CPA wants all 11 SC judges for FR on Peiris

Thursday, 31 January 2013 00:15 - - {{hitsCtrl.values.hits}}

By Dharisha Bastians

The Centre for Policy Alternatives on Monday filed a motion for a full bench of the Supreme Court to hear its Fundamental Rights petition on the constitutionality and legality of the appointment of Chief Justice Mohan Pieris, on the grounds that the Chief Justice is a respondent in the petition and cannot therefore appoint a bench to hear the motion.

The motion signed by Attorneys for the Petitioners cites the fact that Pieris who is the sixth respondent in the petition “now purports to exercise the powers and functions of Chief Justice.” The motion says that in the circumstances, Article 132 has been rendered unworkable and/or non-practicable.

Article 132 of the Constitution vests in the Chief Justice the power to appoint five or more judges of the Supreme Court at his discretion, at the request of two or more judges or on the application of a party to any case if it is the opinion of the Chief Justice that the question is one of general and public importance.

On 15 January, the CPA filed the Fundamental Rights application challenging Pieris’ appointment as Chief Justice and sought interim relief from the Supreme Court to prevent him from holding the office until the hearing into the petition was completed.

The motion by the CPA for a full bench of the court says that with the sixth respondent now the holder of the office of Chief Justice, it has become necessary to move the entirety of the Supreme Court – 11 judges – to hear the case. The petitioner says that in terms of Article 132 (2) of the Constitution, “the jurisdiction the Supreme Court MAY be exercised in different matters at the same time by the several Judges of that Court sitting apart...”

The motion says that Article 119 defines the Supreme Court as all the Judges of the Court. A senior constitutional lawyer told the Daily FT that the CPA motion contemplates that there is a situation where there cannot be an exercise the powers vested by Article 132 since the legal holder of the office is not present and there is no vacancy for created by law for the position and that the nomination of the bench cannot be done by Chief Justice Mohan Pieris since he is a respondent in the case and therefore it would be a violation of the laws of natural justice.

The move signals a deepening of a grave constitutional crisis the country is facing since the impeachment of Chief Justice Shirani Bandaranayake in violation of a Supreme Court order that ruled the process to remove her from office was unlawful and the appointment of her successor, legal analysts said.

The CPA motion deals directly with the fact that the current status quo runs contrary to the law of the land and the way in which the Judiciary has been compromised by the impeachment process, the analysts said.