Appointing judges to Apex Courts:Petition filed against Constitutional Council

• The petition alleged that the Constitutional Council had taken this decision in the context of such judges being nominated by the President for appointment to the Supreme Court and the Court of Appeal

By Lakmal Sooriyagoda  

A Fundamental Rights petition was yesterday filed before the Supreme Court seeking an order suspending the operation of a decision taken by the Constitutional Council, calling for a report from the Chief Justice regarding certain judges of the Court of Appeal. The petition alleged that the Constitutional Council had taken this decision in the context of such judges being nominated by the President for appointment to the Supreme Court and the Court of Appeal.  The members of the Constitutional Council including Prime Minister Dinesh Gunawardena, Speaker Mahinda Yapa Abeywardena, Opposition Leader Sajith Premadasa and several others were named as respondents in the petition.  

This petition alleges that the Constitutional Council on November 14 had submitted a questionnaire to the Chief Justice, regarding certain judges of the Court of Appeal. The petition maintained that a questionnaire directed at the Chief Justice by the Constitutional Council is in fact unprecedented and constitutes a grave infringement on the process of due administration of justice which results in the violation of the petitioner’s Fundamental Rights and the Rights of the Citizens of the Republic.  

The petition stated that the contents of the questionnaire submitted to the Chief Justice, blatantly undermines the independence of the judiciary, contravenes the principle of separation of powers, irrational and infringes the Fundamental Rights of the petitioner.  

The petition further states that Article 41C (1) of the Constitution establishes a mandatory procedure for appointments to certain offices, including the judges of the Supreme Court and the Court of Appeal. Accordingly, in respect of appointments to the Court of Appeal and Supreme Court, the President is mandated by law to submit a recommendation to the Council. The appointment may be made only upon the approval of the Council. The petitioner states that the rationale of Article 41C (1) is to prevent unilateral decision making by the holder of the office of the President in respect of the key appointments set out in the relevant schedule.  

This petition is to be supported by President’s Counsel Faiszer Musthapha.