Lawyers for Democracy calls upon the President to uphold the Constitution in appointing Judges

Lawyers for Democracy (LfD) is gravely concerned with the current constitutional impasse created due to the delay in appointing the President of the Court of Appeal. The process of appointment of judges set out in the Constitution must be respected to the letter and spirit of the Constitution. LfD notes that this delay sends a deeply troubling signal that the Constitution is to be disregarded according to the whims and fancies of the Executive and contrary to the Nineteenth Amendment to the Constitution. LfD takes this opportunity to urge President Sirisena to revisit his own pledges and to take immediate steps to uphold the Constitution.

The vacancy in the position of President of the Court of Appeal arose with the elevation of the then President of the Court to the Supreme Court on 9^th January 2019. Following this, the President appointed a judge of the Court of Appeal as Acting President of the Court of Appeal for two weeks. The same judge was appointed yet again to the same position on 24^th January 2019 without the approval of the Constitutional Council (CC). LfD is aware that the Constitutional Council has previously not approved the name of same judge for the post of President of the Court of Appeal.

LfD wishes clarify the constitutional position in this connection:

1. According to Article 41C (1) of the Constitution, the approval of the Constitutional Council is mandatory for the appointment of the following: Chief Justice and the Judges of the Supreme Court, President and the Judges of the Court of Appeal, Members of the Judicial Service Commission other than its Chairman, Attorney-General, Auditor-General, Inspector-General of Police, Parliamentary Commissioner for Administration (Ombudsman) and the Secretary-General of Parliament.
2. Article 41C (2) further provides that the approval of the Constitutional Council is needed for an acting appointment to the above offices for a period exceeding 14 days. Importantly, the proviso also requires that the approval of the Constitutional Council is necessary for acting appointments for any such office for successive periods not exceeding 14 days. The relevant provision is as follows:

41C. (1) No person shall be appointed by the President to any of the Offices specified in the Schedule to this Article, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President.

(2) The provisions of paragraph (1) of this Article shall apply in respect of any person appointed to act for a period exceeding fourteen days, in any Office specified in the Schedule to this Article:

Provided that no person shall be appointed to act in any such office for successive periods not exceeding fourteen days, unless such acting appointment has been approved by the Council on a recommendation by the President.

3. Article 109 (1) of the Constitution makes special provisions relating to appointment of an Acting Chief Justice or an Acting President of the Court of Appeal. Accordingly, an acting appointment can ONLY be made where the Chief Justice of the President of the Court of Appeal 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”. In other words, for an acting appointment to be made, there must be a ‘permanent’ President of the Court of Appeal who is temporary unable to exercise, perform and discharge the powers, duties and functions of his office.
4. Another special provision in Article 109 (1) is that such an acting appointment is subject to the approval of the CC. Thus, the 14-day period in Article 41C (2) has no application to an Acting Chief Justice or Acting President of the Court of Appeal. In other words, the approval of the CC is needed even for an acting appointment not exceeding the first fourteen days.
5. What is key is that there must be a permanent appointment of the President Court of Appeal before the President making any acting appointment. It is also significant to note that the appointment of a permanent President of the Court of Appeal is necessary for the validity and legitimacy of the Court itself, as Article 137 requires the Court of Appeal to consist of the President of Court of Appeal and six to eleven other judges.

Thus the appointment of a judge as the Acting President, both for an initial period of 14 days and then again for another period of 14 days, is ultra vires the Constitution.

LfD notes regrettably that the President has failed to send the names of suitably qualified candidates to the Constitutional Council to fill this vacancy. We are also deeply concerned with President Sirisena’s statement in Parliament on 6^th February where he attacked the Constitutional Council on this issue, without any lawful basis. Such unfair attack is unbecoming of the Head of State whose primary duty as provided in Article 33 (1) (a) is to respect and uphold the Constitution.

We also note that there has been a representation made by the Bar Association of Sri Lanka (BASL) pressing for an identified judge to be appointed. Such canvassing is inappropriate and highly damaging to the reputation of the BASL.

Lawyers for Democracy urges President Sirisena to take swift action to make appointments in keeping with the spirit and purpose of the Nineteenth Amendment and to do his duty as provided in the Constitution.

Lawyers for Democracy

Lal Wijenayaka

K.S. Ratnavale

JC Weliamuna

Lakshan Dias

Sudath Nethsinghe

Sunil Jayaratne

Harishka Nadeeshan

Prabodha Ratnayaka

On behalf of the Conveners

09 February 2019