While it is not the intention of this columnist to comment on the merits of the pending fundamental petitions filed by the President and Secretary of the Judicial Services Association of Sri Lanka (JSASL), it is, however, highly relevant to focus on general issues that have arisen regarding the institution of the judiciary both here and elsewhere as a result of these applications.

The President and the Secretary of the JSASL allege that their rights to equality, freedom of speech, assembly, association and the freedom by them or in association with others, to enjoy and promote their own culture and use their own language have been violated by particular actions of the Chief Justice (and the other members of the Judicial Services Commission).

These include the failure of the JSC to convene the annual conference in the name of the JSC and failure to take steps to grant duty leave, subsistence and travelling allowance to judges in order to enable them to attend the conference. In addition, the JSC is accused of organising a rival seminar to coincide with the annual conference, granting duty leave for the participants of the rival seminar, making it compulsory for all members to attend the hastily arranged rival seminar and effectively preventing judges from attending the annual conference of the JSASL.

The petitioners specifically allege malice on the part of the Chief Justice in all these actions. They claim that the reason for such was that the JSASL (under the aegis of its present office bearers), had passed a resolution at a committee meeting on 26.1.2002, condemning the act of the Chief Justice in employing the services of an underworld criminal as the caretaker of the Judges Institute, which the JSASL considered to have been a blow to the reputation and esteem of the judicial officers of the country.

Hearing into the petitions is pending before a three member bench of the Supreme Court. Three intervenient petitions have meanwhile been filed by three other members of the executive committee of the JSAL opposing the rights petitions.

So, the question becomes relevant; what are judges to do when the institution of the judiciary comes under attack within that institution itself as opposed to external influences? This is a debate that revolves around a somewhat ignored facet of the independence of the judiciary; the importance of being independent from one another. This is particularly so where the appellate judiciary is concerned with reference to the minor judiciary and is a principle that would be equally relevant whether it concerns the official functions of minor judges or the holding of their annual meetings which is a vital part of the nature of their office.

The former was notably in issue recently when directions were given by the Chief Justice of Trinidad and Tobago prohibiting a particular judge of the High Court from sitting on the Bench. These directions were challenged before the Court of Appeal and finally the Privy Council, with reference to the specific constitutional context of that country. The Privy Council, upholding a decision of the majority of the Court of Appeal of Trinidad and Tobago, concluded that the Chief Justice had no power to suspend or remove the judge from office except through the procedure provided by the Constitution. (Rees v Crane [1994] 2 AC 173).

It was ruled that the Chief Justice's power to organise the procedure and sittings of the courts did not run so far as to exclude a particular judge from participation in the roster without affording him his constitutional and statutory protections and a fair hearing. Such actions were not within the Chief Justice's legal competence.

The judges' protest also puts into focus, in the second instance, particular remarks made by United Nations Special Rapporteur on the Independence of the Judiciary, Dato Param Coomaraswamy, during a 1996 law conference in Colombo.

Coomaraswamy's point regarding the independence of the judiciary was that the right to an independent justice system is not that of the judges or lawyers. It is not a legal slogan to enhance the images of judges or lawyers. Instead, it is a right of all consumers of justice. And is indeed, a right, protective of all other human rights.

Proceeding from this fundamental premise, Coomaraswamy went on to hold out a new standard for judges, traditionally isolated in their Olympian splendour from public debate and opinion.

His thinking was that judges should not fold their arms and sit in their chambers, expecting others to do their bidding in respect of fundamental questions concerning the independence of the judiciary.

In this respect, he cited recent happenings in countries around the world where judges have come out openly on issues concerning the institution of the judiciary. In the South Asian sub-continent, both India and Pakistan have been noted by discussions initiated, in certain instances, by judges themselves on streamlining the manner of judicial appointments. Some of these discussions have been taken before the courts, resulting (in India at least) in the formal constitutional protection given to judges in respect of their appointments, being further clarified and strengthened from interference by the executive.

In the United Kingdom, following executive criticism of the judiciary over decisions on applications for judicial review, the House of Lords, at that time, discussed a motion on judicial independence. Prominent English judges, both sitting and retired, participated in the five hour debate which exhaustively discussed the relationship between the judiciary, the legislature and the executive.

These debates, in fact, formed part of a larger push for greater formal insulation of the institution of the judiciary from executive interference even though the British judiciary had traditionally distinguished itself by a jealous preservation of its independence and integrity.

Australia similarly, has seen minor judges sitting on the Accident Compensation Tribunal suing the State government for compensation for loss of office when the government legislated them out of office by repealing the entire legislation creating the tribunal, arguing that when they accepted the appointment, they were assured of their security of tenure. In Canada, provincial judges have appeared as litigants in cases concerning security of tenure and independence of the judges of the lower courts. The principle therefore that judges should avail themselves of the constitutional protections afforded to citizens in general is well established.

Regardless, the petitions of the office bearers of the JSASL (and the intervenient petitions) will undoubtedly re focus attention on the institution of the judiciary in Sri Lanka, already under a considerable cloud in the eyes of the public. The news item in a daily paper this week announcing the hearing of the petitions under the heading "Judges vs Judges in case against CJ" is particularly pungent in this regard. The drama, it appears, is yet not over.

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