Chief Justice Sarath N. Silva has sent in two nominations to President Mahinda Rajapaksa, to fill vacancies in the Judicial Service Commission but legal experts were divided over the executive powers to do so without the approval of the Constitutional Council which is now defunct.
The two nominees, Justices Nihal Jayasinghe and N.K. Udalagama have been recommended by the Chief Justice to replace the two senior Supreme Court judges, Shirani Bandaranaike and T.B. Weerasuriya who resigned from the JSC last month, sparking a controversy. The two Judges stepped down saying they could not continue to work in the JSC for reasons of conscience.
When contacted by the Daily Mirror, leading lawyer Gomin Dayasri said there could be two schools of thought on the matter.
The Judicial Service Commission is comprised of the Chief Justice and two judges of the Supreme Court. The latter is appointed by the President but it should be approved by the Constitutional Council. Hence the President cannot go ahead with the appointment, Mr. Dayasri said.. Though certain executive powers of the President are now vested in the Constitutional Council under the 17th amendment, there also arises the need to fulfill some essential tasks despite the laws being ineffective.
President`s Counsel Wijedasa Rajapakse declined to comment on the issue describing it as too controversial.
Meanwhile Transparency International Chief J.C. Weliamuna said the President could not make these appointments unless they are approved by the Constitutional Council. He said the President would be setting a bad precedent if he makes the appointment.
The Civil Rights Movement of Sri Lanka (CRM) in a statement, demanded the judges who resigned from the JSC, to make the reasons known since it is ?incumbent on the judges to explain and the right of the public to know why they decided to take this drastic step?.
The CRM insisted that the JSC could not be reconstituted, at a time when the CC was not functioning.
The Human Rights Institute of the International Bar Association (IBA) in a letter to President Rajapaksa sought an explanation for the sudden resignation of the two Judges. IBA is the world`s largest lawyer`s organisation.