The following is an excerpt from the speech delivered by Upul Jayasuriya, President of the Bar Association of Sri Lanka at the ceremonial sitting to welcome the newly appointed Court of Appeal Judge, Justice Malini Gunaratne
By Upul Jayasuriya
It is the dream of every judge to be able to ascend to the apex court in the Country having discharged his or her duties as a fair, balanced, strong and impartial judge with the acceptance of the bar. In general, though with a few exceptions, judges and lawyers do not compromise and are not willing to trade their conscience and dignity, as it is precious and priceless.
Let me quote Martin Luther King, “Human progress is neither automatic nor inevitable... Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals”.
In each day of our lives, in our professional work, we try to guarantee this right of a fair trial to our clients, whatever their social or economic status or standing. Every night, as we study our briefs, every working hour we spend in court or every night we burn the midnight oil with our pens on paper in endeavoring to hold the scales of justice fairly and this is our preoccupation.
" Judicial appointments should be made on the basis of merit and seniority. Judicial appointments should not be made on the basis of political considerations. Due consideration should be given to career judicial officers who have worked hard to administer justice over their entire careers "
If we lose our struggle for judicial independence and professional integrity, if we cannot defend our right to practise our profession with dignity and independence whilst ensuring the safety of the Judiciary on the basis of the highest principles on which the legal profession is founded, then every person who seeks justice will be at risk.
An independent, impartial, honest and competent Judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice.
To secure this, Latimer House principles were adopted in Buckinghamshire, United Kingdom in 1998, inspired by the Law Ministers of the Commonwealth in 1996. This is the work laboured by the Commonwealth Associations of lawyers, judges and educationists. It took 10 years to have them assented by the Commonwealth in 2008.
Theses principles have laid down that;
(a) Judicial appointments should be made on the basis of clearly defined criteria and a publicly declared process. The process should ensure equality of opportunity for all eligible for judicial office;
(b) Arrangements for appropriate security of tenure and protection of levels of
(c) Adequate resources should be provided for the judicial system to operate effectively without any undue constraints which may hamper the independence sought;
(d) Interaction, if any, between the Executive and the Judiciary should not compromise judicial independence.
Judges should be subject to suspension or removal only for reasons of incapacity or misbehaviour that clearly renders them unfit to discharge their duties.
We should have the confidence and the legitimate expectation that these principles, that have been accepted globally, will be observed in our Country too.
In this regard, judicial appointments should be made on the basis of merit and seniority. Judicial appointments should not be made on the basis of political considerations. Due consideration should be given to career judicial officers who have worked hard to administer justice over their entire careers. If these salutary rules are breached, the outcome and its impact on the rule of law would be devastating.
There should be a set of transparent criteria and a due process for the appointment and promotion of Appellate Judges which are not vested solely in the hands of one appointing authority. If this is not implemented, public confidence in the independence and impartiality of the Judiciary would then be irreparably impaired.
Judges must be given security of tenure, there must be independent procedures put in place for their appointment and removal.
Judges must be financially secure. At least the judges of the superior courts, who are relatively few in number, should continue to receive all the benefits they enjoy as sitting judges until their deaths; the unfortunate practice of conferring privileged positions on judicial officers after retirement at the discretion of the Executive should cease.
" Judges should be subject to suspension or removal only for reasons of incapacity or misbehaviour that clearly renders them unfit to discharge their duties. We should have the confidence and the legitimate expectation that these principles, that have been accepted globally, would be observed in our Country too "
As a profession, we shall not accept any compromise in the integrity of the Judiciary. It is our duty to foster and maintain the public trust in the hallowed institution that was nurtured over centuries, with dedication and sacrifice.
Those institutions which are more directly linked to law enforcement and the administration of justice should not be placed in jeopardy either. There are also other statutory bodies vested with quasi judicial functions that should be protected from facing problems due to politicisation and the loss of professional independence.
We have seen frequent instances where the principle of equality before law appears to have been undermined, especially in cases involving influential persons. Public cynicism is widespread in regard to the manner in which the principle of equality has been ignored. There appear to have been several instances of apparent impunity for politically influential persons who openly violate the law. Others who may under normal circumstances not be penalised have been arbitrarily punished by politically influential persons.
" If we cannot defend our right to practise our profession with dignity and independence whilst ensuring the safety of the Judiciary on the basis of the highest principles on which the legal profession is founded, then every person who seeks justice will be at risk "
It seems the rule rather than the exception that the law that applies to people with right connections can be different to the law that applies to the powerless and the people with divergent views. It is with some satisfaction that we see that, in the very recent past, there have been several instances of persons, who may have thought they were immune from legal consequences, being now brought before the Courts. We hope this trend continues.
It is the responsibility of the Judiciary and the legal fraternity, to collectively strive to remedy this crisis of confidence, which has eroded in immeasurable manner.
This “state of lawlessness’ has to be curbed and controlled by the judiciary. This is the essence of the rule of law, and it goes to the roots of constitutionalism. It is the solemn function of the Judiciary to ensure that no constitutional or legal functionary or authority acts beyond the limits of its power nor should there be any abuse or misuse of power. Be it the common man, the legislator or the legislature, judicial activism should be applied with vigour and without favour. This solemn function cannot be discharged with out the commitment of the legal profession.