“BAR HAS URGED PERSONS OF UNDOUBTED MERIT AND COMPETENCE FOR HIGHER JUDICIAL OFFICE”
The following are excerpts of the address by Bar Association of Sri Lanka (BASL) President Geoffrey Alagaratnam PC at the ceremonial farewell to the outgoing Chief Justice K. Sripavan:
“We are gathered to bid farewell upon the retirement of Your Lordship the Chief Justice from the Apex Court of our land. No doubt all good things must come to an end.
“Your Lordship’s appointment as Chief Justice came in the midst of tumultuous times. Our land had seen the back of an era and a Rule, which in every sense is best forgotten though it also reminds us of what should never be. Several events preceded your appointment beginning from the ouster of an incumbent Chief Justice to the installation of another whose memory has as it were been erased from the annals and records of our legal history. Since then the legal system and our land have been on a promised journey to restore and repair the Rule of Law and Democracy. Though over two years has lapsed since Your Lordship’s appointment, we have a very long way to go. There is work in progress, a path begun by your Lordship, but by no means been smooth and even. We still continue to grope for the light and live in hope.
We of the Bar have in our own way striven to ensure professionalism at a greater level though here too there is more to be done.
“As Chief Justice, Your Lordship has no doubt been accommodating and inclusive in asserting that a strong Bar and a healthy relationship and cooperation between the Bench and the Bar is critical if the legal system is to be effective and serve any useful purpose. We are conscious that a strong Bar is vital more so for the Independence of the Judiciary as the judiciary, in keeping with the dignity of a sacred office, does not and is not expected to have a voice of its own.
“We have set out on the path of constitutional amendments, to secure the independence of the judiciary as well as its integrity, competence and transparency and the independence of the profession. Many measures are envisaged and many mechanisms are being looked at.
“But we are reminded of the reality that constitutional or legal safeguards mean little unless the people within the structures and who work them do so with dignity and responsibility.
“Whilst we do accept that a strong Bar is important, it cannot be ignored that the Bar itself is an equal partner with the judiciary, a reality which has to be faced up to.
“Quite apart from that the contribution of the Bar to the independence of the judiciary cannot in any manner be underestimated. One need cite no examples to assert that the Bar has been at the forefront of defending the independence of the judiciary, sometimes even at risk to life and limb.
“Admittedly also the contribution of the Unofficial Bar and the Official Bar to the jurisprudence emanating from our Apex Courts is not a matter for doubt. We recently witnessed the passing away of Judge C.G. Weeramantry, who at the age of 42 joined the Apex Court, from the Unofficial Bar and also remembered him on February 20, 2017 for his outstanding contribution to our law and beyond, which is well known. Lest we forget we have had erudite members of the Bar, from Late Justice Mark Fernando, Late Dr. A.R.B. Amarasinghe, together with many others presently among us who adorned our courts. These individuals are among many others who meaningfully contributed in addition to many who also joined the judiciary from the Unofficial Bar at various levels of judicial office. Our memory serves us little if we are unable to recall the contribution of the Unofficial Bar to the judiciary at all levels. Members of the Unofficial Bar in particular, have in the past and in keeping with our accepted rich traditions joined the judiciary through a sense of challenge and while recognising the call of duty with an element of sacrifice and more often not due to the non-availability of pursuing any other calling in life.
“We cannot fail to remember that there has been a rich tradition of the judiciary comprising members of the career judiciary, and those of the Official and Unofficial Bars. The ratio commonly referred to is 4 : 2 : 1, of career judges and members of the Official and Unofficial Bars respectively. In other words the judiciary if it is to be healthy and rich in approach and jurisprudence needs a mix of persons drawn from all these organisations. The Judiciary cannot be under the monopoly or control of any one of these organisations.
“One of the areas related to the judiciary which the Bar has urged,apart from the mix of personnel in the judiciary, is the emphasis on persons of undoubted merit and competence occupying positions in higher judicial office, such as the High Court and higher courts. Towards this there has to be identified criteria to accommodate competence and merit through judicial audit or other mechanisms.
“Reliance on mere seniority for entitlement or promotions though perhaps a relevant criterion cannot and should not be a compelling basis. My Lords, maturity and wisdom we hope do come with age but it is not always necessarily so. Sometimes years only confer old age.
“The Bar has also consistently maintained that the composition of the Judicial Services Commission should be broad-based as an independent body to include several other stake holders such as the President of the Court of Appeal, the Attorney General, the President of the Bar Association and perhaps representatives of other responsible civil society organizations. Such is also towards greater transparency in the matter of handling of matters related to tenure, promotions and disciplinary control over the minor judiciary in acknowledgement of the fact that the Judiciary serves and should represent the interests of society and is not an exclusive secret enclave shrouded in mystery. The enactment of the recent Right to Information Act should buttress and emphasise the need for transparency and openness.
“This need for a broader composition is especially where under previous dispensations there were claims of victimization and discrimination of members of the minor judiciary due to the idiosyncrasies (to put it mildly) of some of Your Lordship’s predecessors.
“The call for a wider and broader body as representative of the JSC comes more to the forefront today in the hope that the JSC will have the mettle to withstand and to display greater independence, transparency and consistency in its positions and deliberations bereft of external and internal pressures.
“The matter of appointments to the judiciary, especially the High Court and above, are specified in the Constitution and fortuitously with greater clarity after the enactment of the 19th Amendment. The Constitutional Council plays its role for the apex courts while your Lordships in the Judicial Services Commission and the Attorney General, together with the President of the Republic, have been identified as the persons and the only persons conferred with the authority or powers to appoint High Court judges. Such constitutional role having been discharged by your Lordships, no other procedure, formalities or prerequisites apart from the implied suitability of a candidate can have constitutional relevance in this process of appointment.
“No doubt, an informed process of consultation and verification, with important stakeholders, will go a long way in ensuring the best persons are appointed. Yet, such informed consultation processes cannot be, I state here with responsibility, criteria for determining the validity of an appointment or for ex post facto justifying or varying the constitutional role undertaken and/or responsibilities of persons entrusted with the task of such appointments and which have been discharged. This duty cannot be abdicated.
Article 111(2) of the Constitution of our land is beyond ambiguity when it stipulates that: “Judges of the High Court shall
(a) On the recommendation of the Judicial Services Commission be appointed by the President by warrant under his hand and such recommendation shall be made after consultation with the Attorney General.
Thus it is the recommendation of your Lordships in the Judicial Services Commission, in consultation with the Attorney General that is material in the matter of such appointment. Any other informal consultation process, though laudable, whether defective or not, can have no bearing on the exercise of the obligation cast by Article 111(2) (a) of the Constitution on your Lordships and it goes without saying that when such recommendation is provided it has been done with due care and diligence.
It is most unfortunate that there should be confusion on such a fundamental position.
I trust the words of the Prince of Denmark, in Hamlet, would not be
relevant to us, when he said; “Oh Judgment thou art fled to brutish beasts and men have lost their reason”!
“The judiciary and the Bar have enjoyed a healthy relationship of cooperation. It is our earnest endeavour that the judiciary and Bar will continue to collaborate in the interests of justice.
“There is more to be done towards Judicial and professional independence and for its integrity and dignity. What the future holds we cannot predict. As I said there is still work in progress. You leave today and so would I. My prayers and hopes for the profession and the judiciary are greater professionalism, a sense of responsibility and dignity which is fundamental and critical if any system however perfect, is to work. I hope my prayers will be answered.
“After all is said and done My Lord, the Chief Justice, it must be said that you did exercise dignity, patience, transparency, humility and consistency together with the required authority when discharging your functions on the Bench, quite in contrast to the atmosphere that prevailed under a few dispensations before you assumed office as Chief Justice. We thank Your Lordship for this.”
But we are reminded of the reality that constitutional or legal safeguards mean little unless the people within the structures and who work them do so with dignity and responsibility After all is said and done My Lord, the Chief Justice, it must be said that you did exercise dignity, patience, transparency, humility and consistency together with the required authority when discharging your functions on the Bench Our memory serves us little if we are unable to recall the contribution of the Unofficial Bar to the judiciary at all levels