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Appointing judges to Apex Courts: Petition filed against Constitutional Council

28 November 2023 10:05 pm - 5     - {{hitsCtrl.values.hits}}

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Colombo, Nov. 28 (Daily Mirror)- A Fundamental Rights petition was today 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. 


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  Comments - 5

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  • Bandu Tuesday, 28 November 2023 10:37 PM

    If the appointment may be made only upon the APPROVAL of the Council, then Council has two options. A. Rubberstamp the Presidents nominee whoever good or bad. Or B. To check into it fully as designated by the intention of separation of power of Executive and Legislature. So who is this petitioner - an acolyte of the President.

    Ram Wednesday, 29 November 2023 04:45 AM

    Lots of merit in the application. CC appears to have sought a character reference from the CJ on the persons nominated by the President. How can CJ do this? The request causes lots of embarrassment to the CJ if he is to respond to CC request

    Susan Wednesday, 29 November 2023 05:55 AM

    It’s reasonable to appoint one leading judge in CA to Supreme Court for his efforts to give verdicts in many occasions to satisfaction of the government even it’s biased due to conflict of interest in public eyes

    Bandu Wednesday, 29 November 2023 09:43 AM

    Life and Nature is change. Unless we do the "unprecedented" at times we will never progress.

    Onlooker Wednesday, 29 November 2023 09:48 AM

    The CC is there as you say is to prevent unilateral decision-making by the holder of the office of the President in respect of the key appointments, and so the CC has to delve into nominations by the President. And if the CJ has initially nominated some one, then the CC is correct to ask details from CJ. If a CJ can be removed by the Parliament, then the CC has enough power to act to safeguard peoples interest.


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