Lawyers for Democracy in a petition to the Supreme Court filed on Friday sought the intervention of the apex court to grant interim relief declaring that the President should desist from making further acting appointments to the office of the Court of Appeal Presidency until the matter is settled.
It also seeks for a declaration that the action of the Executive has amounted to a breach of Fundamental Rights of the petitioners.
Attorneys Lal Wijenayake, G. A. Sunil Jayaratne, Luxman Jothikumar and R. A. Namal Rajapakse who are representatives of the Lawyers for Democracy have filed the petition on the basis that they are vested with fundamental duties to uphold and defend the Constitution.
The petition has named the President, through the Attorney General, members of the Constitutional Council, Justice of the Court of Appeal Deepali Wijesundera and Secretary to the President Udaya Ranjith Senevirathne as respondents.
The issue of appointing a President to the Court of Appeal arose after former President Justice Surasena was elevated to the Court of Appeal on January 9.
Justice Deepali Wijesundera was appointed acting President of the Court of Appeal for two weeks and reappointed on January 24 for further two weeks.
“Around February 22, 2019, the President for the third time purportedly appointed the same Judge as the acting President of the Court of Appeal and thereafter, on or around March 6, 2019 made a similar appointment. Each of the appointments is contrary to the provisions of the Constitution in the manner hereinafter set out and entails a refusal and/or failure to take steps as constitutionally mandated in respect of filling the said vacant position of President of Court of Appeal,” the petition states.
From on or about January 9, 2019, the Court of Appeal does not have a lawfully and duly appointed President, Court of Appeal as mandated by the Article 137 of the Constitution.
The petitioners said that they are made to understand that the Constitutional Council’s approval was not given for the initial acting appointment, nor for subsequent re-appointing the same Judge as the acting President of the Court of Appeal and that such is contrary to the Article 41C of the Constitution.
The petitioners state that making several consecutive “acting appointments” to the Court of Appeal in the said premises and manneris arbitrary, capricious, irrational and ultra vires the Constitution.
The petitioners state that the President is not acting in accordance with the mandatory provisions of the Constitution.
They state that such actions have an adverse impact on the dispensation of / administration of justice and as such, the President is under a constitutional duty to make a permanent appointment to the position of the Presidency of the Court of Appeal.
This action is the negation of the efficacy of the 19th Amendment to the Constitution, which was enacted to prevent unilateral appointments to important judicial and public offices, including the President, Court of Appeal, so as to confer assurance of greater independence and integrity to the higher judiciary.