FR petitions challenging non-appointment of CC, AG’s appointment dismissed

By S.S. Selvanayagam

The Supreme Court yesterday dismissed without cost both fundamental rights petitions respectively challenging the non-appointment of the Constitutional Council and appointment of Mohan Peiris PC as Attorney General.

Chief Justice Asoka de Silva with Justices P.A. Ratnayake and Chandra Ekanayake agreeing in his judgment held that the Article 35 of the Constitution do not permit the President to be cited as a respondent and since the impugned acts or omissions in the applications do not fall within Article 35(3), it is not possible to cite the Attorney General as a respondent under the proviso to Article 35(3).

He ruled that based on the above facts, both applications have been wrongly constituted and therefore fails in limine.

In the first petition, the petitioners Sumanasiri G. Liyanage and Subash Ravi Jayawardana dealt with the alleged acts or omission committed by the President who is cited as 1st respondent with regard to the non appointment of the Constitutional Council.

In the second petition, the Petitioners – Centre for Policy Alternatives and Rohan Edirisingha – dealt with the appointment of Mohan Peiris PC as the Attorney General by the President who is cited as 2nd respondent allegedly without following the procedure laid down and without obtaining the approval of the Constitutional Council.

President Mahinda Rajapaksa, the Speaker, President’s Secretary Lalith Weeratunga, the Attorney General and Opposition leader Ranil Wickremesinghe were cited as Respondents in the first petition while the Attorney General, the President, President’s Secretary and Mohan Peiris PC were cited as Respondents in the second.

M.A. Sumanthiran with Viran Corea, Suren Fernando and E. Tegal appeared for the Petitioners. Senior State Counsel Nerin Pulle appeared for the Speaker, the Prime Minister and the Attorney General. Sanjeeva Jayawardena with Senany Dayaratne instructed by Sudath Perera Associates appeared for Mohan Peiris PC on personal capacity. A.P. Niles appeared for the Opposition Leader Ranil Wickremesinghe.

The Chief Justice  in his judgment noted that during the period of filing these applications and the date of hearing on the preliminary objections, Article 41 of the Constitution had been amended and the Constitutional Council was no longer in existence.

He observed that the amendment to Article 41 was challenged in the Supreme Court under Article 121 of the Constitution and a five-member Bench of the Court had already made a determination on the Constitutionality of the said amendment and the Bill had become law.

He ruled that accordingly the Court would not have jurisdiction to consider the validity of the said law due to the express provisions of Article 80(3) of the Constitution.

He noted that due to the Constitutional Council not being in existence, it would be futile to grant most of the reliefs prayed for in these two petitions.

He observed that the President is made responsible to the Parliament in respect of the conduct of his official functions and Article 38(2)(a) quoted by the Petitioner himself actually deals with the Provisions which expressly enable the Parliament to take action in similar situations where it is stated as follows:

Article 39(2)(a): “Any Member of Parliament may, by a writing addressed to the Speaker, give notice of a resolution alleging the President is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity or that the President has been guilty of-

(i) intentional violation of the Constitution,

(ii) treason,

(iii) bribery,

(iv) misconduct or corruption involving the abuse of the powers of his office, or

(v) any offence under the law, involving moral turpitude, and setting out full particulars of the allegation or allegations made and seeking an inquiry and report thereon by the Supreme Court.”

The Chief Justice held that accordingly the Constitution expressly provides a procedure to deal with what the Petitioners describe as “intentional violation of the Constitution”.

Chief Justice also held that the Article 35 of the Constitution confers immunity on the President from having proceedings instituted or continued against him in any Court in respect of anything done or omitted to be done in his official or private capacity except in respect of matters specified in Article 35(3) of the Constitution.