S.Court to review President’s powers
Compulsory retirement age for public servants
(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;