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Tuesday, March 5, 2024

“The Judiciary Stands as a Bulwark Against Executive Excesses” – By Upul Jayasuriya

Sadly so we are in an era experiencing mixed priorities where in democratic values or Rule of Law draws less attention and importance. Where has it all begun? Values we all treasured and embraced, generation after generation have dwindled in no uncertain terms. The political leadership is mainly responsible for this [situation]. It is a rare commodity even amongst the rulers. If those who set the rules have no respect for them who guards the guards?

Who guards the guards?

It matters not, if a government minister, politician or even the prime minister demand prosecution be started.
Political aims, petty vindictiveness or vendettas should have no role to play. This process helps uphold the rule of law. Lord Simon, one- time Attorney General of the United Kingdom said:

“The attorney general should absolutely decline to receive orders from the prime minister or cabinet or anybody else”.
He also further said: “While that may not do much for my political career, that is an important protection for the rule of law in the United Kingdom and one that I will uphold and staunchly defend.”

Within the framework of the rule of law, there cannot exist situations which oppress freedom of association, expressions, rights of minorities, condone wrongs over the right, and support the views of political masters and their dictates.

Such a legal system will allow discrimination. Absence of protection for human rights, courts and legal system may deprive fellow citizens of their freedom, property and ultimately their very existence. In such circumstances, the claim that the rule of law is observed is but a mockery of the truth.

Public Service scene

Upul JayasuriyaPublic Service and its institutions are endangered by the appointing process of its key personalities in the adaptation of criteria in the absence of merit and eminency. Be it in the education sector or the higher education sector, the absence of objective standards and the application of the subjective approach has resulted in the qualitative degeneration of the hallowed institutions and education itself. This is a process that commenced nearly two decades ago under the guise of ‘Political victimisation” that has now engulfed the entire system by victimising and jeopardising the entire machination beyond redemption. This melanoma that commenced from the appointing process of teachers, principals and directors of education has now spread not only to university administration but also to university admissions that are now regulated by chits issued by Members of Parliament.

Arrests are carried out at the whim and fancy of persons in authority with the blessings of the executive with no sensitivity to legal principles and consequence.In the same way arrests are not carried out whether it’s the robbery of state coffers, elephants or any thing between a pin to a plane depending on how close they are to the powers that be.

Foreign Service today

In a global village foreign direct investment is an element that is most essential to economic growth that is dependent on skillfully managed foreign relations. Time- tested criteria based on merit and eminency of the persons selected to represent missions have all being derailed with the appointment of close relatives and friends of the executive who are motivated by fulfilling personal agendas which are far removed from national agendas. This has given rise to employ PR firms at a colossal cost to the national coffers upon the decision of a Member of Parliament with no selection criteria. Instead, such persons with no decision making authority act in conjunction with the Central Bank and who still has no function to perform under the Finance Act. Time- tested criteria is of little relevance. This pathetic situation has pushed the nation into a deeper crisis with no proper advice on the course of action to be adopted with no evaluation of the UN resolution on a probe that has commenced and will progress unabated.

Law enforcement authorities

The Election Commission, Bribery Commission, Public Service Commission and the Police Service are governed by rule of the thumb considerations with appointments being made with total arbitrariness. They are burdened with having to pay homage to the appointing authority in the pursuit of perks and luxuries of office particularly with the removal of the salutary provisions of the 17th Amendment arbitrarily removed by the 18th Amendment. The Election Commissioner was heard to say that he has no powers after the abrogation of the 17th Amendment to enforce free and fair elections. An order of the Supreme Court that was made by a divisional bench of five judges directing that fair coverage be given to all parties in the fray was flagrantly flouted by state media in the year 2010 during the Presidential Election. Papers that were filed to deal with the violators of court orders for contempt were totally ignored by court and not even listed for support.

Breach of public trust

Corruption is conventionally defined as the use of power in breach of public trust for private gain. Forms of corruption vary, but include bribery, extortion, improper influence by public or private interests, and misappropriation of public funds or other resources.

It is troubling to see some countries publicly proclaim adherence to the rule of law and human rights, whilst at the same time eroding those very same standards behind the cover of legislative processes – providing a thin veneer of respectability and apparent conformity with legal norms.

Politically influential persons are not charged by the Bribery Commission. Even if they are charged by a coincidence they are discharged from proceedings in no time.

Petitions have been made against the Governor of the Central Bank on the misuse of public funds in the purchase of shares from the EPF at a loss of Rs. 12 billion. The complaint made at the Bribery Commission has been ignored. In the purchase of Greek bonds the 2 billion loss incurred by the nation has been ignored. When the then chairman of the NSB attempted to buy shares, that may have resulted in a loss of Rs.300 million he is charged. When Rs. 400 Million is found in the bank account of a government minister he is not charged. The 43rd Chief Justice is charged for not declaring the details of an account that had zero balance.

Police service

    Police act with impunity within different cells. Each cell is unaware of the activities of the other. Our Police force is most intelligent. But their weakness is that they think that others are not. In crucial times they have to take instructions from politicians. Their powers are now vested with the Army, Navy and the Air Force under and by virtue of the Public Securities Ordinance. Ekneligoda, Lasantha, Kugan and incidents in Aluthgama, Dharga Town and Beruwala are some of the “duties” they had to discharge. In Beruwala they used some gaseous substance that was not commonly available. Some have the licence to abduct, loot and or commit arson, while some others have the licence to kill. Of course they are not without reward. Rathupaswela, Nittambuwa and Badulla are a few of the rewards to service personnel. The official killers are not charged. Some are blessed with the fortune to carry on in service for many years after retirement. 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 vigour and without favour.The judiciary stands between the citizen and the state as a bulwark against executive excesses of misuse or abuse of power or the transgression of constitutional or legal limitations by the executive as well as the legislature.

The judiciary and the survival of a legal system

In the back drop of the abrogation, of the historical and salutary 17th, the Executive has usurped the authority to make appointments to the apex court at will. Similar power was vested with the Executive when appointments were made under the 78 Constitution with the likes of Chief Justice Neville Samarakoon, Justice Dr. ARB Amarasinghe Justice, Mark Fernando and several other illustrious judges. Their names will go down in memory lane and inscribed and emblazoned for their courage in developing the law on fundamental rights holding against the very Executive that appointed them.

Do we now have the stamina or the courage to hold against a petty Police constable? I have my doubts. In the Attanagalla Magistrates’ Court in a case of shooting by a traffic police constable at point blank range with no provocation, the accused officer was surrendered to court and was bailed out the next day by the magistrate. In a matter where one is alleged to have committed murder the magistrate has no power to grant bail.

The Bar Association intervened in this matter and has filed revision papers. The appointment of political cronies is not too far! In fact that woeful day has already dawned. Is this the end of the golden era of Judicial Independence? No…..! It is not the beginning and nor is it the end.

Judicial appointments should be made on the basis of merit and seniority. They 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.

It is in recent newspapers that a new President of the Court of Appeal is appointed. He is an able officer of the Attorney General’s Department. He was appointed an Additional Solicitor General in March. The senior most judge in the Court of Appeal was also an Additional Solicitor General in 2005. He was appointed a Judge of the Court of Appeal in 2007. He sat on the divisional bench and issued the writ quashing the proceedings of the Parliament Select Committee. He has been deprived of his rightful place as the President of the Court of Appeal.


What does the Executive want? A subdued judiciary? A judiciary that makes orders on the will and desires of the Executive? Is it that what the Executive wants? If that be the case you don’t need a judiciary. You can rule with executive order; that’s monocracy; not democracy.

I have said this time and again but they are falling on deaf ears. Judges must be given security of tenure and 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 obnoxious practice of conferring privileged positions on judicial officers after retirement at the discretion of the Executive should cease.

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. We have seen in our midst that olden day judges did not deliver judgments to win the hearts of the rulers hoping for retirement benefits and perks.

A trial where the conclusion is pre-determined, dictated by politics, or directed by the government, does not uphold the rule of law. It is vital, therefore, that the prosecutor be a fearless defender of independence, impartiality and fairness – ensuring not just that the guilty are convicted but also that the innocent remain free.

The appointing process of judges with no merit or criteria overlooking the ones who are due for promotion is a clear message to the Judiciary to fall in line with the Executive desires. Independent, in the sense that a prosecutor should determine the merits of a prosecution solely on the basis of the law and available evidence.

No prosecution should be brought so as to satisfy the political aims of a party or individual. In the absence of admissible and genuine evidence, no prosecution should ever be started. The law courts are not the forum for settling political rivalries nor should they be used as a convenient means of neutralising an opponent. The selective application of justice would cause violence to the system we cherished for decades.

The prospect of a promotion; the fear of demotion or transfer; the chance of an increased salary or overseas trips; the possibility of a reward for a decision convenient to a political master – the prosecutor should guard against any of these considerations influencing his decision.

    Our history is scattered with abuses of executive power and failures within the justice system.

Look at our own record of communal violence. It happened in 1958. It happened in 1983. It happened in 2014. This was a system perceived as biased, unfair and unjust. It further fuelled the anger and hatred proved to a fertile breeding-ground for discontent and terrorism.

If you undermine or subvert the rule of law in the belief that by so doing you will protect your regime or system of government; you will ultimately prove to be the destroyer of all that you seek to preserve. You will draw the wrath and the curses of the present and future generations.

It is the duty of the judiciary, the legal fraternity and the media to be vigilant in guarding against the danger of providing a fig leaf of legal respectability to what in reality are oppressive, unfair and unjust systems of law and government, devoid of the rule of law.

As I said at the start, It is our duty and our call to play our role–a vital role and wake up from the palsy in safeguarding the liberties and freedoms of our fellow citizens. When the echoes of discussion and analysis of this congregation have faded, and you tread your weary way home, remember the real value and contribution which you can make to ensuring that the rule of law is upheld.

Needless to say, today our unique vision of the world stands in great danger. It is under challenge from various quarters and various ideologies and plans of political gain. However we as individual societies are unable to stem the tide since we are a house divided amongst ourselves.

Today, we have to retrace the steps of the greatest dharmic ruler of all Emperor Asoka, who nearly 2300 years back formulated a methodology of governance and took it to the world as an alternative way of governing a society. It is the demand of the times that we, the inheritors of the legacy of The Buddha, Jesus Christ and Allah all of whom preached love and respect, take their teachings forward.

King Dutugemunu’s example

Remember, in history when King Elara’s son ran a horse carriage injuring a peasant, the king ordered that the son be brought to the same place and punished. According to the Mahawansa ‘King Elara ruled this country for 44 years with even justice towards friend and foe’.

King Dutugemunu in the hours of his greatest victory proceeded to participate in the funeral rites of his noble enemy, King Elara. The place where he was slain was revered by his chivalrous foe, King Dutugemunu, who treated him with dignity. He built a stupa in the name of “Elara Stupa” at the place he was slain and inscribed the following words,

” Let no man, prince or peasant, in future pass this place riding in a palanquin or litter with the beating of drums.”

It is nothing but treating one another with respect and dignity. Society is built with people with conflicting views. It could be based on religious, social, political views or views on men and matter. King Dutugemunu is a name we mention with dignity as a conqueror. But if we are to respect him we need to learn the great quality of his respect to the vanquished.

If we are to enjoy the peace that has dawned after 30 years, it is of quintessence that we respect members of all communities as our own brothers and sisters, treat them with dignity. We should also recognize the fact that we have an equal right to live peacefully and be engaged in our professions according to our beliefs

[The following are excerpts from the Al-haj M. E. Bakeer Marker Memorial Oration delivered by Upul Jayasuriya, the President of the Bar Association of Sri Lanka (BASL)./Friday 12th September Dailymirror]


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