The Constitutional Council must evaluate judicial nominees based on conduct and suitability, ensuring independence while maintaining public trust in the judiciary, which is not absolute if new adverse material emerges.

Headnote:(A) Constitution of the Democratic Socialist Republic of Sri Lanka - Articles 12(1), 41C, and 41E - Challenge against the majority decision of the Constitutional Council rejecting a judicial nomination - Petitioner, a citizen and attorney, alleges violation of fundamental rights due to arbitrary decision-making. (Paras 1, 2, 18, 19, 21)

(B) Judicial independence - The matter revolves around public confidence in the justice system and the criteria for judicial appointments. The court outlines that the Constitutional Council is tasked with evaluating judges' suitability based on conduct, even post-appointment approvals. (Paras 12, 19)

(C) Wednesbury unreasonableness - The court emphasizes that decisions of the Constitutional Council may be reviewed for reasonableness but cannot flout independence norms. (Paras 68-70, 163, 164)

(D) Decision-making process - The Petitioner is critiqued for blocking information that could have clarified allegations against the nominee judge. The practical implications of such actions on judicial processes are highlighted. (Paras 72-75, 124) (E) Final decision rules - The Constitutional Council is not purely bound by earlier approvals in judicial roles; circumstances affect each appointment contextually. (Paras 76-78)

Findings of Court:
The Court finds that the majority decision of the Constitutional Council was reasonable and justifiable given the circumstances surrounding the nominee's conduct.

Issues: The primary issue was whether the Constitutional Council acted arbitrarily in rejecting the nominee based on procedural criticisms and conduct.

Ratio Decidendi: The judgment asserts the right of the Constitutional Council to review conduct pertinent to appointments without violating judicial independence; the petitioner's claims were ultimately rejected as lacking merit.

Result: The petition is dismissed with costs imposed on the petitioner.

P. PADMAN SURASENA, J.

The Petitioner in his Petition has stated that he is a citizen of Sri Lanka and an Attorney-at-Law by profession. As can be seen from the caption, the 1^st Respondent is the Hon. Speaker of Parliament; the 2^nd Respondent is the Hon. Prime Minster; the 3^rd Respondent is the Hon. Leader of the Opposition in Parliament; the 4^th Respondent is a Member of Parliament, the Hon. Minister of Ports, Shipping and Aviation and; the 5^th and 6^th Respondents are both Members of Parliament. While the 1^st Respondent is ex-officio, the Chairman of the Constitutional Council, the 2^nd, 3^rd, 4^th, 5^th, and 6^th Respondents together with the 7^th, 8^th and 9^th Respondents are Members of the Constitutional Council. All of them have been made Respondents to this Petition in their capacities, respectively, as the Chairman and the Members of the Constitutional Council (hereinafter sometimes referred to as the Council). The 10^th Respondent is the Secretary General to the Constitutional Council and the 11^th Respondent is the Hon. Attorney General., These are the positions held by the persons mentioned in this paragraph at the time of the conclusion of the argument of this case; the Parliament was subsequently dissolved on 24-09-2024.

The 12^th Respondent, the 13^th Respondent and the 14^th Respondent have been added to the Caption, as the Court, by its Order dated 30-04-2024, had permitted the applications made by them seeking to intervene into this case. It is thereafter, that those three persons have been added to the caption as the 12^th, 13^th, and 14^th Respondents by way of the Amended Caption filed with the Motion, dated 28-06-2024. As I could see from the Petitions filed by the intervenient Petitioners, the primary concern of the 12^th, 13^th and 14^th Respondents has been to get the instant Petition dismissed and the Interim Order issued by the Court on 30-04-2024, dissolved.

At the outset, let me albeit briefly, set out the background of the issue relevant to this case. One of the Hon. Judges of this Court was to retire from service with effect from 16-11-2023. In order to fill the vacancy that was to be created by the said retirement, the Secretary to His Excellency the President (by order of His Excellency the President), had nominated the Hon. Justice who presently holds the office of the President of the Court of Appeal by his letter dated 25-10-2023. (The said nominated Justice will hereinafter sometimes be referred to as the Nominee Judge). His Excellency the President has made this nomination in terms of Article 41C (1) read with Article 107 (1) of the Constitution. The Hon. Speaker as well as the Secretary to His Excellency the President have produced this letter (markedA), as an annexure to the respective affidavits they have filed in these proceedings.

After several deliberations which will be adverted to in this Judgment shortly, the Constitutional Council by majority view had decided not to approve the proposal by His Excellency the President to appoint the Nominee Judge as a Judge of the Supreme Court. The Petitioner in the instant case challenges the aforesaid majority decision of the Constitutional Council. Upon this Petition being supported, this Court having considered the submissions, by its order dated 30-04-2024, had decided to grant Leave to Proceed in respect of the alleged violations of the Petitioner’s Fundamental Rights guaranteed under Article 12 (1) of the Constitution.

The Chairman and all the other members of the Constitutional Council, who have been made Respondents to this Petition, have filed their affidavits before this Court. At the outset, it would be relevant to note that these Respondents rely on more or less the same set of documents, although they have submitted those documents separately with their affidavits. The other Respondents (other than the Chairman and the members of the Constitutional Council) also did not dispute those documents. The case for the Petitioner as far as the said documents are

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