The overlooking of the country’s second senior most Judge Justice Deepali Wijesundara successively for promotion in judicial appointment has led to the Bar Association of Sri Lanka writing to President Maithripala Sirisena to consider her for promotion.
The letter dated February 5, 2018 by the Secretary of the Bar Association of Sri Lanka (BASL) Kaushalya Nawarathne annexes a petition signed by Lawyers of the Appellate and Original Courts calling the treatment of Justice Wijesundara “unjust”.
Wijesundara was nominated for appointment as a Supreme Court judge initially and thereafter as the President of the Court of Appeal. However, the Constitutional Council rejected her nomination for both promotions, the most recent being as the President of the Court of Appeal creating a deadlock in the functioning of the country’s second apex court.
Sources close to President Maithripala Sirisena said that the deadlock will continue with Sirisena deciding to continue to nominate Wijesundara as the President of the Court of Appeal every two weeks. “ He wont give in, this time and is adamant” the Daily Mirror was told.
As a result the functioning of the Court of Appeal has been hindered due to Justice Wijesundara sitting as a Judge in two courts. The main Court of the Court of Appeal in her capacity as Acting President and also in her capacity as a Judge of the Criminal Court of Appeal.
The Petition signed by the Lawyers which the Daily Mirror has seen a copy of states that it is the treatment of justice Wijesundara is unjust and a deterrent to career judicial officers.
“Regrettably, her Ladyship has been overlooked for a number of judicial promotions on numerous occasions. We, find this practice unfair, unreasonable, unjust and we see it as a deterrence to career Judicial Officers who foster legitimate expectations of being promoted along the Judicial hierarchy without impediment” the Petition said.
Justice Wijesundara is a career judge having joined the judicial service in 1984 as a magistrate. She thereafter was appointed to the Court of Appeal in 2011. During her 35 years of service, she had no complaints on her conduct as a Judge, sources at the Judicial Service Commission confirmed. She is to retire in December 2019.
Since her promotion to the Court of Appeal she has been overlooked on numerous occasions for promotion.
Following the recent elevation of Justice Padman Surasena to the Supreme Court, Justice Deepali Wijesundara was nominated by the Executive as President of the Court of Appeal. Members of the Constitutional Council (CC) confirmed that the office of the CC had received a letter from the Chief Justice Nalin Perera, which was “unfavourable” to the appointment of Wijesundara. It is learnt that the basis of the Chief Justices views had been based on the lack of “administrative” wherewithal of Justice Wijesundara.
Justice Wijesundara however, previously served as the Chief Judge of the High Courts of the Republic prior to her appointment as a judge of the Court of Appeal .
Justice Wijesundara’s name was recommended by the then sitting Chief Justices Priyasath Dep and K. Sripavan for promotion to the Supreme Court previously according to sources, following nomination by the Executive. Her nomination did not result in approval of the Constitutional Council despite the said recommendations. No reasons were provided at the time.
Whilst serving as the Chief Judge of the High Courts of the Republic she fell out of favour with the then opposition figures after her judgement in the case of Field Marshal Sarath Fonseka. She was the President of the Trial–at-Bar and delivered verdict agreed by Judge M.Z. Razeen. Judge W. Warawewa gave a dissenting judgement. The Judgement continues to stand after the Appeal to the Supreme Court was withdrawn and the former General given a Presidential Pardon.
10 judges have been promoted to the Supreme Court since January 8, 2015 commencing from Justice Anil Goonarathne who was appointed on the 30th of January 2015.
The Petition has been submitted to the Secretary of the Bar Association of Sri Lanka who had minuted that the Petition would be sent to the Constitutional Council and the President of the Republic.
Earlier when two vacancies arose to the Supreme Court last year the names of Justice Deepali Wijesundara, Justice Gamini Amarasekara Justice S. Thurairajah and Justice Kumudini Wickremasinghe were nominated by the President. The appointments became a grinding point between the Executive and the Constitutional Council, with the former acceding to the approvals of the Constitutional Council three months after the appointments were ratified by the Constitutional Council.
Multiple members of the Constitutional Council speaking to the Daily Mirror on the condition of anonymity said they had no power to recommend names to the Executive. “Unlike to independent commissions, in appointments to the Apex courts the only power the CC has is to give the red or green light. That is all”
They said that all nominations and rejections have been unanimous.
“The Council is to meet on the 7th of February. During this whole period all appointments and rejections have been unanimous barring the participation of former speaker Chamal Rajapaksa and Mahinda Rajapaksa during the last meeting. From the appointment of the Chief Justice, who was the nominee of the President which was approved, all decisions pertaining to the nominations to apex courts remained unanimous.
The ratification was based on the names sent to us by the President.”,The Daily Mirror was told. Members said that the letter of the Chief Justice was tabled at the first meeting of the Council this year when the nomination for the President of the Court of Appeal was taken up for consideration. According to the sources, the letter was the main point of contention for non-ratification of Justice Wijesundara for the post of President Court of Appeal.
However, no reasoning was provided at the time for the non-approval of Justice Wijesundara during the previous nominations to the Supreme Court.
The current deadlock which has also resulted in the non-filling of a vacancy has created issues within the administrative functioning of the Court of Appeal.
There was insistence in the Petition that there remained no constitutional bar to the appointment of Justice Wijesundara.
“In the absence of a Constitutional bar in promoting Deepali Wijesundera J ( Justice) we urge all those responsible to elevate her to a suitable Judicial Position, which position her Ladyship is entitled to” the Petition said.
The Constitutional Council comprises ten members headed by the Speaker Karu Jayasuriya. The other members are, Prime Minister Ranil Wickremesinghe, Opposition Leader Mahinda Rajapaksa, Minister of Justice Thalatha Athukorala the Prime Ministers nominee, former speaker Chamal Rajapaksa, JVP MP Bimal Rathnayake and Mahinda Samarasinghe as the Presidents nominee. N. Selvakumar, Javid Yusuf and Jayantha Danapala. (Hafeel Farisz)