FR Cases To Have Standing Order 78A Declared Illegal: Petitioners Object To Intervention Bid By A Citizen In Contempt Of SC And CA

June 11, 2013

The Colombo Telegraph is reliably informed that a person by the name of Koggala Wellala Bandara claiming to be acting in the public interest, has filed papers to be allowed to intervene in fundamental rights cases before the Supreme Court challenging the validity of Standing Order 78A which was used as a purported basis to conduct a so-called impeachment of Chief Justice Dr. Shirani Bandaranayake, in which leave to proceed had been granted after hearing the counsel for the petitioners and the Attorney General who at that stage had objected to the grant of leave. SC (FR) 665, 666, 667 and 672/2012, fundamental rights cases now required properly speaking to be set down for argument in open court, challenge the validity of Standing Order 78A which was used as a purported basis to conduct a so-called impeachment of Chief Justice Dr. Shirani Bandaranayake and install Mohan Pieris (PC) as the de-facto Chief Justice by force, are due to be taken up in the Supreme Court today (11.06.2013) to consider the application to intervene. SC (FR) 23/2013 challenging Mohan Pieris being substituted for Bandaranayake is also due to be only mentioned.The petitioners who obtained leave to proceed have pointed out to court that the application to intervene is worded in a way that is disrespectful and contemptuous of Supreme Court judges, and that the person seeking to intervene should be punished for contempt of both the Supreme Court and the Appeal Court. According to the case record, the petitions asking to intervene are to be supported by Nigel Hatch (a junior Presidents Counsel) who Mohan Pieris is widely rumored to be earmarked by the Rajapaksa regime as suitable to be shortly made a Supreme Court judge. Justice S. Sriskandarajah, President of the Appeal Court has been overlooked and deprived of his due promotion for several years now. The Colombo Telegraph is able to report that in fact, 4 of the 5 judges before whom these cases are listed, are people who were promoted or appointed over Sriskandarajahs head. After the 18th Amendment to the Constitution, appointments and promotions to high judicial positions is entirely at the discretion of the Executive President, in what has been condemned as a removal of judicial independence.

The above cases are listed before Justices Saleem Marsoof (PC), Chandra Ekanayake, Sathya Hettige (PC), Eva Wanasundera (PC) and Rohini Marasinghe. On an earlier occasion, counsel for the petitioners submitted to court that it was improper for the de facto Chief Justice to select any judges for these matters, given that he has a personal interest in the cases as a direct beneficiary of the so-called impeachment of CJ Bandaranayake and that all judges of the Supreme Court should sit and hear the case. Here is one of several similar specific objections to the bid to intervene in the cases that come up for consideration today, which The Colombo Telegraph has been able to secure for the information of our readership: In the matter of an Application for Intervention between Koggala Wellala Bandara, 67A Kandy Road, Dalugala, Kelaniya Intervenient-Petitioner

v.
Janaka Adikari, Palugaswewa, Perimiyankulama, Anuradhapura Petitioner-Respondent

1.

Chamal Rajapakse,

Speaker of Parliament, Parliament of Sri Lanka, Sri Jayewardenepura Kotte

2.

Anura Priyadarshana Yapa,

Eeriyagolla, Yakawita.

3.

Nimal Siripala de Silva,

93/20, Elvitigala Mawatha, Colombo 08.

4.

A. D. Susil Premajayantha,

123/1, Station Road, Gangodawila, Nugegoda.

5.

Rajitha Senaratne,

CD 85, Gregorys Road, Colombo 07.

6.

Wimal Weerawansa,

18, Rodney Place, Cotta Road, Colombo 08.

7.

Dilan Perera,

30, Bandaranayake Mawatha, Badulla.

8.

Neomal Perera,

3/3, Rockwood Place, Colombo 07.

9.

Lakshman Kiriella,

121/1, Pahalawela Road, Palawatta, Battaramulla.

10. John Amaratunga, 88, Negombo Road, Kandana.

11. Rajavarothiam Sampathan, 2D, Summit Flats, Keppitipola Road, Colombo 5.

12. Vijitha Herath, 44/3, Medawaththa Road, Mudungoda, Miriswaththa, Gampaha.

2nd 12th Respondents Members of the Select Committee of Parliament appointed with regard to the Charges against the Chief Justice, also of Parliament of Sri Lanka, Sri Jayewardenepura Kotte

13. The Attorney General,

Attorney Generals Department, Hulftsdorp, Colombo 12

Respondents-Respondents

On this 10th day of June 2013

The Objections (to the application for intervention) of the Petitioner-Respondent above named appearing by Sunil Watagala his Registered Attorney-at-Law states as follows: 1. The Petitioner-Respondent is advised and states at the very outset, that the application filed by the party seeking to intervene: (a) is ex facie perverse and contemptuous of the institution of the Supreme Court and the Court of Appeal of Sri Lanka;(b) ex facie seeks to undermine the character, honour and integrity of Justices of Your Lordships Court and accordingly ought not to be entertained in view of the manner in which the Petition for Intervention is constituted; (c) is ex facie an attempt to vilify Justices of Your Lordships Court, having regard to the tenor of the Petition for Intervention and affidavit filed along therewith; and (d) is ex facie most apparently part of a diabolical plan hatched to further delay and undermine the due consideration of the matters in respect of which the Petitioner-Respondent has sought and obtained leave to proceed. 2. Without prejudice to the matters set out hereinabove, the Petitioner-Respondent denies all and singular the several averments contained in the Petition of the party seeking intervention, save and except those averments hereinafter specifically admitted and accepted. 3. The Petitioner-Respondent further states that a reference to a paragraph in such Petition shall mean and include a reference to the corresponding paragraph in the supporting affidavit thereto. 4. The Petitioner-Respondent denies paragraphs 1, 2, 3, 4(e), (g), (h), (i), (j), (k), (l), (m), 5, 6, 7, 9, 10, 11, 12 and 13 of the Petition of the party seeking intervention. 5. Your Lordships Court, having heard submissions on behalf of the Attorney General, overruled the preliminary objections raised, (including those related to standing, and the alleged absence of executive and/or administrative action being demonstrated in the Petition, and the alleged lack of a prima facie violation of the Petitioners rights), and granted leave to proceed, thus demonstrating that there was a prima facie violation of the Petitioners right, and that Court had jurisdiction to look into same. 6. Thus and otherwise it is not open to any person, including the party seeking to intervene, to raise such objections at this stage. 7. (i) The application of the party seeking intervention should be rejected and dismissed in limine as inter alia, the party seeking intervention does not possess locus standi to intervene in this matter;

(ii) is guilty of laches; (iii) has no legal authority and/or basis in law to intervene, especially when the parties concerned have chosen not to appear before Court; and

(iv) is thus and otherwise not entitled to intervene in this Application. 8. The Petitioner-Respondent states that the party seeking intervention should be dealt with for contempt of Your Lordships Court and the Court of Appeal especially as he has made contemptuous statements in the affidavit filed in this matter, suggesting not merely that the judgments/determinations referred to therein are wrong, but impugning the propriety and integrity of same by referring to same as purported orders/judgments/determinations. 9. The Application of the party seeking intervention is clearly towards achieving a collateral objective(s), including inter alia an attempt to overrule certain judgments outside of the due process of law/practice of Court. 10. The Petitioner-Respondent further states respectfully, that in all the circumstances of this application, it is of great and utmost importance that the application of the Petitioner is duly taken up for hearing and determined without permitting the party seeking to intervene to further delay the prospect of relief being granted to the Petitioner. WHEREFORE the Petitioner-Respondent prays that Your Lordships Court be pleased to make Order: (a) Rejecting and dismissing the application of the party seeking intervention; Issuing summons and / or noticing the party seeking intervention to show cause as to why he should not be dealt with for contempt of court; (b) In the first instance issue a Rule on the party seeking intervention to Show Cause as to why he should not be punished for Contempt of the Supreme Court and/or for Contempt of the Court of Appeal by virtue of the statement made in his Affidavit filed of Record in this Application; (c) Issue Summons on the party seeking intervention; (d) Charge the party seeking intervention for the offence of Contempt (of the Supreme Court and/or for Contempt of the Court of Appeal by virtue of the statement made in his Affidavit filed of Record in this Application) under Article 105(3) of the Constitution of the Democratic Socialist Republic of Sri Lanka; (e) Punish/Sentence the party seeking intervention for the offence of contempt (of the Supreme Court and/or for Contempt of the Court of Appeal by virtue of the statement made in his Affidavit filed of Record in this Application) under Article 105(3) of the Constitution of the Democratic Socialist Republic of Sri Lanka; (f) For costs including punitive costs; and (g) For such further and other relief(s) as to Your Lordships Court shall seem meet. Attorney-at-Law for the Petitioner-Respondent