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This 'State Of Lawlessness' Has To Be Curbed And Controlled By The Judiciary

2013 Jun 18

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.

Your Ladyship having had the early education in the south had done proud by your alma mater, the leading girls school Sangamittha. Having been called to the Bar in 1979 you have served the Judiciary for 27 years in many out stations including, Colombo, Kurunegala, Panadura and Chillaw as a High Court Judge. Your Ladyship obtained the Masters Degree in Law at the Deaking University Austrailia with international exposure in National Law School in Bangalore and National Judicial College at the University of Nevada, Reno.

It is the dream of every Judge to be able to ascend to 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 midnight oil with your pen on paper in endeavoring 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 practice 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 back drop of the abrogation, by the 18th amendment , of the historical 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.

To secure this, Latimer House principles were adopted in Buckinghamshire, United Kingdom in 1998, inspired by the Law Ministers of the Commonwealth in 1996. This is the work labored by Commonwealth Associations of lawyers, judges and educationists. It took 10 years to have them assented by the Commonwealth in 2008.

Theses principles have laid down that;

(a) Judicial appointments should be made on the basis of clearly defined criteria and by a publicly declared process. The process should ensure equality of opportunity for all who are eligible for judicial office;

(b) Arrangements for appropriate security of tenure and protection of levels of

remuneration;

(c) Adequate resources should be provided for the judicial system to operate effectively without any undue constraints which may hamper the independence sought;

(d) Interaction, if any, between the executive and the judiciary should not compromise judicial independence.

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.

Those institutions which are more directly linked to law enforcement and the administration of justice, should not be placed in jeopardy either. There are also other statutory bodies that are vested with quasi judicial functions who should be protected from facing problems due to politicization and the loss of professional independence.

We have seen frequent instances where the principle of equality before law appears to have beeb 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 penalized, 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 with out 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.

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. He has to ensure that the administration conforms with the law and to adjudicate upon the legality of the exercise by the executive of its power.”

Impartiality is the essential quality which must be possessed by a person occupying judicial office.

One of the verses in the Hindu scriptures say that a judge must be blessed with the following qualities:

“He should be learned, sagacious, eloquent, dispassionate, impartial; he should be a guardian to the weak, a terror to the wicked; his heart should cover nothing, his mind be intent on nothing but equity and truth.”

Pandit Nehru, while speaking about the judges of the Supreme Court in the Constituent Assembly which framed the Indian Constitution, observed:

“It is important that these judges should be not only first-rate but should be acknowledged to be first-rate in the country and of the highest integrity”

I have no hesitation to say that your ladyship has all the qualities of a fearless judge. Your Ladyship is scrupulously honest. Having said so I believe that your Ladyship in the new environment that you are placed in, would approach matters with compassion and kindness.

Judges, however, are human beings with the frailties and failings which common people have as they are not divine, and their independence and impartiality in cases where the State is a party are likely to be impaired by the fear of losing their careers. Security of tenure and the legitimate expectation of promotion based on seniority and merit, therefore, is essential. The tenure of judges and their promotion cannot be made dependent on the mere pressure of a government. It must be secured against executive and legislative action.

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 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.

It is not my endeavor to seek what benefit I could derive as the Leader of the Bar. I am conscious of the fact that I will be called upon to make many a sacrifice, some of which are personal.

Your Ladyship can be contended that your Ladyship has ascended the Court of Appeal flanked by judges who have had the will and the courage to stand up for what is right and with willingness to make sacrifices, of even decades of impeccable professional life and well deserved and warranted hopes, for this sacred cause.

Your Lordship the President of the Court of Appeal,……..permit me to say that such judges are immortal and blissfully live in our hearts for ever and ever.

Let me conclude by describing the qualities of a true Judge as worded by Thomas Jefferson, the third President of the United States of America.

His integrity was most pure, his justice the most inflexible I have ever known, no motives of interest or consanguinity, of friendship or hatred, being able to bias his decision. He was indeed, in every sense of the words, a wise, a good, and a great judge.

The Bar has every confidence that Your Ladyship will be such a Judge in this Honourable  Court and the Bar and I personally wish you well as you assume this high Office and welcome your well deserved appointment.

*Speech made by Upul Jayasuriya , The President of the Bar Association at the Ceremonial Welcome of Justice Malini Gunaratne
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