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Judiciary: Quis custodies custodat?

4 July 2016 12:08 am - 1     - {{hitsCtrl.values.hits}}

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Following is an extract of the speech delivered by Geoffrey Alagaratnam, P.C., President of the Bar Association of Sri Lanka at the ceremonial sitting of Justice Prasanna Jayawardena as the Supreme Court Judge.


We of the unofficial Bar take great pride and satisfaction at your appointment as a judge of the apex court of our land. This is more so, as we have steadfastly adhered to the conviction that the jurisprudence emanating from your Lordships court can only be strengthened and enriched by a healthy mix of persons from members of the career judiciary and those of the official and unofficial Bars. We are conscious of the fact that whilst the independence and integrity of the Judiciary are critical for the preservation of the Rule of Law and democracy such will have little meaning unless persons of undoubted ability and competence adorn these sacred positions.
Above all, we are mindful-that what in the ultimate-matters is the public perception of the worthiness of our courts of law. Are they not only independent and free but above all competent and reliable in the cause of justice alone? 
The Judiciary of our land has seen dark days. We have witnessed challenges to it, both from within and without, some challenges subtle and some not so subtle. We appear to be seeing comparatively better times. Yet, we cannot be complacent, there’s more to be done both to consolidate and protect this great institution which commenced in 1801, and is said to be the third oldest Supreme Court in the world. No, doubt prior to that we had centuries of a pragmatic system of justice enriched by the thinking of the great culture and religions which are our proud inheritance.
There’s more to be done by way of much needed constitutional changes especially in the matter of appointment, security of tenure, disciplining and removal of judges. 

 

 

"The present provisions are far from adequate and may have been designed in more tranquil times or times, when the critical role of the judiciary was not accepted or appreciated by those in governance."

 


The present provisions are far from adequate and may have been designed in more tranquil times or times when the critical role of the judiciary was not accepted or appreciated by those in governance.
The Bar Association has made its recommendations related to these matters and will pursue further measures and further refinement of its position to achieve the objective of an independent and competent justice system with little doubt of its integrity. 
The Bar’s resolve stems from the firm belief that the bench and bar have an essential and interlinked complementary role to play if the ends of justice are to be served.
The judiciary has come in for scurrilous criticism in the social media in the recent past. The Bar is mindful that judges do not have a voice and that they are unable to defend themselves in public, as making public statements can endanger the dignity of the office or the judiciary as a whole. It is unfortunate that the media are being used to make scandalous allegations against judges instead of responsibly resorting to the available mechanisms to question the conduct of a judge. 
Judges are human and are definitely not above the law or privileged in the application of the law but to irresponsibly attack or ridicule individual judges apart from being a serious indictment on our State of civilization undermines and destroys the foundations of democracy and our perception of the justice system. 
The Bar does not, and cannot, be a party to such unbecoming attacks on the judiciary and will pursue all options available to overcome such irresponsible conduct.
We are also mindful that the system of justice itself should have effective internal controls to instil public confidence. Otherwise, we will be frequently confronted with the oft repeated refrain QUIS CUSTODIES CUSTODAT-or who will guard the guards? The Bar has always stood for a system of judicial audit to assess the performance of a judge for competence, ability, attitude and conduct rather than a judge’s career advancement being determined by mere seniority and the mere absence of bad conduct.

 

 

"Our roles take greater challenges not only in the cause of justice but in the long term goals of good governance and peace."

 

 


We of the Bar need to constantly review and focus on the quality of justice in which all of us are equal stakeholders. This does not merely mean conferences, brilliant speeches and preparation of reports. Constant engaging, constant review and constant nudging of all relevant stake holders are essential if we are to see improvement and advancement in our deliverables in the cause of justice.
Today we are at crossroads. We speak of YAHAPALANAYA, whatever that has come to mean.
Our instincts should tell us that it at least means being good however relative such a word might be. In this context our roles take greater challenges not only in the cause of justice but in the long term goals of good governance and peace.
Justice Prasanna Jayawardena just as much as we will miss your presence at the unofficial bar we are sure you will miss the life and camaraderie of the unofficial bar. Sometimes we wonder whether we of the official or unofficial bar and the judiciary build artificial and unnecessary barriers in our relationship with each other, compounded by the presence of what we now refer to as the ominous presence of the JSD. We are after all human beings and partners in a common journey, who should be closely associated in our quest for justice.
Whilst no doubt there has to be consciousness of the official or other roles we play, do we often transform ourselves into persons we are not, that makes us less human losing our authentic respective human qualities and backgrounds in the erroneous belief that each of us has to be someone entirely different from our real selves and losing ourselves in the process.
Sometimes one wonders whether a Judge has no other life or other interests which complement and lend colour to his official position.

 

 


We are aware of your Lordship’s interest in outdoor life, golfing, mountain trekking, sea bathing, arts and culture, among others and we hope that without being inundated by the burden of office you will continue with these delightful and complementary pursuits.
The comments made at the appointment of Lord Norman Birkett or in short form Norrie, as he was known to all, a respected King’s Counsel, when he took his seat beginning from 1941 as a judge of the High Court, in King’s Bench Court in the Royal Courts of Justice of England are pertinent.
At the end of his first week in court, Lord Birkett’s clerk wrote to his wife, Lady Birkett to tell her how the new Judge had got on. “Right up to standard”, which echoed that of the Bar generally.
“Indeed he is going to set a very high standard. We have courtesy, dignity and patience, and I hear there is to be a scramble to get before him. Having watched them now for forty three years and often wanted to get up and throw things at them, it is a great joy to be associated with the best appointment since Rufus Isaacs went up” Justice Prasanna Jayawardena, our wish is that these references to the life of Lord Norman Birkett and his thoughts will be of rich influence as you assume this office.
Justice Prasanna Jayawardena, you obtained an honours degree from the Faculty of Law of the University of Colombo. Your long experience in the Banking sector as well as positions held as Senior Manager and Director of many reputed private and public sector companies, your work as a research officer at MARGA, your several decades as a civil practitioner with emphasis on commercial litigation we are confident will help you in good stead in your role as a Judge.
Above all, you had a stint as the Deputy President of the Bar Association, at the helm of what I may refer to as a humongous band of lawyers with many objectives some not necessarily always professional, and held this position during a period of dark if not violent days which we endured and surmounted. These days, we hope, will never visit us again whether at the hands of the present actors or the spooks of the past. We hope all of this will be of immense assistance in the contribution you are called upon to make as a judge of the Supreme Court.

While extending the support of the Bar we wish you well.

  Comments - 1

  • dharmapala Tuesday, 05 July 2016 08:27 PM

    judical is fine but most of the politics are in crime and corporation are free from cases president and prime minister talking but doing nothing


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