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Tuesday, April 16, 2024

Sri Lanka: Opposition SJB adopts far reaching legal reforms including Independent Public Prosecutor and Defender

(The Island) SJB and Opposition Leader Sajith Premadasa, MP, has accepted a set of far-reaching and comprehensive legal reforms proposed by SJB Lawyers’ Association. Speaking at a well-attended event in Colombo this week, Premadasa, having received the proposals, vowed that President Ranil Wickremesinghe’s efforts to keep the Constitutional Council under his thumb would be thwarted.

MP Premadasa said that as a member of the CC he would along with other members stand up against Wickremesinghe’s agenda to put off the scheduled presidential poll in the guise of doing away with the executive presidency through constitutional means.

One of the most important proposals was to establish a truly independent Public Prosecutor (independent of the Attorney General) to facilitate the prosecution of crimes that take place within such areas to be dealt with expeditiously and in an effective manner. Also consider optimal decentralization of the prosecution function. There were altogether 116 proposals.

The following are some of the key proposals: 1) President to be required to engage in a consultative process with stakeholders prior to making judicial appointments. Views emerging through such consultative process to be conveyed to the Constitutional Council along with the name/s nominated for the approval.

2) There shall be a Constitutional Court. Retirement age of the judges shall be higher than the Judges of the Supreme Court. All appointments to the Constitutional Court, Supreme Court and Court of Appeal the Members of the Judicial Service Commission other than the Chairman shall be made by the President on the recommendation of the Constitutional Council.

3) In the discharge of its function relating to the appointment of the President and Judges of the Constitutional Court, Judges of the Supreme Court and the President and Judges of the Court of Appeal, the Council shall obtain the views of the Chief Justice and the two senior-most Judges of the Supreme Court.

4) A more transparent criterion will be proposed for judicial appointments. Including a collegiate system to recommend, based on transparent criteria.

Selection of such High Court Judges should be by a mixed and eminent panel consisting of most senior President’s Counsel, Attorney General, President BASL, President Court of Appeal and presided by the Chief Justice. Under normal circumstances the age limits will be as stipulated.

5) Allegations of misbehavior or incapacity contained in a resolution in the House of Representatives for the presentation of an address for the removal of a Judge of the Constitutional Court, Supreme Court or Court of Appeal shall be inquired into by a panel consisting of three retired Judges of the Constitutional Court or the Supreme Court. Such a panel shall be appointed by the Speaker on the recommendation of the Constitutional Council.

Parliament shall by law provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such Judge to appear and to be heard in person or by a representative. Where the panel determines that the allegations of misbehavior or incapacity contained in the resolution are not proved, the resolution shall lapse.

6) There shall be a Code of Conduct applicable to Judges of the Constitutional Court, Supreme Court and Court of Appeal. Allegations of serious infractions of the Code of Conduct with negative implications for the Judiciary’s independence, integrity and public trust shall be inquired into by a panel consisting of three retired Judges of the Constitutional Court or the Supreme Court appointed by the President on the recommendation of the Constitutional Council. The panel shall submit its report to the President and the Constitutional Council for appropriate action.

7) All judges of the Court of Appeal and the Supreme Court shall be entitled to enjoy the same salary, same facilities and benefits until death, maintaining total independence of the Judiciary, economically and otherwise. However they shall not hold other offices except that are prescribed by Law.

8) The Court of Appeal to be decentralized (to sit like the Courts of Assize) to take the Appeal Court closer to the people. Senior President’s counsel and President BASL to be consulted in appointing temporary judges

9) The Court of Appeal shall conduct its sittings in each Province. It shall have an original fundamental rights and language rights jurisdiction. An appeal shall lie to the Supreme Court with leave from the Court of Appeal or special leave from the Supreme Court. The civil appellate jurisdiction of the Provincial High Courts shall be transferred to the Court of Appeal sitting in the provinces.

10) In the case of special courts such selected persons should be over the age of 62 years and below the age of 75 years. They should be selected from among retired High Court Judges with a proven track record. Only thereafter the President shall recommend such names to the Constitutional Council.

11) All judicial promotions shall be considered on the basis of completion of the ongoing cases and the delivery of orders and judgements and number of such cases sustained in the appellate court.

12) All judgments of court shall be complied immediately. In instances wherein frivolous appeals have been lodged by the state and damages along with legal interest has accumulated unconscionably, such officers shall be held personally liable for such enhanced damages.

13) A law relating to contempt of courts on the lines of Indian statute shall be passed.

14) The Office of the Attorney-General shall be an independent entity. The Attorney-General shall be the Chief Legal Officer of the Republic and shall uphold and safeguard the sovereignty of the People. It should be ensured that the Attorney General will hold the scales of justice evenly maintaining the highest traditions of the office of Attorney General without being a mouthpiece of the regime in power, in particular issuing certificates on draft legislation.

15) An independent Office of Public Prosecutor shall be set up by law.

16) An independent Office of the Public Defender shall be set up by law.

17) The Attorney-General, Chief Public Prosecutor and Public Defender shall be appointed by the President on the recommendation of the Constitutional Council.

18) Consider the feasibility and scope to recruit external lawyers to the AG’s Department at all levels based on objective criteria calculated to promote better competence and integrity. However, those internal candidates would be given due consideration.

19) Any appointee to the post of Attorney General or the Solicitor General shall not hold office in excess of three years.

20) Delays in serving indictments should be curtailed. All indictments should be filed within three months or the most 6 months of the alleged crime. In order to complete the backlog private Lawyers should be hired under the supervision of the AG. Allocation and coordination of such cases will be conducted by a decentralised public prosecutor.

21) In order to curtail delays in trials no postponement shall be granted on the basis that the Lawyer is in another court as is the practice in Indian Courts. This will also give more opportunities to younger Lawyers.

22) Consider timeframes for expeditious conclusion, such as if a criminal trial isn’t completed within a given time span, day to day trials should be held. The right to bail to be enhanced where prosecution isn’t commenced within a determinate time frame.

The Island

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