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Supreme Court refers AG’s application to “Hon. CJ”
View(s):Legality of impeachment process of Dr Shirani Bandaranayake
The Attorney General’s application calling for a fuller Bench to review the Supreme Court’s earlier determination on the legality of the impeachment process of Chief Justice (CJ) Shirani Bandaranayake, on three fundamental rights petitions, was referred to the “Hon CJ” by the Supreme Court’s three-member Bench, according to the journal entry for that day.
This reference does not specifically state if by ‘Hon CJ’ it means CJ Shirani Bandaranayake or CJ Mohan Peiris.
However, the three Counsel M.A. Sumanthiran, Viran Corea and Suren Fernando objected to the application by the Deputy Solicitor General (DSG) Shavendra Fernando, asking the cases to be referred to the newly appointed CJ for the consideration of appointing a divisional Bench comprising five or more Supreme Court Judges.
When three cases were taken up for argument, DSG Shavendra Fernando made an application requesting the court – in view of the importance of the cases – that they be referred to the CJ for the consideration of nominating a divisional Bench of five or more Supreme Court Judges.
Accordingly, a Bench comprising Justices Nimal Gamini Amaratunga, P.A. Ratnayake and Eva Wanasundera referred the cases to the CJ, for his consideration of appointing a divisional Bench, as soon as the AG indicated in writing, “The basis on which an application is made under Article 132 (3) (iii) of the Constitution.”Counsel M.A. Sumanthiran appearing for trade unionist Mahinda Jayasinghe, opposed the DSG’s request on several grounds, amongst them that the cases could not be legally referred to the duly appointed CJ Dr. Shirani Bandaranayake, as she was excluded from her chambers, according to the findings of the Supreme Court and the Court of Appeal.
He further submitted that her chambers are being occupied by a de facto CJ who was not legally appointed.
Mr. Sumanthiran also pointed out that the three cases should be argued and decided without any further delay as sought to by the AG.
Therefore, he insisted the cases be heard without undue delay. Counsel Viran Corea appearing for trade unionist and lawyer Janaka Adhikari submitted, “It was most improper and inappropriate” for the DSG to make such an application for postponement at this stage.
“Had he considered it was necessary to make such an application, he should have done so much earlier, rather than to raise it on the date of argument,” he said.
He pointed out that the Court should reject the application of the DSG, sans any precise basis, and intended to prevent the case from being taken up for argument.
Mr. Corea argued that, in terms of Article 126 (5) of the Constitution, Court is required to determine the cases as early as possible, as the cases dealt with safeguarding judicial independence.
Counsel also pointed out that, no judge of the Supreme Court or Appeal Court should be ‘subjected’ to the “blatantly unconstitutional process” set out in the Parliamentary Standing Order 78A, which, he argued, was ultra vires, and could not be validly acted on.
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