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Appeal Court judgment nullifying PSC proceedings against CJ 43
AG’s request to set aside findings takes precedence over MPs motion
The special five-judge Bench of the Supreme Court refused the motion filed by two Parliamentarians asking the court to hear them before deciding on an appeal by the Attorney General seeking to set aside the judgment of the Court of Appeal that nullified the findings and the proceedings of the Parliamentary Select Committee (PSC) in respect of Chief Justice 43 Shirani Bandaranayake.
A special Bench comprising Justices Saleem Marsoof PC, Chandra Ekanayake, Sathya Hettige PC, Eva Wanasundera PC and Rohini Marasinghe refusing the motion noted that it was undated and was not supported by an affidavit.
Two counsel J.C. Weliamuna and M.A. Sumanthiran appearing for the two respondent Parliamentarians who were opposition members of the PSC in support of their motions urged to hear them as respondents in opposition to the appeal by the Attorney General who was seeking to overturn the Court of Appeal judgment delivered infavour of the petitioner Dr. Shirani Bandaranayake quashing the proceedings and findings of the PSC.
Both counsel confirmed that when the special leave appeal was taken up on June 10, parties agreed that counsel for respondents could raise their preliminary objections to the maintainability of the AG’s appeal first, before going into the substantial matters i.e. whether the Court of Appeal judgment was seemingly wrong and whether the Supreme Court should go into the matter.
The Supreme Court rejected the preliminary objections of the two Parliamentarians on June 28 that the AG was not a party to the petition filed by Chief Justice 43 but only assisted the court invited by the Court of Appeal, and so could not appeal against the judgment of the Court of Appeal.
The court also rejected the preliminary objections that respondents including the Speaker failed to “comply” with the Court of Appeal order before the Attorney General (AG) complained to the Supreme Court that the judgment was unlawful and ultravires.
After rejecting the preliminary objection on the maintainability of the AG’s appeal, the Supreme Court granted the AG the ‘Leave to Appeal’ on certain questions of law without hearing the 11th and 12th respondents.
They also pointed out that when it was agreed on June 10 to hear the two respondents in opposition to the appeal by the AG when it was to be taken up on July 16 (last Tuesday), two counsel pointed out adding that they could verify the truth of it by listening to the audio recordings.
The counsel also pointed out that Attorney General Palitha Fernando could confirm this fact. They argued that the failure to give respondents a fair hearing before granting the AG ‘Special Leave to Appeal’ was erroneous and was in violation of natural justice.
M.A. Sumanthitran appeared for the 11th respondent Parliamentarian R. Sampanthan.
Counsel J.C. Weliamuna appeared for Parliamentarian Vijitha Herath. Deputy Solicitor General Shaveendra Fernando appeared for the Attorney General. The Appeal was fixed for hearing on September 26.
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