The nomination was believed to be in jeopardy when the Council sought the views of Chief Justice Nalin Perera on Kodagoda’s suitability to serve as the President of the Court. The Chief Justice declined to support Kodagoda’s nomination, instead proposing to the Council that Court of Appeal Judge Shiran Gooneratne be appointed as President of that Court.
Gooneratne, as a High Court Judge, authored a dissenting judgment acquitting former MP Duminda Silva from culpability for the murder of Bharatha Lakshman Premachandra and several others in 2010. Gooneratne’s judgment was last year shot down by a five-judge bench of the Supreme Court, which ruled unanimously to uphold the death sentence against Silva. Gooneratne has since been promoted to the Court of Appeal.
The Constitutional Council assembled yesterday in Parliament to discuss Kodagoda’s candidacy and the response forwarded by the Chief Justice. The meeting was chaired by Speaker Karu Jayasuriya and attended by all its members including Prime Minister Ranil Wickremesinghe, Opposition Leader Mahinda Rajapaksa, Justice Minister Thalatha Athukorala and the President’s nominee, MP Mahinda Samarasinghe.
Council members noted that the Chief Justice had not provided any specific and articulable grounds to decline Kodagoda’s nomination. The Constitution rests the power of nominating judges exclusively with the President, with the approval of the Constitutional Council being necessary to confirm an appointment.
The Council is required to obtain the views of the Chief Justice in the discharge of these duties.The Council noted also that there is no constitutional provision permitting the body to consider a judicial nominee proposed by anyone other than the President, including nominations made by the Chief Justice. Therefore the Council decided to differ from the view of the Chief Justice and approve the nomination of Kodagoda. The unanimous decision was supported by Members of all political parties and civil society representatives on the Council.
The episode marks the first ever time that the Constitutional Council has deviated from the views of the Chief Justice on a judicial appointee. Previously the Chief Justice declined to support the nomination of Judge Deepali Wijesundera to head the Court of Appeal, citing a lack of administrative experience.The President is expected to soon summon Kodagoda to the Presidential Secretariat to take oaths as President of the Court of Appeal.
Kodagoda currently serves as Deputy Head of the Criminal Division of the Attorney-General’s Department, and oversees all investigations and prosecutions involving the Criminal Investigation Department (CID). These include investigations involving the Avant Garde floating armoury, abduction of Keith Noyahr, murder of Lasantha Wickrematunge and disappearance of Prageeth Ekneligoda.
He has also represented the state in several Fundamental Rights applications, including those filed by former Defence Secretary Gotabaya Rajapaksa and former Sri Lankan Ambassador to Russia Udayanga Weeratunga.
The Additional Solicitor General is perhaps best known for his pivotal role in assisting the Presidential Commission of Inquiry into the Treasury Bond Scam, and from his supervision of the resulting criminal investigations conducted by the CID. Kodagoda also oversees efforts to extradite former Central Bank Governor Arjuna Mahendran from Singapore and Weeratunga from the United Arab Emirates.
ASG Yasantha Kodagoda is a graduate of Sri Lanka Law College and University College London. He joined the Attorney-General’s Department in 1989. His 30 years of service as a prosecutor has included stints supervising several key units of the Department, including the Missing Persons Unit and Child Abuse Perpetrators Prosecution Unit.
For 20 years, Kodagoda served as a member of Sri Lankan Government delegations to the United Nations Human Rights Commission and Human Rights Council. Prior to the Bond Commission, he has served as Attorney-General’s counsel before several Commissions of Inquiry including the Commissions to Investigate the Batalanda torture chambers, to probe the assassination of actor Vijaya Kumaratunga and the Udalagama Commission.
