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Are We Heading In The Right Direction?

| by Upul Jayasuriya 

Your Lordship Justice Sisira De Abrew is a product of Dharmashoka College, Ambalangoda.

(May 20, 2014, Colombo, Sri Lanka Guardian) Your Lordship excelled at Law College and obtained classes at the Preliminary and the Final exams. Thereafter you took oaths as an Attorney at Law in 1981 and joined the Attorney General’s Department as a State Counsel in 1982. You were promoted to the rank of Senior State Counsel in 1996. During this period you conducted prosecutions before courts in almost every province. You have also prosecuted numerous jury and non Jury trials. Whilst at the Department you were extensively exposed to both Civil and Criminal fields in the original Courts and in appellate Courts. In addition you had the privilege of supervising such matters as a Senior State Counsel and handled matters of complexity, as well as opinions regarding the constitutionality of Bills.

You were a member of the team which represented the Sri Lankan Government in bi-lateral talks with the British Government on matters relating to aviation in 1997 in London.

Leaving your career as a Senior State Counsel you began your Judicial Career as a Judge of the High Court in 1998, nearly 16 years ago.

You served as a High Court Judge in Ampara, Anuradhapura, Kandy and Colombo. As a Judge of the High Court you have had experience in hearing and determining Criminal Trials, appeals and revisions from the Magistrate’s Courts, revisions from the Primary Courts, as well as LT appeals and writ applications.

Judge of the Court of Appeal

You were appointed a Judge of the Court of Appeal in January 2005 and served in the Court of Appeal for nearly a decade. During this period you heard and determined revisions, appeals, writ applications, embracing the entirety of the civil and criminal law and was presiding over the Criminal Division of the Court of Appeal and the Writ Court. Your Lordship was appointed President of the Court of Appeal in February 2014.

Whilst you served as a judge of the Court of Appeal you have had the benefit of exposure to many a International Institutes.

• in 1993 in UNAFEI in Tokyo,
• in January 2004 through IMF in Singapore;
• in 2004 at the City University of Hong Kong and in the University of Cape Town, South Africa;
• in 2007 on the Legal Procedure adopted by the Constitutional Court of South Africa, in Johannesburg;
• in August 2008 on The Role of the Judiciary and Promotion of Equal Justice at the Faculty of Law University of Cape Town in South Africa;
• in 2008 on Transformational Constitutionalism at the University of Stellenbosch, South Africa;
• in July 2009 on International Telecommunication Law,and Cyber Crimes held at the International Telecommunication Union in Geneva;
• in July 2009 on International Arbitration Procedure held at WIPO Arbitration and Mediation Centre in Geneva,
• in August 2009, at the University of Queensland in Australia in the fields of Information Technology Law;
• in September 2010, at the Commonwealth Magistrates and Judges Association [CMJA] conference held at the Brighton University, England on “Community Justice;
• in July 2011, CMJA Conference in Kuala Lumpur, Malaysia;
• in 2012 at the University of Wisconsin Law School in USA on Enhancing Access to Justice;
• inMarch 2013 on Global Counterterrorism Cooperation in Kathmandu, Nepal;
• In September 2013 in Jersey Commonwealth Magistrates and Judges Association conference, on “Is Your Latimer House in Order?”

Your Lordship Justice Sisira De Abrew, I am happy to say that your Latimer House is in order! In your case the guidelines that are enumerated in the Latimer House Principles with regards to the appointment of Judges to the Apex Court have been complied to the last letter.

It is with enormous wealth of knowledge you have ascended the Supreme Court which is your rightful place. You have earned this distinguished seat with character possessing over three decades of sacrifice and dedicated life as a member of the Attorney General’s Department and thereafter as a Judicial officer.

You have dedicated your entire professional life from its cradle, straddling over 32 years to the Public and Judicial service. The Bar is aware of your accomplishments and unimpeachable conduct as a Judge. You have shut the doors to those acquaintances and associates who seek entry to influence you to imbalance the scales of Justice that you always held close to your heart even at the risk of being deprived of your due promotions and personal loss.

The Bar admires you and is proud to Welcome you as a judge of the Supreme Court.

Your Lordship Justice Sarath De Abrew

Your Lordship Sarath De Abrew had your primary education under the motto of “Esto per Petua” at St’ Thomas’s College Mt. Lavinia. Whilst at school you excelled in Sinhala, English and Latin. You Joined the Legal Profession 37 years ago and had a short stint at the Attorney General Department.

Thereafter you joined the Judicial Service as a Magistrate at the age of 28 years and served for 14 years in the trenches of the legal battlefields. You served as a Magistrate in Trincomale, Panadura, Tangalle, Galle and in Mt. Lavinia.

Your Judgment in the famous Abesundera Case that was finally upheld in the Supreme Court, has created Legal History on polygamy. Thereafter you went through the Judicial career as a District Judge then a High Court Judge. As a District Judge and a High Court Judge you have served in Moratuwa, Kandy, Ampara, Hambantota, Kalutara and Colombo and ascended the Court of Appeal in 2006. Painstakingly you have written legal essays in Judgments burning the mid night oil. In all your life you have sacrificed luxuries’ that are not affordable to a public servant.

Your experience as a judge justifies your appointment to the Supreme Court in keeping with the Latimer House Principles.

Today you have reached the zenith of your professional life having labored 32 years as a judge. Your appointment is a silver ray of hope to the career Judges whose aspirations of promotions have been dashed to the ground in recent times. You have held the scales of Justice evenly with neither fear nor favour as one expects from a Judicial Officer.

We Welcome you Warmly to the Apex Court of our Island Nation.

Your Lordship Justice Priyantha Jayawardena,

Your Lordship had your early education at Nalanda Vidyalaya and Joined the legal Profession in 1987. You obtained a Masters Degree in 1992 from the University of Aberdeen. Whilst at Aberdeen you have given legal advice to the Public. You have enrolled yourself as a Solicitor in the United Kingdom in 1993 and in 1999,Your Lordhsip followed a short course at the National University of Singapore. You have served the Attorney General’s Department for nearly 7 years.

Whilst at the Attorney General’s Department you have also assisted the Ministries of Trade and Commerce and Foreign Affairs. You have been a tutor and an examiner at Sri Lanka Law College from 1997 -1999.

Since 2000 you have been at the private Bar. You have been a visiting Lecture at the University of Moratuwa. You have been a consultant to Sri Lanka Insurance and several government institutes. You have also been appointed a Member on several Government statutory boards.

It is with this environment, that your Lordship has been appointed to the Supreme Court from the Private Bar.

If we lose our struggle for Judicial Independence and professional integrity, if we cannot defend our right to practice our profession with dignity 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. These values are precious and priceless. Are we heading in the right direction?

As we all know the 17th amendment was to put this country in that right direction. In a rare unanimous vote Parliament set the record straight and appointed a constitutional council to select and recommend appointments to the executive to fill the vacancies to the Apex Courts. Tragically the 18th amendment reversed this trend. The Executive usurped the powers of the constitutional Council to make these appointments once again frustrating the long established traditions of the legal profession, judicial system and the hopes of a Nation.

The Constitutional provisions in India viz-a-viz the appointment of Judges to the Apex Court is the same. However the Supreme Court of India has by Judicial Interpretation propounded that the Executive Prerogative is not unfettered. Such appointments are made only on the recommendations of the Supreme Court. In USA too the President has the power to appoint Judges to the Supreme Court. But those nominees have to go before the sub Committee of the Senate and subjected to public scrutiny. The appointment of Judge Clarence Thomas is a good example.

The appointing process of the Judges was challenged in Sri Lanka in the case of Edward Silva Vs. Shiranee Bandaranayake where it was held that the “best practice of appointment to the Apex Court is in a consultation with the Chief Justice, the Attorney General and the Minister of Justice.”

If the Executive persists in acting in breach of these salutary principles it would be an invitation, persuasion or perversion to the mind of the Judges to cast aside their Judicial Independence and succumb to the invidious pressures of the Executive. Is that what is in the mind of the Executive? To break the back bone of Judicial Independence? 

It was just a few months ago in this same August assembly that I wished a speedy recovery to His Lordship the President of the Court of Appeal Justice Sri Skandaraja; A great judge of our time. His life was cruelly snatched away from our midst – a broken hearted man at the time of his death. 

We shall kneel before the altar of Almighty Justice, "Father, forgive them, they know not what they do. Their ill and will has no bounds or confines." This voice must surely speak, to civil society. The deprivation of his due place for that humble simple man who sat behind the bench, was nothing but a travesty of Justice. Are we to blame the “system” and pass the buck? No ! The buck stops here.

The blame can not be attributed only to the Executive. The persons who do not fall within the time tested and respected criteria, cringe and scrounge brazenly at the feet of the Executive seeking such appointment whose lame excuse thereafter is that the Executive invitation can not be turned down; are equally guilty of the transgression against the society. We the Legal Profession and the civil Society and those of us entrusted with that public trust, are also to blame for it.

If the Executive exercises a prerogative that it never possessed, the legal profession and the Judiciary would both have to plead mea culpa! Mea Maxima Culpa!

Permit me to quote Edmund Burke an Irish Philospher, in the 17th Century;
“The only thing necessary for the triumph of evil is for good men to do nothing”

The Bar can not endorse any view contrary to these time honoured principles that are being flagrantly violated in recent times. The Bar cannot and shall not condone such sullied attempts to desecrate the Temple of Justice, detrimental to the hope and expectations of not only the Judiciary not only the official and the un -official Bar but the country at large. Exercise of such arbitrary powers and practices shall be opposed at any cost and continue to be opposed at any price until sanity prevails.

Be it the Career Judiciary; be it the Attorney General’s Department, be it the private Bar, if merit, seniority and eminence is to be ignored at the alter of political patronage in making appointments to the Apex Court we might bid farewell to the independence of the Judiciary, the Rule of Law, the Law books and Judicial Precedents.

learned ladies and gentlemen of the legal profession, the day is not too far when the ordinary people of this country seek their own means of social Justice or summary Justice, perhaps unfortunately the day has already dawned. Have we no eyes to see nor ears to hear nor tongue to speak about the break down of the rule of Law on the streets today?

I am further reminded of Burkes prophetic words, “danger of People crushed by law, have no hope for what is right but for might. If laws are their enemies, they will be enemies to laws; and those who have much to hope and nothing to lose, will always be dangerous”

The land like no other, the miracle of Asia! We have to ask the question ourselves as to where are we on the right path? The people in Sri Lanka believe that a well-informed public, Rule of Law and a vibrant Judiciary to be the core of our democracy.

Our forefathers fought the colonial rulers and won the democratic rights for our people. We inherited not only the franchise but an upright Civil Service protected from politicians, an efficient foreign service. An unshackled Police Service, a functional education system, and independent Judiciary.
What are we now left with?

It is our call today. Let us at least save the Judiciary from this monocracy and save the last existing pillar of democracy. 

We shall not allow to engulf the bulwarks that we built and treasured since independence. Independent statutory bodies that were in place to provide protection and fortification have been muted and mummified over the years. Law enforcement authorities have fallen prey to the fearful invasions. The manner in which the Bar has been compelled to tolerate should by no means be interpreted as its weakness nor meekness . 

The citizen's respect for law, Esteem for the courts and for the judges who preside over them is the very essence of the Independence of the Judiciary. Confidence in these institutions and in the men who administer them is “sine quo non”, if this respect is to be maintained.

This essential co-relationship between “public respect” and the “rule of law” needs to be recognized to maintain the dignity and respect of Courts.

Arthur T. Vanderbilt (July 7, 1888 – June 16, 1957) Chief Justice of the New Jersey Supreme Court from 1948 to 1957, stated that " It is imperative that judges-beholden to no man, independent and honest, and- equally important, believed by all men to be independent and honest to the cause ,"

If we do not have in place, procedures that are free from the Executive melancholy with the confidence that globally accepted principles, are observed in our Country too the resultant Justice would be colored and mutilated.

If merit, seniority and eminence is to be ignored with Judicial appointments being made on the basis of collateral agenda our hope for the miracle of Asia would be a distant dawn. Due consideration should be given to career Judicial Officers who have worked hard to administer justice over their entire careers and in suitable instances best ever and first rated appointments should be made from the Attorney General’s Department. If these salutary rules are breached, the outcome and its impact on the rule of law would be devastating. 

May I repeat? 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. 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. "

Permit me to conclude my address with also a quotation from the words of wisdom of lord Buddha from the adhammika Suthra of the Angutthara Nikaya;

" Eva meva manusessu, yohothi setta sammatho
So Che adhammang charathi, pagewa ithara paja
Sabbang rattang dukkang sethi, raja wehotha dhammako"

So too, among human beings,
When the one considered the King
Behaves un righteously,
Other people do so as well.
The entire kingdom is dejected
If the king is unrighteous."

Thank you

( The speech delivered by the writer as the President Bar Association of Sri Lanka )

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