Foreign Affairs

Flawed 19A Makes it possible for ‘Rajapaksa Judges’ To Continue

By Nagananda Kodituwakku

Nagananda Kodituwakku

Nagananda Kodituwakku

19A: Section 54 is flawed and violates the sovereignty in the men and women

Transitional Provision (Section 54) in the proposed 19th Amendment provides that each individual holding office on the day preceding the date on which it becomes law, as the Chairman or a member of the (a) Parliamentary Council (b) Public Solutions Commission (c) National Police Commission (d) Human Rights Commission (e) Commission to Investigate Allegations of Bribery or Corruption or (f) Finance Commission, shall cease to hold such workplace with effect from the date on which the 19th amendment becomes law. Apparently this move has been adopted by the Sirisena Administration for a cause, that the persons holding such offices referred to above certainly is a hindrance to installing of the Rule of Law and Good Governance.

Nevertheless, the mentioned Transitional provision offers that each individual holding office as (a) the Chief Justice (b) Judges of the Supreme Court (c) the President of the Court of Appeal (d) Judges of the Court of Appeal shall continue to hold such offices and shall, continue to physical exercise, execute and discharge the powers, duties and functions of that office, under the same terms and circumstances.

In the light of certain glaring flawed decision makings by the Supreme Court in the recent past under the de facto Chief Justice, Mohan Pieris, causing tremendous harm to the trust and self-assurance placed in the Judiciary by the folks, any concerned citizen might ask whether or not the Judges holding the office in the Supreme Court must be allowed continue to hold office or whether all the judges also shall ceased to hold office, might be with an alternative to reappoint honorable judges.

Just ahead of the Presidential election, folks of Sri Lanka witnessed as to how submissively the Judges in the Supreme Court, responded to the two questions referred to the Supreme Court by the former President Mahinda Rajapaksa who sought the Court’s opinion to contest for a third term. The Supreme Court, de facto Chief Justice, Mr Mohan Peiris P.C., with all other Justices agreeing, expressed it is opinion in really subservient tone and the Court declared that the President Rajapaksa should seek election for re-election for a additional term. It is important to note that the mentioned opinion was declared on a private matter only affecting the President Rajapaksa, getting denied the citizens any chance to express their views on the matter referred to the Court by the President. The concluding paragraph of the stated opinion was recorded in the following words.

Hence Your Excellency shall exercise your proper and energy vested in you by virtue of Post 31 (3A) (a) (i) of the Constitution and seek re-election for a additional term and there exists no impediment for Your Excellency to workout the right and powers accorded to you beneath the Constitution to offer yourself for a additional term’.

In the light of the provisions of Write-up 105 of the Constitution, which states inter alia that the Administration of Justice ‘which protect, vindicate and enforce the rights of the people’ shall mainly be the Supreme Court and the Court of Appeal of the Republic of Sri Lanka, in my view, any proper considering citizen of this country is entitled to make a case that the functionality of judicial duty in this manner is inappropriate, as such conduct tantamount to compromising of the people’s judicial power the Judges exercise on trust and as a result none of the judges who had ratified De facto Chief Justice Mohan Pieris’s Opinion is deserved to occupy the office as Judges in the Supreme Court.

Therefore, in my forthright view, any citizen of Sri Lanka is entitled to raise their issues that, unless the transitional provision in the 19th amendment bill (Section 54) is duly amended to contain every single Judge holding office in the Supreme Court who had ratified the mentioned opinion expressed by the de facto Chief Justice Mohan Pieris, to seize to hold office, collectively with other judges appointed to the Superior Court Program by the President Mahinda Rajapaksa, purely according to his whims and fancies, the 19th Amendment Bill in its present kind is undesirable as it has failed to address the will and want of the men and women of this country for a vibrant and independent judiciary.

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