Now, various statements are appearing in both electronic and print media, criticizing the Judges in the Superior Courts for bias. I believe that this approach simply shows lack of foresight on the part of the new regime. In my view, without blaming any, MS RW regime should blame only them for lack of coherence.
New regime has already betrayed the people, as the 19th amendment expressly permitted the judges in the superior courts to hold office and continue to exercise and discharge the powers and functions after it become law.
In 1978 when President JR Jayewardene determined to install a ‘vibrant independent judiciary’ a specific provision was incorporated in the 1978 Constitution (Article 163), removing all judges in the Supreme Court immediately before the commencement of the Constitution.
The new regime knew that former President made several arbitrary appointments to the Superior Court System simply according to his whims and fancies and if the present regime had an iota of common sense they could have easily included all the judges in the Superior Court system in the Transitional Provision (Section 54) to the 19th Amendment that removed only the commissioners holding offices in various Commissions, after it became law, which however, expressly retained the judges in the Superior Courts.
In fact, when the 19th Amendment bill was published, by way of a Petition to the Supreme Court, I challenged the retention of these judges, on the basis that they had betrayed the Judicial power of the people they exercise on trust by responding to MR’s two questions referred to Court, which lack any ‘public importance’ whatsoever, as required by the Article 129 of the Constitution. In fact, Mohan Peiris absolutely denied the people of this country, any hearing on this matter, including the professional body of lawyers, the bar association and he considered that the Supreme Court was under the command of the executive president.
The very submissive language used by Mohan Pieris to express the opinion of the Supreme Court [10th November 2014] with all other judges agreeing, in the following words, informing President Rajapaksa, that he should seek re-election for a further term, is indeed a humiliation of the people’s judicial power.
“… 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…”
Therefore, in the written submission made, Court was pleaded to determine that the Transitional Provisions (Article 54) in the said Bill titled ‘Nineteenth Amendment to the Constitution’ is a blatant violation of the provisions of Article 3, 4, 10 and 105 of the Constitution as it condones and permits all Judges in the Supreme Court and the Court of Appeal to continue to hold such offices and continue to exercise, perform and discharge the powers, duties and functions of that office, under the same terms and conditions, forcing the people of Sri Lanka to accept and condone the Judges appointed to the office of the Judges in the Court of Appeal and Supreme Court, some of whom have acted in a manner in which the people lose their trust and confidence placed in the Superior Court System thereby undermining the people’s Judicial Power, and therefore the said Bill requires to be passed by not less than two-thirds of the whole number of members of Parliament and also approved by the People, at a Referendum by virtue of provisions of Article 83 of the Constitution.
However, I believe that the reader would understand that the content of this Petition had only an academic value as it was presented to the very same Court where those judges were occupying office.