Some weeks ago, when a ceremonial sitting was held to welcome the new Supreme Court judge Rohini Perera-Marasinghe, the BASL President was not invited. This, lawyers say, is a breach of time-honoured traditions because normally it is the BASL that welcomes a new judge to the superior courts and sends out the invitations. But in the aftermath of the crisis of the independence of the judiciary, it appears that this tradition has been overturned by the Supreme Court but the Court of Appeal stuck to the tradition and invited the BASL President Upul Jayasuriya and requested him to ceremonially welcome the new judge Malini Gunatatne. Excerpts from Mr. Jayasuriya’s speech.
It is my duty as the elected head of the un-official Bar with a legal fraternity of over 15,000 attorneys spread around the country, to have the privilege of welcoming your Ladyship. I am joined by not only those who are present here today but the entire membership of the Bar Association of Sri Lanka.
I rise today in this august assembly with a mandate from the entire legal fraternity to warmly welcome your Ladyship, Justice Malini Gunaratna, as you take your rightful place in this Honourable Court. The entire Bar wishes you well (confidence and strength) in the onerous tasks that will be taken over by your Ladyship. This day will be a memorable day for your Ladyship since Your Ladyship has the distinction of a traditional welcome by the Bar.
It is the dream of every judge to be able to ascend the apex court in the country having discharged his or her duties as a fair, balanced, strong and an 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 the 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 and standing. Every night, as we study our briefs and every working hour we spend in court or every night you burn the midnight oil with your pen on paper in endeavouring to hold the scales of justice fairly, and this is our preoccupation.
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.
In the backdrop of the abrogation, by the 18th Amendment, of the historic and salutary 17th Amendment that was assented to by the entire 225 members of Parliament which created the constitutional council, Your Ladyship’s appointment to this Honourable Court is particularly welcome.
An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. Judges should be subject to suspension or removal only for reasons of incapacity or misbehavior that clearly renders them unfit to discharge their duties.
It is necessary that 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 is 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 that they enjoy as sitting judges until their death, The unfortunate practice of conferring privileged positions on judicial officers after retirement at the discretion of the executive should cease.
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. 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 appears 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 penaliszed, have been arbitrarily punished by politically influential persons.
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 that there be any abuse or misuse of power. Be it the common man, the legislator or the legislature, judicial activism should be applied with vigor and without favour. This solemn function cannot be discharged without the commitment of the legal profession.
The judiciary stands between the citizen and the state as a bulwark against the executive excesses of misuse or abuse of power or the transgression of constitutional or legal limitation by the executive as well as the legislature.
It is, therefore, absolutely essential that the judiciary must be totally free from executive pressure or influence and must be fiercely independent. Independence, of course, is a quality which must come from within the heart. It must be a quality which is part of the very fabric of the judge’s existence; but even so, judges must not be exposed to executive threats, inducements and must remain independent and fearless.
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 ultimate concern of all citizens to have regard and respect for the rule of law and it is the paramount duty of both the judiciary and the bar to guard and protect the rule of law and, as the elected head of the bar, I can state with all conviction that the bar will discharge this duty and that we are confident and trust that the judiciary will do so too.