Centre for Policy Alternatives on 2 December, 2008

The Centre for Policy Alternatives Vs. Attorney General (SC FR 578/2008)

Categories: Public Interest Litigation submissions

The Centre for Policy Alternatives filed a fundamental rights petition in December 2008, over the appointment of the Attorney General by the President unilaterally, which is inconsistent with the provision under Article 41C of the Constitution. Article 41 states that “No person shall be appointed by the President to the office of Attorney General unless such appointment has been approved by the Council upon a recommendation made to the council by the President”. In addition there was a speculative report published in ‘The Morning Leader’, an English weekly newspaper, saying that Mr Mohan Pieris, President’s Counsel and legal advisor to the Defence Ministry, was tipped to be the new Attorney General. The appointment of Mr Pieris was a clear infringement of the Fundamental Rights of the petitioner and the Sri Lankan people, guaranteed under Article 12(1) of the Constitution. The Acting Attorney General, President’s Counsel Priyasath Dep, Deputy Solicitor General Eva Wanasundara, and the Additional Solicitor General Palitha Fernando, were all senior to Mr Pieris in the AG’s Department.

The matter was mentioned in court on 10th February 2009, 2nd March 2009, 9th March 2009 and 29th June 2009. Application was taken up on the 12thof November 2011.The case 578/2008 was taken up together with the case S.C F.R 297/2008 as the main issue to be discussed was similar.  The alleged act or omission committed by H.E the President, with regard to the non-appointment of the Constitutional Council under former Article 41A, was dealt with;

By the time of hearing, Article 41 to the constitution was amended and the Constitutional Council was no longer in existence. In that context the amendment to Article 41 was challenged in the Supreme Court under Article 121 to the Constitution and a five member Bench made a determination on the constitutionality of the said amendment and the bill has become law in terms of Article 80(1) of the Constitution. Accordingly in terms of Article 80 (3) of the constitution, the Supreme Court has no jurisdiction to consider the validity of the said law.