SC seeks end to CC see-saw

   
Wants President, PM, Opp. Leader to reach consensus and report by Oct. 16

By Susitha R. Fernando

The Supreme Court yesterday observed that the President, Prime Minister and the Leader of the Opposition should reach a consensus on the nominations to the Constitutional Council and inform the outcome to Courts on October 16.

The bench comprising Chief Justice Sarath N. Silva and Justices Shiranee Tilekawardena and K. Sripavan made the direction sequel to a fundamental rights application filed by two citizens complaining that their rights had been violated due to the non-appointment of the Constitutional Council.

The petitioners Sumanasiri Liyanage – a  senior lecturer of economics at University of Peradeniya and attorney  Subash Ravi Jayawardena, an Executive Director of South Asia Peace Institute filed this application citing President Mahinda Rajapaksa, Speaker, W. J. M. Lokubandara, President’s Secretary, Lalith Weeratunga, Attorney General and Opposition Leader, Ranil Wickremasinghe as respondents.

In their petition they complained that despite repeated requests by the public and civil society organizations the Constitutional Council had not been reconstituted as fresh appointments had  not been made since March 2005. Thereby the Constitutional Council, a mandatory requirement under the 17th Amendment to the Constitution has ceased to be in existence for a period of 3 years.

The petitioners said the mandatory duty to appoint members to the Council was vested with the President.

Although nominations had been made, disputes as to the minority parties representation to the Council waylaid the process of the constituting the Council. On January 10, 2008 the Opposition Leader communicated to the Speaker of the nomination of former Auditor General. S. C. Mayadunne

However the process of appointing members to the Constitutional Council has come to a standstill after all the necessary nominations have been made, they said.

When the matter was taken up yesterday the court observed that the appointment was dragging due to disagreements by the parties.

“Unless there is a great degree of consensus, the Constitutional Council cannot be appointed,” the bench said.

The bench told Solicitor General Priyasath Dep who appeared on behalf of the President to inform about it to the President and report to court while Shibly Aziz PC and A. P Niles who appeared on behalf of the Opposition Leader, Ranil Wickremesinghe were asked to inform him about reaching a consensus.

Mr. Aziz undertook to comply while the Solicitor General Dep sought for more time since the President was out of the country.

The court directed the counsel to notify court on the development on October 16.

M. A. Sumanthiran with Viran Corea and Suren Fernando appeared for the two petitioners.

S.Court to review President’s powers

S.Court to review President’s powers

 
   
Compulsory retirement age for public servants

By S.S.Selvanayagam

(DM 23rd Sep 2008)

The Supreme Court yesterday granted leave to proceed with the rights violation petition challenging the Gazette notification seeking to vest powers in the President to extend the age of compulsory retirement of any public officer appointed by the President, if he considers it expedient.

The Bench comprising Chief Justice Sarath N. Silva, Justices Shiranee Tilakawardane and K. Sripavan granted leave for the alleged infringement of fundamental right to equality and equal protection of the law. Court also stayed the operation of the said Gazette Notification.

The Chief Justice reiterated that there was separation of powers for law makers and executives and that law making power was delegated power and vesting of power was legislative power.

He said retirement meant the appointment was terminated and employment ceased. “If I reach 65 years of age, I have to go,” he said.The matter would be taken up on October 6.

In the petition The Centre for Policy Alternatives (CPA) and its Legal Director Rohan Edrisinha cited the Attorney General, President Mahinda Rajapaksa, President’s Secretary Lalith Weeratunga, Public Service Commission and National Police Commission as respondents.

M.A.Sumanthiran with Viran Corea and Suren Fernando instructed by Lilanthi de Silva appeared for the petitioners. Deputy Solicitor General Shavindra Fernando appeared for the Attorney General.

The Petitioners made this Application in their own right, and in the public interest, with the objective of safeguarding the rights of the general public of Sri Lanka.

On August 31, 2008, the Petitioners became aware that the President had purported to “amend the Rules made in terms of [The Public and Judicial Officers (Retirement) Ordinance]” by virtue of a notification in the Gazette(Extraordinary) bearing No.1562/1 of 11th August 2008.

The said Gazette seeks to vest powers in the President to, “notwithstanding anything in paragraph (1) of this rule… …if he considers it expedient [to] extend the age of compulsory retirement of any Public Officer appointed by the President”.The Petitioners state that the purported notification by the said Gazette will permit inter alia the extensions of terms of office of certain Public Officers (outside of the consultative mechanisms provided for by the Constitution for the appointment of Public Officers), with the very real likelihood that such extensions may be based on considerations other than on objective considerations which would otherwise be considered by the mechanisms provided for by the Constitution.

They Petitioners maintain that the de facto removal and/or effective circumvention and/or culture of disregard for the said Constitutional and legal provisions erode and jeopardize the Rule of Law which is an essential feature of a democratic State governed according to law.

In the aforesaid premises, the Petitioners contend that the purported Gazette notification is ultra vires and contrary to, and inconsistent with, (the afore-mentioned provisions of) the Constitution, and infringe the fundamental rights of Petitioners, Public Officers and the general public, especially those fundamental rights to equality and equal protection of the law, right against the discrimination on the ground of political opinion, race, religion, language etc and right to freedom of thought, conscience and religion, freedom of speech and expression as well as the freedom to engage in association with others in any lawful occupation, profession, trade, business or enterprises  that are guaranteed by the Constitution.

Petitioners are asking the court to declare that the notification contained in Gazette (Extraordinary) bearing No.1562/1 of 11th August 2008 (P3) constitute present and continuous infringement and involve imminent further infringement of the fundamental rights of the Petitioners, Public Officers and the general public.

They are also asking the court to declare that any steps taken under and in terms of the notification contained in Gazette (Extraordinary) bearing No.1562/1 of 11th August 2008 (P3) infringe the fundamental rights of the Petitioners, Public Officers and the general public and to declare that the purported Gazette (Extraordinary) bearing No.1562/1 of 11th August 2008 (P3) is ultra vires, a nullity and/or void in law;

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