An excerpt from the speech delivered by the President of the Bar Association of Sri Lanka (BASL) Upul Jayasuriya at the Convocation where he was inducted for the year 2014-2015.
Our new order must therefore be based on constitutional democracy in which regardless of race, gender, religion or political opinion, the law will provide for the equal protection of all. It will be an order in which the government will be bound by a higher body of rules – Nelson Mandela
I shall quote the Former Chief Justice of India, His Lordship Chief Justice Altamas Kabir, when he addressed the Supreme Court a few days ago. I quote: “It is the duty of the legal fraternity upon its corporate social responsibility to give something back to society in return for the benefits we have received. Issues of public interest should be foremost in the mind of a practitioner of law.”
We have seen sad incidents in Weliveriya, Slave Island, Wanathamulla, Negombo, Chilaw, Kankesanthurai and Mannar. We have intervened in all most all these instances.
When will that day with such lawlessness be put to an end in our society?
Peaceful demonstrations are banned, violating the Fundamental rights of the people, the right of association and freedom of expression on the basis that it affects ‘the free flow of street traffic’. When the same offence is committed by the privileged, bringing the entire city traffic to a grinding halt for ‘night races’ no such orders are sought or imposed. Mega projects are awarded through the back door costing people thousands of millions of dollars at varying rates that differ from one road to another with a new nomenclature called ‘unsolicited offers’ just by one party.
There is only one place that has to stand firm as a bulwark for the protection of the rights of the people - that is the Judiciary.
The appointing process of judges that was once vested with the Constitutional Council is now vested with a single individual whose criteria are not suitable;
qualifications or seniority but mere arbitrary practice that lacks transparency, in total violation of the Latimer House Principles to which we are signatories. Fundamental rights of the working class such as the right to strike, the right to protest and the right to express their views through peaceful protests which are guaranteed by local laws including the Constitution and international covenants are being stifled by way of restraining orders obtained from courts.
Hon. Attorney General - we are aware that even the officers of your department are under severe pressure.
Those who are in the highest echelons’ of governance are blatantly violating the law in the full glare of public scrutiny. If this situation was permitted it would create a dangerous trend where the privileged persons would have no law to obey.
The Bar and the Bench can be referred to as the two sides of the coin which are inseparable as it cannot exist without the other. To achieve the independence of the Judiciary the independence and the strength of the Bar is imperative. If the Bar takes a partisan view and a lukewarm attitude on matters concerning the Bench, the future of the Judiciary is at stake.
Let me quote from the iconic lawyer turned statesman, Nelson Mandela, “Our new order must therefore be based on constitutional democracy in which regardless of race, gender, religion or political opinion, the law will provide for the equal protection of all. It will be an order in which the government will be bound by a higher body of rules - an empire of laws - and will not govern at its discretion. We reject an empire of man; we require the rule of law, as opposed to what Aristotle called the “passion of men”
During the year under review a strong and an apolitical judge parted from our midst. President of the Court of Appeal as he was then, Justice Sri Skandaraja’s name will be inscribed in gold as a judge who sacrificed his decades of professional career for what he thought was right. The Judgment he wrote presiding over a divisional Bench quashing the Parliamentary Select Committee proceedings on the 43rd Chief Justice made him pay the Supreme Sacrifice which cost him, his family and the loved ones dearly.
The 43rd Chief Justice herself had to pay the price and sacrifice more than a decade-and-half-a-of her judicial career, for standing up to her integrity. To date, she is being hounded out. Permit me to quote from Mahatma Gandhi, “The weak can never forgive. Forgiveness is the attribute of the strong.”
We the Bar shall firmly be committed to the causes that are paramount to our integrity and the independence we stand for, at the Bar with no change of course.
When we recount the circumstances, time, and personages of this tragic background and the guiltless life of Justice Sri Skandarajah, we find that the wrongs of headless anarchic attitudes and the ruin of a nation are on the cards and on the heads of the people of this country.
The deprivation of that humble, simple man who sat behind the Bench has robbed the Sri Lankan nation of a judge whom we could call a judge in the literal sense of the word.
Our cry for Justice is not only for those who come seeking justice but judges themselves who cannot speak for themselves. It is time that transparent procedures are put in place and independent criteria based on merit be adopted and turn our back to those who take positions that do not legitimately belong to them.It is imperative that remedial action be taken and that the Executive acts sensibly in future, or else the Judiciary and the nation run the risk of losing more judges in the mould of Justice Sriskandarajah, a loss which cannot be rectified or compensated, and a loss with profound consequences. We shall reject these interferences and manipulations that destroy the Judicial Independence beyond redemption.
An independent, impartial, honest and competent judiciary is an essential prerequisite and is integral to upholding the rule of law, enhancing public confidence in the Judiciary. The function of the Judiciary is to interpret and apply the national Constitution and legislation consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each country.
To secure these aims: Latimer House Principles - a product of the Commonwealth, adopted in 2006 have laid the following principles which are flouted in Sri Lanka with venom.
Let me quote these principles:
“(a) Judicial appointments should be made on the basis of clearly defined criteria and by a publicly declared process. The process should ensure equality of opportunity for all who are eligible for judicial office; appointment on merit; and that appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination.
(b) Arrangements for appropriate security of tenure and protection of levels of remuneration must be in place.
(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.”
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 that they enjoy as sitting judges until their death. The obnoxious practice of conferring privileged positions on judicial officers after retirement at the discretion of the Executive should cease.
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.
The integrity and independence of legal systems and judicial institutions and the very law itself cannot be of concern to only lawyers and judges in Sri Lanka. Rather, it is of paramount concern to all citizens to have regard and respect for rule of law and it is the paramount duty of both the Judiciary and the Bar to guard and protect this cardinal principal and, as the head of the Bar, I can state with all conviction that the Bar will discharge this duty. We are confident and trust that the Judiciary will do so too.