BOTTOM FALLS OFF APPEAL COURT WRIT – JUDGES SAY IT ‘BROUGHT DISREPUTE’
Posted on January 9th, 2013

Court of Appeal erred in issuing writ against PSC – CA Judges (Courtesy The Daily News )

*Hurried judgement using vacation court-the usual Bench has been altered in the relevant court, and Justice Jayatilleke who normally sits on the Bench has been dropped, and a vacation court date picked to make a hurried judgement.

*Case argued, judgement, on same day-the case was argued and decided on the same day, and though the normal practice is to give a draft of the judgment for other judges to consider, obviously this kind of discussion would not have been possible as the judgment was issued on the same day.

A majority of Appeal Court judges have written to the President of the Appeal Court Justice S. Sri Skandarajah squarely finding him to be at fault over the writ that was issued in quashing the Parliamentary Select Committee (PSC) findings in application number 358/2012, made by the Chief Justice.

These judges have stated explicitly in the letter among other things, that the Judiciary cannot issue a writ on Parliament or other committee of Parliament.

After making a lengthy critique of the judgement, these judges go to the extent of asking the Appeal Court President: “Don’t you think that the other judges of the Court of Appeal are of the view that you have brought disrepute to the Court of Appeal?”. It is a very strong indictment on the Court of Appeal President, and of course his ill-advised writ purporting to quash PSC findings on the impeachment of the Chief Justice. In this context the judges have said that court can “ƒ”¹…”request’ Parliament to take some course of action, but cannot issue a writ – – which is in the manner of an “ƒ”¹…”order.’

They have explicitly stated in the letter that the head of the Appeal Court has erred, and the situation between the Judiciary and the Legislature now prevailing “ƒ”¹…”could have been avoided’ had they been consulted.

They have also said that the usual Bench has been altered in the relevant court, and Justice Jayatilleke who normally sits on the Bench has been dropped, and a vacation court date picked to make a hurried judgement.

They also say that the case was argued and decided on the same day, and though the normal practice is to give a draft of the judgment for other judges to consider, obviously this kind of discussion would not have been possible as the judgment was issued on the same day.

Though a reference to the Supreme Court (SC) on another case filed by a petitioner had been read out in court, no determination was made in this case, and the writers of the letter state that this was probably to preclude an appeal, so that the SC reference could be made use of as a precedent in the stated case where the writ was issued.

Court of Appeal erred in issuing writ against PSC – CA Judges

The majority of the Judges of the Court of Appeal admit that the Court of Appeal had erred in issuing a writ against the PSC which is a creature of the Parliament.

Most of the Judges of the Court of Appeal are against the President of the Court of Appeal in relation to the manner in which he handled the matter concerning the impeachment application of the CJ. They are of the view that had he consulted them before making these decisions, the present conflict between the legislature, executive and judiciary could have been avoided.

At present the case allocation in the CA is as follows:

The Court No 303 handles all writ applications filed in the year 2010-2013.

The Court No 206 is the other writ Court which handles all writ applications filed prior to 2010.

In Court no 303, the cases are presided by the President of the Court of Appeal namely, Justice Sriskandarajah who sits with Justice C Jayatillake.

Justice Anil Gooneratne sits in Court No 206.

Justice Salam sits in the Court that hears D C Final Appeals.

(For this paper it is relevant to mention only these three Courts)

In early December the writ application bearing No 358/2012 was filed and was to be supported before Court No 303 in which the President of the Court sat with Justice Jayatillake. But most unceremoniously Justice Jayatillake was dropped from hearing the said case and the President of the Court of Appeal handpicked two judges of his choice to hear the case. It is unprecedented to constitute a bench of three judges at the commencement of a case as at that time the Court had not even decided whether to accept the application or dismiss it. At that time the two regular judges could have conveniently decided whether there was merit in the application to issue notice or not. When Justice Jayatillake questioned the President as to why he was dropped from hearing those cases the reply given by the President was, that such matter was his prerogative.

notices issued

Having supported the application before the handpicked judges the Court issued notices on the respondents. On the day fixed for hearing the Court then referred to the Supreme Court questions relating to interpretation of certain provisions of the Constitution. (reference to the SC). The reference from the SC under Article 125 was sought by Court in case 358/2012 CA.

The SC reference bearing No 3/2012 was sent to CA on 2-01-2013. The reference was in relation to case CA 358/2012.

In the meantime the Hon Chief Justice filed writ application bearing No 411/2012. That morning of the 3rd January, the President of the Court of Appeal again unceremoniously dropped the permanent judge Jayatillake and directed the lawyers to support it before the earlier handpicked judges.

In 3rd January was a vacation court day. The SC reference was read in open Court. But the Court did not hear the arguments or make any determination in respect of the case bearing No 358/2012 on which the SC reference was sought. In short though the Court sought SC reference for that case the Court did not proceed with that case.

The reason may be as I feel that, if the Court were to make a determination in that case based on the SC reference, the party affected by that decision would have had the right to appeal against that decision to the Supreme Court. In that event the said case could not have been considered as a precedent to the latter case filed by CJ.

Supreme Court complex

Why did the Court of Appeal presided by the President of the Court of Appeal use a reference sent in relation to case bearing No 358/2012 for case 411/2012, filed by the CJ. In the case filed by the CJ, the Court had not made any reference to the SC under Article 125. Hope the CA will be able to answer this issue. The President of the Court of Appeal may also answer why he chose two judges on the day of the vacation Court and give preference for a case that came as any other case and decide to hear with three judges. These other two judges had no notice of this additional case unless they had been made aware before, that such a case would be supported on that day and to be ready. At this moment of time unless warned earlier the said two judges could not have even seen the brief in case 411/2012 filed by CJ. Although the case 411/2012 was to be supported in the vacation court in which Justice Jayatillake was sitting, but it was immediately transferred to the three bench which had been specially constituted to hear the case 358/2012. All the other cases fixed on that day was postponed to give preference for this case filed by CJ.

Having heard the case 411/2012 on 3rd January the Court issued notices on respondents. It is unprecedented and against the Supreme Court Rules to give a party only one working day to appear for notice issued by Court.

Notwithstanding this unprecedented hurry the Court took the case for argument on the 7th January. The case was argued and decided on the same day. It was not a bench order. It was a comprehensive judgment with other judges agreeing with the President of the Court of Appeal. The other two judges merely agreed and though could not have possibly seen the draft judgment as the case was argued and concluded and decided in one day. Usually when a case is heard by two or more judges the draft judgment is sent to other judges for their comments and approval or disapproval. But in this instance there could not have been any such discussion as the judgment was given on the same day the arguments were concluded. Mr President of the Court of Appeal could you please show us one case where three judges have heard and concluded in one day and a comprehensive judgment had been delivered on the same day with references to case law citations in the judgment. It was our view that after argument is over the parties are allowed to file written submissions citing the case law and the judgment is thereafter reserved for a future date.

judgment

Mr President of the Court of Appeal please let us know the names of respondents in your judgment in case bearing No 411/2012? How can you bind a party by your judgment that is not mentioned in your judgment? How many respondents have been discharged? How many persons have been added as “intervened”? Your judgment does not show any of these. Your judgment merely says “And 12 others”. Who are these twelve others? What was the hurry Mr President of the Court of Appeal for you to overlook all these?

Her Ladyship pleaded that the PSC in hearing her Articles of impeachment did not give adequate time to prepare. But Mr President you have given only one day for the respondent to prepare. Is that adequate time?

Mr President of the Court of Appeal, you obviously attached very high importance to the case filed by CJ since you felt that it should be considered by a bench of three judges, and two handpicked by you. There were two more senior judges whom you have decided to overlook. I am informed that Justice Sisira De Abrew had declined to hear the case. But you thought that the other senior judges were not fit to hear this application.

Mr President of the Court of Appeal, how is that you have in page 7 and 8 of the judgment made reference to foot notes. But in the body of the judgment there is no reference to those foot notes. Additionally, those foot notes begin with no 11 and did not see the prior numbers in the body of the judgment. Was the judgment written is such a haste.

Mr President of the Court of Appeal for your easy reference let me put below your unprecedented actions so that you may be able to explain why you have acted in such manner.

1. You have never delivered a judgment where three judges had sat and heard the arguments and decided the case in one day. As you know on that day the parties made lengthy submissions, but all three of you decided the case and delivered the judgment the same day. In other cases you have heard how many times have you postponed the judgments?

2. You have never given one working day’s notice for a party to appear before Court other than in this case.

3. The SC reference 3/2012 was for case bearing No 358/2012. But you have used that reference for case bearing No 411/2012. In these two cases the reliefs sought were different. In the former case the relief sought was for a writ of prohibition, and in the latter the relief was for a writ of certiorari to quash the PSC determination.

4. You have concluded the writ application 411/2012, but the cases for which SC reference were sought are not even taken up for argument.

5. You have ousted the regular judge of the writ Court without having the courtesy to mention that fact to him and broken a valuable tradition that prevailed in the Court of Appeal.

Mr President, do you not think that the other judges of the Court of Appeal are of the view that you have brought disrepute to the Court of Appeal, as most of the other judges of the Court of Appeal are not in agreement with the manner in which you have behaved in handling the cases relating to the impeachment of the CJ. I am informed that most of the judges are of the view that you have purposely failed to consult them before making any of these decisions and had made wrong decisions in hasty manner. They expressed that you have erred in issuing a writ against the Parliament. This as they expressed was the principle of Montesqui and separation of powers which you had failed to consider. Accordingly, due to the principle of separation of powers mentioned by Montesqui, one component of government cannot restrain the functions of another component of government.

Therefore, the judiciary cannot issue a writ against the Parliament or any committee of Parliament. The writ of certiorari is an order. And, the Court has no power to issue an order against the Parliament. The Court can only request. Therefore, you have erred in issuing a writ of certiorari against the PSC which is a creature of the Parliament. Most of the judges of the Court of Appeal are of the view that if you had consulted them before making these decisions, then the conflict that has now arisen between the legislature executive and the judiciary would have been avoided.

4 Responses to “BOTTOM FALLS OFF APPEAL COURT WRIT – JUDGES SAY IT ‘BROUGHT DISREPUTE’”

  1. jay-ran Says:

    How smart these BAFFOONS-JUDGES ARE TO GIVE A VERDICT WITHIN 8 HRS,HEARING BOTH SIDES REPRESENTATIONS???
    Will these Pundits work DAILY IN THIS SPIRIT EVEN DURING THE VACATION PERIOD TO END MANY CASES???
    All these bandits will get back with interest for the damages done to the judiciary and also helping the CJ who sided the culprits Golden Key Owners allowing the innocent depositors to suffer .All of them and CJ will burn in hell for this dirty act!!!

  2. Mohan Says:

    What are the names of these Appeal Court judges who supposed to have written to the President of the Appeal Court Justice S. Sri Skandarajah?
    Just for our knowledge.

  3. mario_perera Says:

    “A majority of Appeal Court judges have written to the President of the Appeal Court Justice S. Sri Skandarajah squarely finding him to be at fault over the writ that was issued …”

    Just another indicator that our society has gone haywire. Even judges are now wandering in a labyrinth, a foggy labyrinth at that. What the Appeal Court judges are purported to have done defies all legal logic. Once a judgment is pronounced, it stands. It can only be reversed by a stronger bench of the same court or by a higher court. Writing letters to the president of the bench that delivered judgment violates all legal traditions and the dictates of jurisprudence. This is one more instance to prove that the ‘gallery’ is holding the roost and imposing its own imperatives. The above mentioned letter writing judges are playing to this gallery, so low have they fallen. They do not seem to know who they are and what they are there for. A non-sense letter, is purported to have been written to the chief presiding judge by his peers, and has been released to the media. Now lo and behold all and sundry, meaning every dunce, has become a constitutional law expert. Every dunce is an ‘I know the law’ man. Whatever be the consequences of the impeachment, one can safely say according to all available evidence. that the rot seems to have set in within the judiciary itself. The requiem for the independence of the judiciary is already, according to this article, being sung by the judges themselves. Hultsdorp has already become the Kanatte of the law, and befits the new name “R.I.P”. Black courts and robes will now symbolize mourning for what was or for what is no more.

    Truly we do no appear to need law courts any more. Write your matter to the media, and this ‘all and sundry’ headed by Wimalawansa (it is an apt moment to probe into this man’s educational record!) will pass judgment. A new series of law reports must now be published titled: The ‘all and sundry law reports’.

    Indeed barbarians have already entered the temple of justice, that is in addition to the ones enthroned within. Really I see no difference between these media mongering judges and the hooligan Ph.D from Kelaniya.

    Mario Perera
    Kadawata

  4. mjaya Says:

    The leeches are to go on strike today and tomorrow….

    So will it make a difference?

    Court cases go on for decades anyway!

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