Independence of the Judiciary and the Bar Association on hybrid judges

The Hulftsdorp Courts Complex

Independence of Judiciary

Independence of the Judiciary concerns the entire judicial system as, when the judges are not independent, not quality and not living up to the expectations, the administration of justice will collapse. Judges are charged with the ultimate decisions over life, freedoms, rights, duties, and property of citizens. 

The 6th United Nations Congress called upon the Committee to create guidelines relating to the independence of judges and selection of professional training and status of judges and prosecutors. This system trickles down to all jurisdictions worldwide. Judges are bound to decide matters before them impartiality on the basis of facts and in accordance with the law without any restrictions, or improper influences. Our judicial system is advanced and stands above any world system though there were unfortunate black patches from time to time such as the era of Sarath Silva – the most controversial Chief Justice to lead the Judiciary in Sri Lanka. 

The Supreme Court was established in 1801 during King George and the great traditions and reputation have been maintained to date. Our judges and lawyers have served in United Nations affiliated bodies and governments respected by the world at the highest esteem. Our Judiciary is protected constitutionally and remunerated well with all facilities up to the status and standings of a judge who should be economically sound to maintain independence and independent from pressure from Executive or the Legislature. 

It is accepted that everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. The term of office – their independence, security, adequate remuneration, and conditions of service, pensions and the age of retirement shall be adequately secured by law. Promotions should be based on ability, integrity, and experience. We are fortunate to have judges/judicial system well equipped with all these ingredients second to no other country. 

We are now free from Privy Council and free to be tried by our own judges who are conversant without culture and say of life. There is news of impeachment of two Supreme Court Judges which is worrying as it will send wrong signals to the international brotherhood when we are in a controversial situation after having agreed to a compromised resolution on the human rights issue. 

There were attempts to impeach Neville Samarakoon and Sarath Silva which did not proceed to the end. As our superior and ultimate court is the Supreme Court, it is our duty to maintain the respectability and continuity of the highest court established on 1801 court structure and the system of administration of justice.

 

Fearless Judges

In Sri Lanka from the inception of the system of governance, the principle of separation powers were in existence and the three branches namely the Executive, Legislature and Judiciary, preformed their duties in harmony except for few instances of turbulent situations. 

Chief Justice Neville Samrakoon had differences with President J.R. Jayawardena who appointed him from the unofficial Bar to be the Chief Justice. He was an outspoken, honourable and fearless Judge who went through a turbulent period with the Executive. But that particular incident has not damaged the continuity of existence of separation of powers and the co-existence among the three branches of the Government. 

The impeachment of CJ Shirani Bandaranayake was an unfortunate situation which should not have taken place. A young and energetic academic Judge was misdirected and misled by a left-oriented political party and some lawyers backed by NGOs with a different and political agenda. Removal of CJ Mohan Peiris – an excellent Judge and a leading versatile lawyer – by a mere letter from the Executive on the basis he was not properly appointed as the Chief Justice is the most unfortunate blot in the annuls of the Supreme Court history.

Apart from these isolated incidents since 1801, we can be proud to be one of the advanced and independent judicial systems in the world with great jurists of the calibre of Justice Professor Weeramantry who was elevated to the position of the Deputy President of the World Court. In short we are blessed with judges of world standard to cater the needs of this educated nation.

 

Legal system

The Sri Lankan legal system was originally a combination of Roman Dutch and English Law. The present system of judicial administration and organisation is based on the current Constitution introduced in 1978 apart from the personal laws in existence. No changes to the judicial system were made under the recent changes to the Constitution with the changes of the Government towards good governance popularly known as ‘Yahapapalaya’.

The Judiciary comprises the Supreme Court, Court of Appeal, Provincial High Courts, District Courts, Magistrates Courts and Primary Courts. The Supreme Court is the highest court headed by the Chief Justice of and other judges. Infringement of any fundamental rights declared and recognised by Chapter 3 or 4 will have a remedy where Article 126 of the Constitution has exclusive jurisdiction to hear and determine any questions relating to infringement or imminent infringement by an Executive or administrative action. 

Human rights activism gradually developed the human rights jurisprudence, with the knowledge on conventions, covenants and human right instruments which are being directly indirectly and tacitly imported to Sri Lanka. Comparatively Sri Lanka has the largest number of Non-Governmental Organisations (NGOs) and human rights activists organisations in a developing country. NGOs found Sri Lanka a fertile ground to live and enjoy being one of the most beautiful and islands in the world with affordable cost of living for their NGO activism. Some were engaged in religious conversions mainly concentrated in villages, some engaged in business enjoyed the luxury of the country with powerful dollars and pounds against Sri Lankan rupee. It has been the general belief that they have misused the polite and good nature of Sri Lankan and economic backwardness of the rural polite.

 

Judiciary and the Bar Association

The Bar Association is the only recognised professional body for lawyers who will automatically be enrolled as a member of the BASL as a right on enrolment as an Attorney-at-Law of the Supreme Court. BASL membership is exclusive for the lawyers. It is a powerful profession consisting of members who are extremely powerful in the political business administrative and judicial arenas. Judges are selected among the lawyers and promoted to the higher positions on seniority. 

The Attorney General is the leader of the Official Bar and the President of the Bar Association is considered to be the leader of the unofficial Bar. Therefore the BASL is expected to maintain independence which they jealously guard and protect until recently when there are attempts to import political affiliations and external interventions indirectly and tacitly. BASL appears to have taken part in the regime change process led by then leadership by making statements, organising press conferences on matters outside the purview of the BASL, for which they appear to be amply compensated. 

The union of the Bar Association with the American Embassy has raised the eyebrows of the membership and the public as from time immemorial the independence of the Bar was maintained by the Bar Association which is a statutory body recognised by the State and the Judiciary. Dealing with embassies and receiving funds and assistance is prohibited and unprofessional by this most respected and respectful profession and professionals proud of being independent. A sorry state is the silence of the membership and enjoyment the privileges and foreign funds with no hesitation as fat cat NGOs are powerful in Sri Lanka. 

We should maintain friendly relations with our close friend USA with care who is a world power with hidden motives and agendas in favour of their nation as it is natural for them to be pro-USA as much as we are pro-Sri Lankan. As an independent professional body we should be whiter than white and be cautious with dealing with powerful world powers.

 

Hybrid judges

This is a term used after the proposed resolution of the UN High Commissioner of Human Rights on Sri Lanka in view of the annual human rights sessions. The UN Human Rights Commissioner proposed international judges when Sri Lanka proposed Commonwealth and foreign judges – not international judges to the hybrid courts suggested by the proposals. It is difficult to differentiate foreign and Commonwealth judges from international judges as any way the foreign and Commonwealth judges too are international judges. 

The High Commissioner of Human Rights in the UN, a Prince from Jordan – a Middle East Islam State headed by King Hussain, a close ally of the USA – expects Sri Lanka to import international judges from other jurisdictions, when we maintain highest judicial standards on legal education in our respected and sophisticated legal system second to no country in the globe. When Sri Lanka is armed with a highly developed legal, administrative, and a system of governance with an educated workforce and jurists above many Asian counterparts, it is unnecessary to import foreign hybrid judges whose thinking is different and has prejudicial briefings by interested parties. 

We are on a bad wicket now as we have already agreed in principle for the resolution adopted at the Human Rights Council agreeing to foreign judges and jurists to intervene and interfere with the newly-proposed hybrid mechanism. We are self-sufficient with the highest standards on legal knowledge, jurists and an advanced legal and administrative system not second to any part of the world.

 

Measures by the BASL on regime change process

The BASL was active in political activism with the media by organising press conferences and issuing statements on the matters outside the purview of the BASL objects and traditional duties. The previous BASL administration was vociferous and active on regime change process for which they are amply compensated by the appointment/s of the most powerful financial and investment organisation in the business world in Sri Lanka. 

Now that Sri Lanka has agreed on a mechanism with hybrid judges there will be additional funding from the international brotherhood of $ 337.800 for the implementation mechanism of the resolution, for judges, lawyers, prosecutors court systems and implementing centres with a Colombo office and branches with staff with diplomatic immunity to implement the decisions taken and to implement the mechanism. But as the UN, EU and internationals are slow in action, this mechanism is bound to be the same and there is a possibility to take a long period as has taken place in similar mechanisms in the other parts of the world. 

Our experience with such international courts is that it takes few decades for the completion of the trials and the mechanism will be in Sri Lanka with all facilities and diplomatic privileges until the end of the trials and even thereafter to supervise the implementation as envisaged in the resolution.

BASL leaders may have taken the cover of Article 2 C states as follows, “The consideration of matters of national importance relating to the rule of law and administration of justice and if need be, making of representation thereon to the Government and/or any other relevant authority and taking any further steps in respect thereof including faking of actions and intervening in actions in Courts of justice.” 

The MOU/Trust Deed entered into may have been under the cover of this clause as all other objects of the BASL are on the membership and connected matters. Never in the history of the Bar Association and the Law Society has this kind of activism taken place outside the purview of the professional body and it is time to be cautious in the future to be whiter than white.

 

US Aid funds for the Bar Association

US Aid Development Funds for the Bar Association – MOU/Trust Deed appear to have signed between the BASL and the USA Ambassador Michele Sison, then Ambassador on USAID scheme to help civil society initiatives, strengthen democracy, democratic institutions, rule of Law, help administration of justice and varied matters. Enormous sums of funds have been pumped to BASL, which is continuing to date with staff currently working hand in hand with BASL staff. 

The danger is the possibility of free access to the date base and important confidential information of the members of this powerful professional body consists of most powerful personalities in Sri Lanka including the Executive, Legislature and Judiciary, which is a worrying situation. Where the USAID staff on this projected is stationed is a matter of an important topic at Hulftsdorp. Is it safe for us to expose our databases and important information of the most powerful professional organisation with most powerful personalities in the country to an outside interested parties is a matter we have to consider in a broader spectrum outside political racial and other considerations.

 

Way forward

It is time for the BASL, OPA, and other professionals/organisations and national minded civil society to plan out a strategy to sale through this difficult voyage on our decisive era in the main crossroads in our history keeping all political and other differences aside in the interest of the nation in crisis. It may be that the people concerned need guidance and direction of the professionals and intellectuals when governance is lacking in such raw materials and ingredients. 

We have a battery of competent and world reputed intellectuals and educated in Sri Lanka and worldwide who will be prepared to assist the country. Lawyers and professionals have a main role to play in this crisis. If we are trapped by interested parties and world powers, it will be forever as the international instruments enforced in the guise of the resolution will have a long-term binding effect on us for which we are too weak to resist or to correct in future. 

We deal with human beings who are selfish and have strong love towards their nations. Leaders of counties and international organisations are selfish to themselves, their countries and organisations as their primary concern is them their country and rest secondary. Therefore we have to take our own precautions for which we are competent. We were cheated by Portuguese, Dutch and British. India imposed the Indo Sri Lanka Accord on us with the power of the Indian Army and regional power. FTA and the proposed CEPA with India may be a Trojan horse with a threat of indirect invasion for employment and business.

We are a fortunate beautiful country that has existed for over 5,000 years next to a giant neighbour, still independent and leading as a prosperous and developed country which is positioning itself to become a leading hub in the Indian Ocean. There are no comments by the Bar Association, OPA, or from civil society except for a handful on the FTA, water, junk food, environment pollution on a large scale and CEPA which will have direct effects on the lawyers and professionals, and the UN resolution on Sri Lanka proposing hybrid judges and number of proposals which involves direct and indirect external intervention. It appears that the BASL and the media has self-imposed censorship on matters of public and national importance. It is time to think of the nation without petty political or racial issues for a better future for our children and the motherland.

(The writer is a former Secretary of the BASL and Administrator of the Legal Aid Commission.)