PBJ judgement:

President free of appoint respondent as Treasury Secretary - Court

Sarath Malalasekera and Wasantha Ramanayake

The Supreme Court decided that the President, being the appointing authority in terms of Article 52 of the Constitution, would be free to consider appointing the eighth Respondent-Petitioner to the Post of Secretary to the Ministry of Finance, notwithstanding the undertaking given to Court by the Eighth Respondent-petitioner.

The Supreme Court Bench comprised of Chief Justice Asoka de Silva, Justice Shirani Bandaranayake, Justice Shiranee Tilakawardene, Justice Saleem Marsoof PC, Justice Jagath Balapatabendi, Justice, K. Sri Pavan and Justice P. A. Ratnayake.

However, this Court holds that in terms of Article 132 (1) (iii) where the Chief Justice is of the opinion that the matter raised is of general and public importance, he may constitute a Bench of five or more Judges to hear the matter.

Accordingly, the Court over-rules the preliminary objections and permits President’s Counsel Faiz Mustapha to make his submissions.

Court having considered the submissions of Counsel and Nihal Sri Amarasekera who appeared in person, refuses the relief sought in paragraphs (a) and (b) of the prayer to the amended petition dated July 31, 2009. However, the Court is inclined to grant other relief under paragraph (c) of the prayer to the said amended Petition.

Accordingly, by majority decision (Justice Shiranee Tilakawardene dissenting) the Court decides that the President, being the appointing authority in terms of Article 52 of the Constitution, would be free to consider appointing the eighth Respondent-petitioner to the post of Secretary to the Ministry of Finance, notwithstanding the undertaking given to court by the eighth Respondent-Petitioner.

The Supreme Court Bench reserved the reasons for the decisions to be given in due course.

At the outset Counsel M. A. Sumanthiran submits to Court that the Petitioner -eighth respondent in this case seeks to vacate the order dated October 10, 2008. In that context, this application should be heard by the same Bench or as far as possible the same Bench, that made the earlier order. Only if that Bench is of that opinion can the Chief Justice constitute a fuller Bench for clarification or for continuation.

Attorneys M. A. Sumanthiran with Viran Corea appeared for the petitioner.

President’s Counsel Faiz Mustapha with Anura Meddegoda and Lakdini Perera appeared for the eighth respondent-petitioner.

Attorney General President’s Counsel Mohan Pieris with Additional Solicitor General J. Wijetilleke, Deputy Solicitor General Sanjaya Rajaratnam and Senior State Counsel Nerin Pulle appeared as amicus.

Nihal Sri Amarasekera appeared in person.