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Tuesday, June 18, 2024

It is wrong for the executive to attempt to bypass the judiciary – Retired SC Judge

Application should have been made to Chief Justice Dr. Shirani Bandaranayake
The retired judges who had called upon President Mahinda Rajapaksa to appoint a special committee to probe Sarath N. Silva’s conduct as Chief Justice should have made an application to incumbent Chief Justice Dr. Shirani Bandaranayake instead of the executive, retired Supreme Court Judge Justice C. V. Wigneswaran said yesterday.

“The Chief Justice, as head of the Judicial Services Commission (JSC), could have appointed a committee to look into the matters raised by the judges as the discontinuance from service of the judges was by the JSC and not by an individual. My objection is to a committee appointed by His Excellency the President. If you become an instrument in the hands of the executive, where then is the independence of the judiciary?” Justice Wigneswaran queried.

Secretary to the President Lalith Weeratunga in a letter dated January 11, had requested Justice Wigneswaran to serve as chairman of a special committee to investigate allegations levelled by a group of retired judges of unfair treatment by Sarath N. Silva during his tenure as CJ.

K. Viknaraja, a retired Judge of the Court of Appeal and D. Dissanayake, former Secretary to the Ministry of Public Administration and Home Affairs had been invited to serve as members. Both Wigneswaran and Viknaraja declined to serve in the special committee on the basis that it would compromise the independence of the judiciary.

“In our reply we pointed out that this is a matter to be revisited entirely by the JSC or by recourse to the Supreme Court or Court of Appeal for judicial review. But instead bypassing the JSC and the higher judiciary is not good for the judiciary. It is wrong for the executive to attempt to bypass the judiciary,” Justice Wigneswaran stated.

“Our sympathies are with the judges but we cannot become instruments in the hands of the executive and thereby compromise the independence of the judiciary,” he emphasised, adding that the separation of powers should not be obscured.

He further said that during his tenure on the Supreme Court Bench he heard at least one application by an affected judge and that he had expressed the opinion that the complaint by the judge in question warranted inquiry by the Supreme Court.

“Where rules of natural justice have been violated or there is an appearance of bias, the JSC as the body carrying out the administrative functions relating to the judiciary is entitled to revisit the issues involved. Judicial review of the decisions made by the JSC is also an option available to the affected judges,” he noted. (Ayesha Zuhair)


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