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Judiciary; a citizen-state bulwark against Executive excesses: BASL President
President of the Bar Association of Sri Lanka (BASL), Upul Jayasuriya P.C,, this week hit out at the appointment of the new President of the Court of Appeal, reiterating the need for Judicial appointments to be made on the basis of merit and seniority and not on political considerations.
“Due consideration should be given to career Judicial Officers who have worked hard over their entire careers to administer justice. If these
Upul Jayasuriya delivering the Keynote address at the Bakeer Markar Memorial lecture in the presence of Justice Minister Rauff Hakeem
salutary rules are breached, the outcome and its impact on the Rule of Law would be devastating,” said Mr Jayasuriya in his keynote address at the commemoration of Al-haj M.A. Bakeer Markar held on Wednesday. The function was organized by the Bakeer Markar Centre for National Unity.
Mr Jayasuriya said there were newspaper reports that a new President of the Court of Appeal has been appointed from the Attorney General’s Dept, someone who was appointed an Additional Solicitor General only in March this year.
“The most senior Judge in the Court of Appeal was 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 (on the impeachment of Chief Justice 43 Shirani Bandaranayake). He has been deprived of his rightful place as the President of the Court of Appeal,” Mr Jayasuriya charged.
He questioned the thinking behind these appointments. “What does the Executive want? A subdued Judiciary! A Judiciary that makes orders on the will and desires of the Executive? If that be the case, you don’t need a Judiciary. You can rule with Executive order,” he said.
The BASL President reiterated the need for Judges to be financially secure. “At least the Judges of the Superior courts, who are relatively few in number, should continue to receive all the benefits 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,” he added.
Mr Jayasuriya also said 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,” he said, “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.”
Mr Jayasuriya also spoke on the Sri Lanka Police Service, that the police act within different cells, where 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 the politicians. Their powers are now vested with the Army, Navy and the Air Force, under and by virtue of the Public Security Ordinance,” he said.
He said the “state of lawlessness” in the country 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 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.”
He added that the Judiciary stands between the citizen and the State as a bulwark against the misuse or abuse of power, or the transgression of constitutional or legal limitations by the Executive as well as the Legislature.
Mr Jayasuriya also paid tribute to Al-haj M.A. Bakeer Markar who had his early education at St. Sebastian’s College, Hulftsdorp, and thereafter, at Zahira College Colombo, and had the privilege and the benefit of being moulded by a first class educationist of Sri Lanka, T.B. Jayah. “He was called to the Bar in 1950 and later elected President of the Kalutara Bar. He entered Parliament a decade after joining the Bar. He was elected Deputy Speaker and later Speaker of the Parliament in 1978, and a Minister in 1983.”
“That was an era of Gentlemen in politics. He belonged to a rare creed and did not believe in nepotism, even within his family. He was a rare example to politicians past and present. In 1988 he bowed out of politics, and made way for his son who was a lawyer himself, with a natural flare for political leadership, to fill his void.”
He said that Bakeer Markar played the game by its rules. “He was a man who never stepped on the rule. Rule of Law is the Rule by Law and not the Rule by Men, as it often happens around us. To ensure the proper maintenance of the Rule of Law, the Independence and Dignity of the Public Service, Police Service, Foreign Service, Education service and, more over, the Judicial Service is of paramount importance. “
| ASG Vijith Malalgoda P.C. new Court of Appeal PresidentAdditional Solicitor General Vijith Malalgoda P.C. was this week appointed President of the Court of Appeal, and took his oaths before President Mahinda Rajapaksa.
Mr Malalgoda is an old boy of Dharmaraja College, Kandy. He entered Law College in 1979 and was sworn in as an Attorney-at-Law in 1982, following which he joined the Attorney General’s Department as a State Counsel. He served in several posts before the new appointment, including those of Senior State Counsel and Deputy Solicitor General before being appointed Additional Solicitor General. |