16 July, 2019

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President Can Appoint An Acting Chief Justice, No One Can Challenge It – Advice From Sarath Silva

By Colombo Telegraph

The President can appoint an acting Chief Justice says former Chief Justice Sarath N. Silva. Under the article 109 (1) the President has this option, therefore Chief Justice Shirani Bandaranayake should think  about it and take leave during the impeachment.

Silva and the President

Silva made above remarks with Sinhala weekly Irida Divaina today.

Article 109. (1) says;  If the Chief Justice or the President of the Court of Appeal is temporarily unable to exercise, perform and discharge the powers, duties and functions of his office, by reason of illness, absence from Sri Lanka or any other cause, the President shall appoint another Judge of the Supreme Court, or of the Court of Appeal, as the case may be, to act in the office of Chief Justice, or President of the Court of Appeal, respectively, during such period.

No one can challenge the clause “any other cause” Silva says.

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Latest comments

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    0

    My understanding is that in terms of Article 109 (1) or (2) the President has no authority to make appointment “suo motu”. The request for such appointment shall have come from the Judge himself stating that he is unable to do the job due to illness or out of the country. Term “any other cause” is open to interpretation. There also the Supreme Court has the sole authority of interpretation.

    If the drafters of the Constitution wanted to grant authority to the President to make appoint an acting appointment suo motu the Article should have commenced with ” In the opinion of the President…..”

    I am subject to correction.

    • 0
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      Agreed. Mr Salman, hope your leader, the Minister of Justice, will advice the President accordingly.

  • 0
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    Article 109 provides for the President to make ‘acting appointments’ to the SC or CA in certain situations. There is no provision to replace a judge willy nilly.

    An acting appointment may be made where a judge is ‘temporarily unable’ to act in his office. The inability to do so must arise by reason of illness, absence from Sri Lanka or ‘any other cause’. A person may be appointed to act for the particular judge ‘during such period’. The last three words make it clear the duration for which the appointment may be made.

    If, during the Court vacation, the President of the CA were to go abroad to visit his family, he does not become temporarily unable to perform his functions. Mere absence from abroad would not necessitate the appointment of a person to act in his place.

    If on the other hand a Judge of the CA were to go abroad for an operation, and there is a likelihood that he might be away for a while and be forced to miss court sittings, then he might become temporarily unable to exercise his functions as a judge. Naturally he would inform the President’s office of his intention to go abroad so that arrangements may be made for someone to be appointed to act in his place, if necessary. Another judge might go abroad to follow a short refresher course at a foreign university. A person may be appointed to act in his place while he is away. The words ‘during such period’, appearing in the Article, make it clear that the power of making acting appointments is not a free wheeling one.

    If the judge is available and is able to exercise his functions then a substitute cannot be appointed to act in his place under the guise of making an acting appointment. That would effectively amount to suspending the judge from office, which is effectively a disciplinary measure. The President does not have the power to exercise disciplinary control over the Court of Appeal or the Supreme Court, or for that matter even a Magistrate.

  • 0
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    “Birds of a feather flock together” is an English saying. Sri Lankan equivalent in the present context can be “Frauds of a breed get together”

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