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Independent Judiciary is the people's last resort

2013 Jun 19

Speaking at the ceremonial sitting held to welcome the newly-appointed Court of Appeal Judge, Malini Gunaratna last Friday, the President of the Bar Association of Sri Lanka, Upul Jayasuirya urged an end to the practice of offering privileged positions to judges after retirement. At a time when the independence of the Sri Lankan Judiciary has become a subject for discussion, the suggestion of the head of the unofficial bar seems to be timely and vital.

Former Army Commander Sarath Fonseka in 2010 was cashiered and stripped of his rank, medals and decorations won during his Army service for his alleged involvement in politics while he was in uniform, though the charges against him were apparently brought for political reasons. However, no judge in the country so far has been penalised or at least officially accused of engaging in politics while in service. But the practice referred to by Jayasuriya where judges (and also the higher-ups of the armed forces) are lured by the political authority wittingly or unwittingly to think politically, at least in certain cases, by offering various posts and positions to their predecessors is a matter to be concerned with.

One would find only circumstantial evidence, but not vivid factual evidence or documentary proof to link this process of offering positions to top judges and servicemen after their retirement with the decisions taken by the sitting judges or those currently in commanding positions of the security forces. Nor would one find such factual evidence to link the decisions of the very officials with their post-retirement assignments. However, there is also no assurance that successors are being influenced by the fortunes of the predecessors.

One cannot object to a retired judge or a high-ranking serviceman taking a particular government assignment after his retirement purely for his distinctive capabilities for the job that he had displayed before his retirement. But one would wonder as to how many such post-retirement assignments have been offered on that ground, and this gives rise to doubts on the motives of the political authority as well as the past career of some such assignees.

This process would more seriously affect the Judiciary than any other profession as it is one of the three arms of the government. The credibility of a judge and all his or her decisions throughout his tenure would be severely eroded once he or she accepts something with the slightest resemblance of a political appointment. Hence, accepting such positions by the retired judges is far more serious than making those appointments by politicians who are invariably inclined to manipulate any system in the country for their political as well as financial gains.

As such, anyone concerned over the independence of the Judiciary would agree with the President of the Bar Association.
The American Constitution has touched upon a similar ethical issue, although while dealing with the legislature. It says; “No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created,
or the emoluments whereof shall have been increased during such time….” This clause highlights the ethical aspect of making decisions in public affairs without being mindful of future personal gains.

The Independence of the Judiciary is vital as it is the last resort of the public, especially at a time when validity of the Executive Presidency and the two-thirds majority power in the Parliament are increasingly being questioned in the light of good governance and public interest. 

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