Centre for Policy Alternatives on 6 February, 2013

Centre for Policy Alternatives and another Vs. D. M. Jayaratne and others. SC FR 23/2013

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A Fundamental Rights application was filed by Centre for Policy Alternatives (CPA) and its Executive Director on the 15th January 2013, seeking a declaration by the Supreme Court that the Parliamentary Council (which includes the 1st to 5th Respondents) established by the 18th Amendment to the Constitution cannot make observations to the President with regard to the appointment of a Chief Justice until the incumbent Chief Justice (Dr. Shirani Bandaranayake) is removed from office through a lawful process or until she reaches her age of retirement. On the same basis the petitioners further sought a declaration by Court that former Attorney General Mohan Peiris (the 6th Respondent in the case) cannot accept the post of Chief justice or engage in the functions of that office.

On the day the matter was filed the 6th Respondent was appointed as the Chief Justice in terms of the provisions of the 18th amendment to the constitution. The case was fixed for support for interim relief and leave to proceed on the 6th of February 2013. On the 28th of January2013, a motion was filed by the Attorney-at-Law for the Petitioners requesting a full bench, excluding the 6th Respondent to hear and determine this case.

On 6th February the counsel for the Petitioners raised Objections to the 6th Respondent’s involvement in the matter. The matter was fixed to be mentioned on 5th March 2013. When the matter was taken up on 11th of July 2013, before a bench of 5 judges, the Counsel appearing for the petitioner submitted that all Supreme Court judges should be appointed to hear the case. The Attorney General’s Department objected to the said submission and the case was re fixed for the 16th July 2013 before the same bench.

On 16th July 2013, The counsel appearing for the Attorney General’s Department stated that in terms of the Constitution the ‘Chief Justice” has to appoint judges hear any particular case. On the 25th of July 2013, the Counsel for the Petitioner withdrew from appearing in the case on the basis that no person can judge a case in which he has an interest (Nemo Judex in causa sua) which is a basic principles of Natural Justice. In these circumstances court issued notice on the Petitioners and  their  registered Attorney-at- law to appear before court on 26th September 2013. The Petitioners through a motion filed on 18th September 2013 informed court that they do not wish to further participate in the disposal of this case.

The judgment was delivered on 24th March 2014, the 5 judge bench upheld the preliminary objections raised by the learned Attorney- General on the 16th July 2013. The application filed by the Petitioners was dismissed without costs. The court was on the view that,

  • any of the relief prayed for by the Petitioners cannot be granted in these proceedings in view of the immunity of the President contained in Article 35(1) of the Constitution; as the 6th Respondent has been appointed as the Chief Justice of Sri Lanka by a warrant issued by the President in terms of Article 107(1) of the Constitution.
  • any of the relief prayed for by the Petitioners that would have the effect of removing the 6th Respondent from office ;cannot be granted,  as he has been appointed in terms of Article 107(1) of the Constitution of Sri Lanka.