(Lanka e News - 16.March.2019, 8.25PM) Four senior lawyers in the island yesterday filed a Fundamental Rights petition against the President Pallawatte Gamaralalage Maithripala Yapa Sirisena, who had violated the constitution and had violated fundamental rights of petitioners. The petition was filed by Lal Wijenayake, Sunil Jayaratne, Lakshman Jotikkumar and Namal Rajapaksa (not a Medamulana fake lawyer). As following as the petition submitted to the Supreme Court.
in the SUPREME court of the democratic socialist republic of sri lanka.
“137 The Court of Appeal shall consist of the President of the Court of Appeal and not less than six and not more than eleven other Judges who shall be appointed as provided in Article 107”
Annexed herewith marked P2(a) is a printout of the official webpage of the Court of Appeal available online at http://courtofappeal.lk which discloses an Acting Appointment as the President Court of Appeal accessed on 01-03-2019. Further annexed herewith marked P2(b) is a copy of an extract of the daily court list for 05-03-2019 as available on the said official website of the court of appeal accessed on 01-03-2019
The Petitioners are reliably made to understand that the Constitutional Council’s approval was not given for the initial acting appointment, nor for subsequent re-appointing the same Honourable Judge as the acting President of the Court of Appeal. The Petitioners state that such is contrary to Article 41C of the Constitution and in particular the proviso to Article 41C(2). The Petitioners further state that there is no provision in Article 109(1) for The Hon. The President to make acting appointments, in the manner done to date. Further, such is in contravention of Article 137 of the Constitution.
The Petitioners are made to understand that The Hon. The President has conveyed the name of the 12th Respondent to the Constitutional Council for consideration and approval for appointment, as the President of the Court of Appeal. The Petitioners are made to understand from information available in the public domain, that such name as not been approved on several occasions by the said Constitutional Council.
Annexed herewith marked P3 is a copy of a news item contained on Daily FT Web accessed on 03-01-2019 titled Constitutional Council again rejects President’s nominee for Appellate Court Chairman available online at http://www.ft.lk/news/Constitutional-Council-again-rejects-President-s-nominee-for-Appellate-Court-Chairman/56-671643
CONTINUED ACTING APPOINTMENT TO PRESIDENT COURT OF APPEAL
The Petitioners state that the Hon. 12th Respondent has thus been continuously and successively appointed as the acting President of the Court of Appeal from on or around 9th January 2019 up to date. The Petitioners state that “acting appointments” to the office and position of President of the Court of Appeal are permitted only in the limited circumstances set out in Article 109(1) of the Constitution where such existing President is “(...) is temporarily unable to exercise, perform and discharge the powers, duties and functions of his office, by reason of illness, absence from Sri Lanka or any other cause (...)”. The Petitioners state that in any event such appointment can be made only subject to the approval of the Constitutional Council, and after such Hon. Judge takes/makes and subscribed to the required oath as required under Article 107(4) of the Constitution.
To the best of the Petitioners’ knowledge and belief, the Constitutional Council has not approved the Acting Appointment of the 12th Respondent and respectfully seeks an appropriate Order from Your Lordships’ Court directing any one or more of the Respondents to submit to Your Lordships’ Court all such approvals (if any).
The Petitioners state that making several consecutive “acting appointments” to the Court of Appeal in the said premises and manner, is inter alia, arbitrary, capricious, irrational and ultra vires the Constitution and in particular Article 137 as read with Article 109 and 41C. The Petitioners state that therefore The Hon. The President [represented in these proceedings by the 1st Respondent AG] is not acting in accordance with the relevant mandatory provisions of the Constitution. The Petitioners state that such actions have an adverse impact on the dispensation of / administration of justice and as such, The Hon. the President is under a constitutional duty to make a permanent appointment to the position of President of Court of Appeal with the approval of the Constitutional Council had and obtained as required by the Constitution.
The Petitioners state that in view of the public importance of the matter, on or around 09-02-2019, Lawyers for Democracy issued a public statement, clarifying the constitutional provision on this regard and calling upon the President to respect the Constitution in appointing Judges.
Annexed herewith marked P4 is a copy of the full text appears on DailyNews Online accessed online on 12-02-2019 titled ‘Lawyers for Democracy urges President to uphold Constitution’ available online at http://www.dailynews.lk/2019/02/12/law-order/177182/lawyers-democracy-urges-president-uphold-constitution
APPOINTMENT TO THE HIGHER JUDICIARY
The Petitioners state that the career judiciary in Sri Lanka is the Minor Judiciary and commences with a selection and appointment process by the Judicial Service Commission (hereinafter abbreviated as ‘JSC’) with appointments and promotions being made by the said JSC up to the stage of the High Court, in respect of the appointments to which the JSC recommends appointments to the High Court to the Hon. The President, who thereafter makes appointments under and in terms of Article 111 of the Constitution.
The Petitioners state that where appointments to the Court of Appeal and the Supreme Court are concerned, appointments to such office are made by The Hon. the President [represented in these proceedings by the 1st Respondent AG] upon the approval of the Constitutional Council as such appointed to the Court of Appeal and the Supreme Court are not promotions per se, but stand alone appointments to a constitutional position.
The Petitioners state that as set out by Sir Gerard Brennan “(…) Judicial appointment is not a stepping stone in a career: it is prima facie a dead-end job of the highest importance”. Accordingly, appointments to the Higher Judiciary must be made in accordance with the Constitution which requires the approval of the Constitutional Council.
Annexed herewith marked P5 is a copy of the cover page and page 585-586 of Dr. A.R.B. Amerasinghe’s book Judicial Conduct Ethics and Responsibilities.
FAILURE TO DULY RECOMMEND NAMES TO THE CONSTITUTIONAL COUNCIL & CONCLUDE APPOINTMENT PROCESS
The Petitioners state that since 9th January 2019, no appointment has yet been made to the office and position of President of the Court of Appeal. The Petitioners are aware that such has resulted in the constitution of the benches of the Court of Appeal being unconstitutional and disrupted, and on occasion resulting in concerns of the public vis-à-vis the effective hearing of cases. Such adversely affects the due dispensation of justice by the Court of Appeal.
The Petitioners state that there is a constitutional duty incumbent on The Hon. the President to duly recommend names to the Constitutional Council, for approval for appointment by him to the office and position of President of the Court of Appeal, in light of the circumstances hereinbefore morefully enumerated.
VIOLATION OF FUNDAMENTAL RIGHTS
In the totality of the aforesaid circumstances hereinbefore morefully set out, the Petitioners are advised to state that the actions of The Hon. the President, and the aforesaid failure to duly recommend names to the Constitutional Council, for the office and position of President of the Court of Appeal, is arbitrary, capricious, irrational and/or ultra vires the Constitution and violative of their rights under Articles 12(1) for the following reasons amongst others that may be formulated by way of Counsel at the appropriate time;
By virtue of Article 33(1)(a) it shall be the duty of The Hon. the President to ensure that the Constitution is respected and upheld and therefore, it is his constitutional responsibility to make chapter VII A of the Constitution workable to achieve the objectives of the Nineteenth (19th) Amendment to the Constitution. As such, The Hon. the President is under a constitutional duty to recommend (an)other name(s) to the Constitutional Council, enabling thereby the Constitutional Council, to accept suitable nominees under Article 41C of the Constitution;
Continuously forwarding the same name which had been previously rejected several times is arbitrary, capricious, irrational and/or for a collateral purpose;
No acting appointment can be made without approval of the Constitutional Council and any such acting appointment sans approval is contrary to Article 41 of the Constitution [as read with Article 109];
Consecutive actions making acting appointments as Acting President Court of Appeal in the given circumstances are contrary to Article 4(d) of the Constitution;
The continued delay and failure to make nominations to the Constitutional Council violates the Rule of Law and adversely impacts on the Independence of the Judiciary
The said decisions are clearly contrary to the President’s powers and duties as set out in Article 33 of the Constitution, and in particular Article 33(1)(a) as read with Article 33(1)(c) as read with Article 33A of the Constitution;
In the circumstances hereinbefore morefully enumerated, the Petitioners state that;
The actions complained above, are unconstitutional, and violative of their rights under Article 12(1) of the Constitution;
The said actions of the Hon. The President are unconstitutional, arbitrary, capricious, steeped in mala fides and appear to be for some undisclosed collateral purposes.
The Petitioners are advised to state that Article 35 of the Constitution, only confers immunity on the President in respect of civil or criminal proceedings, and the exercise of Your Lordships Court’s jurisdiction under Article 126 is unfettered in this regard, except in so far as, it is only open to the Petitioners to move Your Lordships’ Court against the 1st Respondent AG.
The Petitioners state that the effect of the actions impugned through this application is the negation of the efficacy of the 19th Amendment to the Constitution, which was enacted inter alia, to act as a check and a balance on the ability of the Executive President from unilaterally appointing persons to function in important judicial and public offices, including that of President, Court of Appeal, so as to confer assurance of greater independence and integrity to the higher judiciary.
The Petitioners state that grave and irreparable loss would be caused, and the instant application would be rendered nugatory, unless Your Lordships’ Court grant and issue an Interim Order that The Hon. the President [represented in these proceedings by the 1st Respondent AG] should desist from making any further acting appointments to the office and position of President, Court of Appeal, until the hearing and final determination of this application.
The Petitioners respectfully seek the indulgence of Your Lordships' Court, considering the limited material readily available in the public domain and the severe time restraints, to reserve their right to:
Amend pleadings, add any person/persons as parties to this application in the event of further material revealing their complicity of the actions complained in the preceding paragraphs;
Tender any further evidence or affidavits and documents as necessary substantiating the averments contained above.
The Petitioners are advised to state and therefore state that the aforesaid actions of the Respondents amount to executive and/or administrative action within the meaning of Articles 17 and 126 of the Constitution. The Petitioners specifically state that none of the asseverations contained hereinbefore come under Article 33(2)(g) of the Constitution.
The Petitioners state that they have not invoked the jurisdiction of Your Lordships’ Court previously in respect of matters pleaded herein.
WHEREFORE the Petitioners most respectfully pray that Your Lordships’ Court be pleased to grant and issue:
the Petitioners leave to proceed with this application in the first instance;
an Interim Order that The Hon. the President [represented in these proceedings by the 1st Respondent AG] should desist from making any further acting appointments to the office and position of President, Court of Appeal, until the hearing and final determination of this application.
A Declaration that the Petitioners’ fundamental rights under Article 12(1) have been and continue to be violated by the actions of The Hon. The President, represented by the Respondent AG;
Appropriate Interim Directions that The Hon. The President represented by the Hon. the Attorney General, and/or the 13th Respondent of the Presidential Secretariat to submit to Your Lordships’ Court;
The decisions and actual letters of appointments, pertaining to the Acting Appointments made to the Office of President Court of Appeal from on or around 9th January 2019 and thereafter from time to time;
The Approvals and/or correspondence (if any) of the Constitutional Council, received by The Hon. the President pertaining to the Acting Appointments made to the office and/or position of President, Court of Appeal after 9th January 2019.
An Interim Direction on the 2nd to 11th Respondent CC, to submit to Your Lordships’ Court, all decision(s), correspondence and deliberation(s) pertaining to any acting appointments as President, Court of Appeal purporting to have been made in respect of the Hon. 12th Respondent;
A direction that The Hon. the President, represented by the Hon. the Attorney General, is required to forward fresh suitable nominations acceptable to the Constitutional Council for the office and position of President of the Court of Appeal;
A Declaration that the decision to consecutively make acting appointments to the office and position of President of the Court of Appeal without the approval of the Constitutional Council is violative of the Constitution and in particular Article 41C of the Constitution read with Article 12(1);
Declare that the actions of The Hon. the President represented by the Hon. the Attorney General, have violated and/or continue to violate the Constitution and in particular, Articles 33, 41C & 109 thereof;
Declare that The Hon. The President represented by the Hon. the Attorney General, has acted contrary to the Constitution, and in particular Articles 33(1)(a) 33(1)(c) & 33A as read with Article 4(d) of the Constitution;
Grant exemplary costs,
Make such further and other just and equitable orders as to Your Lordships’ Court shall seem fit, in the circumstances of this application, under and in terms of Article 126(4) of the Constitution of the Republic; and
Such further and other reliefs as to Your Lordships’ Court shall seem meet.
Attorney-at-Law for the Petitioners
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