19A: Section 54 is flawed and violates the sovereignty in the people
Transitional Provision (Section 54) in the proposed 19th Amendment provides that every person 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 Services 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 office with effect from the date on which the 19th amendment becomes law. Apparently this move has been adopted by the Sirisena Administration for a reason, that the persons holding such offices referred to above indeed is a hindrance to installing of the Rule of Law and Good Governance.
However, the said Transitional provision provides that every person 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 exercise, perform and discharge the powers, duties and functions of that office, under the same terms and conditions.
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 damage to the trust and confidence placed in the Judiciary by the people, any concerned citizen may ask whether the Judges holding the office in the Supreme Court should be allowed continue to hold office or whether all the judges too shall ceased to hold office, may be with an option to reappoint honorable judges.
Just before the Presidential election, people 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’s opinion in very subservient tone and the Court declared that the President Rajapaksa should seek election for re-election for a further term. It is important to note that the said opinion was declared on a private matter only affecting the President Rajapaksa, having denied the citizens any opportunity to express their views on the matter referred to the Court by the President. The concluding paragraph of the said opinion was recorded in the following words.
“Thus Your Excellency shall exercise your right and power vested in you by virtue of Article 31 (3A) (a) (i) of the Constitution and seek re-election for a further term and there exists no impediment for Your Excellency to exercise the right and powers accorded to you under the Constitution to offer yourself for a further term’.
In the light of the provisions of Article 105 of the Constitution, which states inter alia that the Administration of Justice ‘which protect, vindicate and enforce the rights of the people’ shall primarily be the Supreme Court and the Court of Appeal of the Republic of Sri Lanka, in my view, any right thinking citizen of this country is entitled to make a case that the performance 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 therefore 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 concerns that, unless the transitional provision in the 19th amendment bill (Section 54) is duly amended to include every Judge holding office in the Supreme Court who had ratified the said opinion expressed by the de facto Chief Justice Mohan Pieris, to seize to hold office, together with other judges appointed to the Superior Court System by the President Mahinda Rajapaksa, purely according to his whims and fancies, the 19th Amendment Bill in its current form is undesirable as it has failed to address the will and desire of the people of this country for a vibrant and independent judiciary.