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Monday, February 26, 2024

BASL President tells the parachuted SC judge Priyantha Jayawardena, this is how it should be, my Load!

Upul Jayasuriya
”Since 2000 you have been at the private Bar. You have been a visiting Lecture at the University of Moratuwa. You have been a consultant to Sri Lanka Insurance and several government institutes. You have also been appointed a Member on several Government statutory boards.
It is with this environment, that your Lordship has been appointed to the Supreme Court from the Private Bar.”
Upul Jayasuriya, the President of the Bar Association of Sri Lanka

Your Lordship Justice Priyantha Jayawardena,
Your Lordship had your early education at Nalanda Vidyalaya and Joined the legal Profession in 1987. You obtained a Masters Degree in 1992 from the University of Aberdeen. Whilst at Aberdeen you have given legal advice to the Public. You have enrolled yourself as a Solicitor in the United Kingdom in 1993 and in 1999,Your Lordhsip followed a short course at the National University of Singapore. You have served the Attorney General’s Department for nearly 7 years.
Whilst at the Attorney General’s Department you have also assisted the Ministries of Trade and Commerce and Foreign Affairs. You have been a tutor and an examiner at Sri Lanka Law College from 1997 -1999.
Since 2000 you have been at the private Bar. You have been a visiting Lecture at the University of Moratuwa. You have been a consultant to Sri Lanka Insurance and several government institutes. You have also been appointed a Member on several Government statutory boards.
It is with this environment, that your Lordship has been appointed to the Supreme Court from the Private Bar.
If we lose our struggle for Judicial Independence and professional integrity, if we cannot defend our right to practice our profession with dignity 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. These values are precious and priceless. Are we heading in the right direction?
As we all know the 17th amendment was to put this country in that right direction. In a rare unanimous vote Parliament set the record straight and appointed a constitutional council to select and recommend appointments to the executive to fill the vacancies to the Apex Courts. Tragically the 18th amendment reversed this trend. The Executive usurped the powers of the constitutional Council to make these appointments once again frustrating the long established traditions of the legal profession, judicial system and the hopes of a Nation.
The Constitutional provisions in India viz-a-viz the appointment of Judges to the Apex Court is the same. However the Supreme Court of India has by Judicial Interpretation propounded that the Executive Prerogative is not unfettered. Such appointments are made only on the recommendations of the Supreme Court. In USA too the President has the power to appoint Judges to the Supreme Court. But those nominees have to go before the sub Committee of the Senate and subjected to public scrutiny. The appointment of Judge Clarence Thomas is a good example.

The appointing process of the Judges was challenged in Sri Lanka in the case of Edward Silva Vs. Shiranee Bandaranayake where it was held that the “best practice of appointment to the Apex Court is in a consultation with the Chief Justice, the Attorney General and the Minister of Justice.”

If the Executive persists in acting in breach of these salutary principles it would be an invitation, persuasion or perversion to the mind of the Judges to cast aside their Judicial Independence and succumb to the invidious pressures of the Executive. Is that what is in the mind of the Executive? To break the back bone of Judicial Independence?
It was just a few months ago in this same August assembly that I wished a speedy recovery to His Lordship the President of the Court of Appeal Justice Sri Skandaraja; A great judge of our time. His life was cruelly snatched away from our midst – a broken hearted man at the time of his death.
We shall kneel before the altar of Almighty Justice, “Father, forgive them, they know not what they do. Their ill and will has no bounds or confines.” This voice must surely speak, to civil society. The deprivation of his due place for that humble simple man who sat behind the bench, was nothing but a travesty of Justice. Are we to blame the “system” and pass the buck? No ! The buck stops here.
The blame can not be attributed only to the Executive. The persons who do not fall within the time tested and respected criteria, cringe and scrounge brazenly at the feet of the Executive seeking such appointment whose lame excuse thereafter is that the Executive invitation can not be turned down; are equally guilty of the transgression against the society. We the Legal Profession and the civil Society and those of us entrusted with that public trust, are also to blame for it.
If the Executive exercises a prerogative that it never possessed, the legal profession and the Judiciary would both have to plead mea culpa! Mea Maxima Culpa!
Permit me to quote Edmund Burke an Irish Philospher, in the 17th Century;
“The only thing necessary for the triumph of evil is for good men to do nothing”

The Bar can not endorse any view contrary to these time honoured principles that are being flagrantly violated in recent times. The Bar cannot and shall not condone such sullied attempts to desecrate the Temple of Justice, detrimental to the hope and expectations of not only the Judiciary not only the official and the un -official Bar but the country at large. Exercise of such arbitrary powers and practices shall be opposed at any cost and continue to be opposed at any price until sanity prevails.

Be it the Career Judiciary; be it the Attorney General’s Department, be it the private Bar, if merit, seniority and eminence is to be ignored at the alter of political patronage in making appointments to the Apex Court we might bid farewell to the independence of the Judiciary, the Rule of Law, the Law books and Judicial Precedents.
learned ladies and gentlemen of the legal profession, the day is not too far when the ordinary people of this country seek their own means of social Justice or summary Justice, perhaps unfortunately the day has already dawned. Have we no eyes to see nor ears to hear nor tongue to speak about the break down of the rule of Law on the streets today?
I am further reminded of Burkes prophetic words, “danger of People crushed by law, have no hope for what is right but for might. If laws are their enemies, they will be enemies to laws; and those who have much to hope and nothing to lose, will always be dangerous”
The land like no other, the miracle of Asia! We have to ask the question ourselves as to where are we on the right path? The people in Sri Lanka believe that a well-informed public, Rule of Law and a vibrant Judiciary to be the core of our democracy.
Our forefathers fought the colonial rulers and won the democratic rights for our people. We inherited not only the franchise but an upright Civil Service protected from politicians, an efficient foreign service. An unshackled Police Service, a functional education system, and independent Judiciary.
What are we now left with?
It is our call today. Let us at least save the Judiciary from this monocracy and save the last existing pillar of democracy.
We shall not allow to engulf the bulwarks that we built and treasured since independence. Independent statutory bodies that were in place to provide protection and fortification have been muted and mummified over the years. Law enforcement authorities have fallen prey to the fearful invasions. The manner in which the Bar has been compelled to tolerate should by no means be interpreted as its weakness nor meekness .
The citizen’s respect for law, Esteem for the courts and for the judges who preside over them is the very essence of the Independence of the Judiciary. Confidence in these institutions and in the men who administer them is “sine quo non”, if this respect is to be maintained.
This essential co-relationship between “public respect” and the “rule of law” needs to be recognized to maintain the dignity and respect of Courts.
Arthur T. Vanderbilt (July 7, 1888 – June 16, 1957) Chief Justice of the New Jersey Supreme Court from 1948 to 1957, stated that ” It is imperative that judges-beholden to no man, independent and honest, and- equally important, believed by all men to be independent and honest to the cause ,”
If we do not have in place, procedures that are free from the Executive melancholy with the confidence that globally accepted principles, are observed in our Country too the resultant Justice would be colored and mutilated.
If merit, seniority and eminence is to be ignored with Judicial appointments being made on the basis of collateral agenda our hope for the miracle of Asia would be a distant dawn. Due consideration should be given to career Judicial Officers who have worked hard to administer justice over their entire careers and in suitable instances best ever and first rated appointments should be made from the Attorney General’s Department. If these salutary rules are breached, the outcome and its impact on the rule of law would be devastating.
May I repeat? 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. Permit me to quote Sir Winston Churchill, from what he observed:
“The principle of complete independence of the judiciary from the executive is the foundation of many things in our island life. . . . The judge has not only to do justice between man and man. He also has to do justice between the citizens and the State. “
Permit me to conclude my address with also a quotation from the words of wisdom of lord Buddha from the adhammika Suthra of the Angutthara Nikaya;

” Eva meva manusessu, yohothi setta sammatho
So Che adhammang charathi, pagewa ithara paja
Sabbang rattang dukkang sethi, raja wehotha dhammako”

So too, among human beings,
When the one considered the King
Behaves un righteously,
Other people do so as well.
The entire kingdom is dejected
If the king is unrighteous.”

– From the speech made by Mr. Upul Jayasuriya, the President of the Bar Association of Sri Lanka, at the Supreme Court to Welcome new judges of the Supreme Court.



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