernando appealed the three judge bench for the cases to be referred to a divisional bench of the court, comprising five or more Supreme Court judges.

Counsel for the petitioners objected to the DSG Fernando’s request, with Attorney at Law M.A. Sumanthiran appearing on behalf of one of the petitioners said that the matter could not be left to the decision of the Chief Justice because the actual holder of that office in terms of the determinations of the courts (Shirani Bandaranayake) was being excluded from her chambers. Attorney Sumanthiran said that the high office was now being occupied by a person who is not the legitimate Chief Justice.

Also appearing for a petitioner, Attorney-at-Law Viran Corea said that the DSG’s application appeared to be designed to delay the judgment in the case. While agreeing with the submission made by Attorney Sumanthiran, Corea said that if the Attorney General’s Department felt a divisional bench was necessary, the application should have been made much earlier with notice to the petitioners instead on the final day of hearing.

Attorney Corea argued that in terms of the provisions of Article 126(5) of the Constitution, the Court is required to take up and conclude the matter as early as possible. He said that the cases were critical for the protection of judicial independence, “in that no judge of the Supreme Court or Appeal Court should be ‘subjected’ to the blatantly unconstitutional process set out in Standing Order 78A, which isultra vires and could not be validly acted on.”

Appearing for the third petitioner, Attorney-at-Law Suren Fernando said that none of the respondents including the Attorney General had filed submissions even up to one week before the case was scheduled to be taken up for hearing as required by the Supreme Court rules pertaining to Fundamental Rights applications.

Attorney Fernando said that by not filing objections, the Speaker and the Parliamentary Select Committee members had effectively conceded to the grant of relief. He also argued that several of the matters relevant to the application had already been clearly determined and pronounced upon in the petitioners’ favour in other court cases filed by other parties.

The Supreme Court in its 1 January ruling on the interpretation of Article 107 (3) of the Constitution found that Standing Orders were not law and a committee set up by Standing Orders could not investigate and make findings that could adversely affect the rights of a sitting judge. The Court of Appeal, based on this finding by the apex court, quashed the findings of the PSC probing the impeachment of Chief Justice Bandaranayake.

Legal analysts said that although events had taken over while the cases were waiting to be heard, the cases directly deal with the impeachment process against Bandaranayake.

One of the charges in the motion of impeachment against Bandaranayake on which she was found guilty, was that her being the Head of the Judiciary when a case had been filed against her spouse in a lower court amounted to a conflict of interest.