Supreme Court clears obstacles to judicial appointments

By Lakmal Sooriyagoda   

A Fundamental Rights petition filed by an Attorney-at-Law seeking an order directing the Constitutional Council to approve the recommendation made by former President Ranil Wickremesinghe to appoint the incumbent President of the Court of Appeal, Nissanka Bandula Karunaratne, as a Supreme Court judge was dismissed yesterday by the Supreme Court with two million rupees  legal costs.   

With this Supreme Court judgement, there is no legal barrier for the President and the Constitutional Council to appoint judges to the Supreme Court.  

A three-judge bench of the Supreme Court, comprising Justices Preethi Padman Surasena, Achala Wengappuli and Mahinda Samayawardena held that none of the respondents including the members of the Constitutional Council have infringed any of the Fundamental Rights of the petitioner guaranteed by the Constitution.   

The Supreme Court ordered the petitioner Sarith Maheeputhra Pathirathne to pay costs of Rs. 500,000 each to Dr. Prathap Ramanujam, Dr. Dilkushi Anula Wijesundere and Prof. Dinesha Samararatne, who not being Members of Parliament but being persons appointed as members of the Constitution Council. The petitioner was further ordered to deposit another Rs. 500,000 in the Registry of the Supreme Court as costs of the State. The Registrar was directed to take necessary steps to ensure the payment of these costs within 02 months from yesterday.  

The Supreme Court held that the Petitioner’s action to challenge the majority decision of the Constitutional Council is not a litigation in the public interest but is totally against the interest of the public and against the expectations of the provisions of the Constitution.   

The Supreme Court further observed that the Constitutional Council is not only entitled but also has a solemn duty to consider allegations which have emanated from more than one source against the conduct of the Nominee Judge.   

On April 30, 2024, the Supreme Court issued an interim order preventing the President from submitting any other nomination to fill the vacancies in the Supreme Court other than the vacancy in the position of Chief Justice.   

In his petition, the petitioner stated that the Constitutional Council’s decision to reject the recommendation of the President to fill a vacancy in the Supreme Court with the senior most judge of the Court of Appeal who had also been endorsed by the Chief Justice is arbitrary and unreasonable.   

“The Petitioner’s action to challenge the majority decision of the Constitutional Council is not a litigation in the public interest but is totally against the interest of the public and against the expectations of the provisions of the Constitution. I have also taken the view that the Petitioner has lacked uberrima fides (utmost good faith); he has filed this Petition for collateral purposes and collateral considerations or at the behest or instigation of others,” Justice Surasena observed.  

Justice Surasena further observed that the petitioner’s action to challenge a letter submitted by the Constitutional Council was not a genuine act on the part of the Petitioner.