11 judge bench requested by CPA for FR on CJ

In this Dec. 28, 2012 photo, Sri Lankan Chief Justice Shirani Bandaranayake carries flowers to offer at a Buddhist temple in Kelaniya, on the outskirts of Colombo (AP)

A motion has been filed on Monday by the Centre for Policy Alternatives (CPA) for a full bench of the Supreme Court to hear its Fundamental Rights petition against Chief Justice Mohan Pieris, the Daily Financial Times reported.

The CPA has challenged the constitutionality and legality of the appointment of the CJ on the grounds that the CJ is a respondent in the petition and cannot appoint a bench to hear the motion.

Attorneys for the Petitioner cite the fact that Pieris who is the sixth respondent in the petition “now purports to exercise the powers and functions of Chief Justice.”

In these circumstances, the motion says that Article 132 has been rendered unworkable and/or non-practicable.

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

CPA filed the FR application, on January 15, challenging his appointment and seeking interim relief from the Supreme Court preventing him from holding the office of CJ until the hearing into the petition was completed.

It has become necessary to move the entirety of the Supreme Court – 11 judges – to hear the case, says the motion by the CPA for a fuller bench, as the sixth respondent now the holder of the office of CJ.

“The jurisdiction of the Supreme Court may be exercised in different matters at the same time by the several Judges of the Court sitting apart in terms of Article 132 (2) of the Constitution,” the petitioner says.

Article 119 defines the Supreme Court as all the Judges of the Court, the motion points out.

The CPA motion considers that there is a situation where there cannot be an exercise of the powers vested by Article 132 since the holder of the office is not present, a senior constitutional lawyer told the Daily FT.

There is no vacancy created by law for the position and the Chief Justice cannot nominate the bench as he is a respondent in the case, therefore, it would be a violation of the laws of natural justice, he said.

Since the impeachment of former CJ Shirani Bandaranayake, the move signals a deepening of a grave constitutional crisis, violating 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 analysts said that the CPA motion deals directly with the reality that present status quo runs different to the law of the land and the mode in which the Judiciary has been compromised by the impeachment procedure.

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