7/17/2019 Independence of the Judiciary and the Bar Association on Hybrid Judges

http://slidepdf.com/reader/full/independence-of-the-judiciary-and-the-bar-association-on-hybrid-judges 1/6

Independence of the Judiciary and the Bar Association on Hybrid Judges

In Sri Lanka from the inception of the system ofgovernance, the principle of separation powers were in eistence and the threebranches namely the !ecutive, Legislature and Judiciary, preformed their duties inharmony ecept for few instances of turbulent situations" #hief Justice $evilleSamrakoon had differences with His !cellency J"%" Jayawardena who appointed himfrom the unofficial Bar to be the #hief Justice" He was an outspoken, honourable andfearless &udge who went through a turbulent period with the !ecutive"

by Sarath 'i&esinghe

Independence of Judiciary

( )ctober *, +-., #olombo, Sri Lanka /uardian0 Independence of Judiciary concernsthe entire &udicial system as, when the &udges are not independent, not 1uality and notliving up to the epectations, the administration of &ustice will collapse" Judges arecharged with the ultimate decisions over life, freedoms, rights, duties, and property of

7/17/2019 Independence of the Judiciary and the Bar Association on Hybrid Judges

http://slidepdf.com/reader/full/independence-of-the-judiciary-and-the-bar-association-on-hybrid-judges 2/6

citi2ens" 3he *th 4nited $ations #ongress called upon the #ommittee to createguidelines relating to the independence of &udges and selection of professional trainingand status of &udges and prosecutors" 3his system trickles down to all &urisdictionsworldwide" Judges are bound to decide matters before them impartiality on the basisof facts and in accordance with the law without any restrictions, or improperinfluences" )ur Judicial system is advanced and stands above any world system

though there were unfortunate black patches from time to time such as the era ofSarath Silva 5 the most controversial #hief Justice to lead the Judiciary in Sri Lanka"Supreme #ourt was established in -6- during 7ing /eorge and the great traditionsand reputation are maintained to date" )ur Judges and Lawyers have served in 4nited$ations affiliated bodies and governments respected by the world at the highestesteem" )ur Judiciary Is protected constitutionally and remunerated well with allfacilities up to the status and standings of a &udge who should be economically soundto maintain independence and independent from pressure from !ecutive or theLegislature" It is accepted that everyone shall have the right to be tried by ordinarycourts or tribunals using established legal procedures "3he term of office 5 their

independence, security, ade1uate remuneration, and conditions of service, pensionsand the age of retirement shall be , are fortunate to have &udges8&udicial system welle1uipped with all these ingredients second to no other country" 'e are now free from9rivy #ouncil and free to be tried by our own &udges who are conversant withoutculture and say of life" 3here is news of impeachment of two Supreme #ourt Judgeswhich is worrying as it will send wrong signals to the international brotherhood whenwe are in a controversial situation after having agreed to a compromised resolution onthe Human %ights issue" 3here were attempt to impeach $eville Samarakoon andSarath Silva which did not proceed to the end" As our superior and ultimate court is theSupreme #ourt, it is our duty to maintain the respectability and continuity of the

highest court established on -6- court structure and the system of administration of &ustice"

:earless JudgesIn Sri Lanka from the inception of the system of governance, the principle ofseparation powers were in eistence and the three branches namely the !ecutive,Legislature and Judiciary, preformed their duties in harmony ecept for few instancesof turbulent situations" #hief Justice $eville Samrakoon had differences with His!cellency J"%" Jayawardena who appointed him from the unofficial Bar to be the#hief Justice" He was an outspoken, honourable and fearless &udge who went througha turbulent period with the !ecutive" But that particular incident has not damaged the

continuity of eistence of separation of powers and the co;eistence among the threebranches of the /overnment" Impeachment of !< #J Shirani Bankaranayaka was anunfortunate situation which should not have taken place" =oung and energeticacademic &udge was misdirected and misled by left oriented political party and somelawyers backed by $/)>s with different and political agenda" %emoval of !< #J?ohan 9eiris 5 an ecellent Judge and a leading versatile lawyer by a mere letter fromthe !ecutive on the basis he was not properly appointed as the #hief Justice is themost unfortunate blot in the annuls of the Supreme #ourt history" Apart from these

7/17/2019 Independence of the Judiciary and the Bar Association on Hybrid Judges

http://slidepdf.com/reader/full/independence-of-the-judiciary-and-the-bar-association-on-hybrid-judges 3/6

isolated incidents since -6-, we can be proud to be one of the advanced andindependent &udicial systems in the world with great &urists in the calibre of Justice9rofessor 'eeramanthrie who was elevated to the position of the @eputy 9resident ofthe 'orld #ourt" In short we are blessed with &udges of world standard to cater theneeds of this educated $ation"

Legal systemSri Lankan legal system was originally a combination of %oman @utch and !nglishLaw" 3he present system of &udicial administration and organi2ation is based on thecurrent #onstitution introduced in -6 apart from the personal laws in eistence" $ochanges to the &udicial system were made under the recent changes to the#onstitution with the changes of the government towards /ood /overnance popularlyknown as C=ahapapalayaD" 3he Judiciary comprises of the Supreme #ourt, #ourt of

 Appeal, 9rovincial High #ourts, @istrict #ourts, ?agistrates #ourts and 9rimary#ourts" 3he Supreme #ourt is the highest court headed by the #hief Justice of andother &udges" Infringement of any fundamental rights declared and recogni2ed by#hapter E or F will have a remedy where Article -+* of the #onstitution has eclusive

 &urisdiction to hear and determine any 1uestions relating to infringement or imminentinfringement by an !ecutive or administrative action" Human %ights activismgradually developed the human rights &urisprudence, with the knowledge on#onventions #ovenants and Human %ight instruments which are being directlyindirectly and tacitly imported to Sri Lanka" #omparatively Sri Lanka has largestnumber of $on;/overnmental )rgani2ations ($/)>S0 Human rights Activists)rgani2ations in a developing country" $/)s found Sri Lanka a fertile ground to liveand en&oy being one of the most beautiful and islands in the world with affordable costof living for their $/) activism" Some were engaged in religious conversions mainlyconcentrated in villages, some engaged in business en&oyed the luury of the country

with powerful dollars and pounds against Sri Lankan rupee" It has been the generalbelief that they have misused the polite and good nature of Sri Lankan and economicbackwardness of the rural polite"

Judiciary and the Bar AssociationBar Association is the only recogni2ed professional body for Lawyers who willatomically be enrolled as a member of the BASL as a right on the enrolment as an

 Attorney;At;Law of the Supreme #ourt" BASL membership is eclusive for the lawyers"It is a powerful profession consist of members who are etremely powerful in thepolitical business administrative and &udicial arenas" Judges are selected among thelawyers and promoted to the higher positions on seniority" Attorney /eneral is theleader of the )fficial Bar and the 9resident of the Bar Association is considered to bethe leader of the unofficial Bar" 3herefore BASL is epected to maintain independencewhich they &ealously guard and protect until recently when there are attempts to importpolitical affiliations and eternal interventions indirectly and tacitly" BASL appear tohave taken part in the %egime change process led by then leadership by makingstatements, organi2ing press conferences on matters outside the purview of the BASL,for which they appear to be amply compensated" 3he union of the Bar Association withthe American !mbassy has raised the eyebrows of the membership and the public as

7/17/2019 Independence of the Judiciary and the Bar Association on Hybrid Judges

http://slidepdf.com/reader/full/independence-of-the-judiciary-and-the-bar-association-on-hybrid-judges 4/6

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"@ealing with !mbassies and receiving funds and assistance is prohibited andunprofessional by this most respected and respectful profession and professionalsproud of being independent" Sorry state is the silence of the membership anden&oyment the privileges and foreign funds with no hesitation as fat cat $/)s powerful

in Sri Lanka" 'e should maintain friendly relations with our close friend 4SA with carewho is a world power with hidden motives and agendas in favour of their $ation as it isnatural for them to be pro 4SA as much as we are pro Sri Lankan" As an independentprofessional body we should be whiter than white and be cautious with dealing withpowerful world powers"

Hybrid Judges3his is a term used after the proposed resolution of the 4$ High #ommissioner ofHuman %ights on Sri Lanka in view of the annual human right sessions" 4$ Human%ights #ommissioner proposed international &udges when Sri Lanka proposed#ommonwealth and foreign &udges; not international &udges to the Hybrid courtssuggested by the proposals" It is difficult to differentiate foreign and #ommonwealthJudges from international &udges as any way the foreign and commonwealth &udgestoo are international &udges" 3he High #ommissioner of Human %ights in the 4$ is a9rince from Jordan 5 a ?iddle !ast Islam State headed by 7ing Hussain 5 a close allyof 4SA epects Sri Lanka to import international &udges from other &urisdictions, whenwe maintain highest &udicial standards on legal education in our respected andsophisticated legal system second to no country in the /lobe" 'hen Sri Lanka isarmed with a highly developed legal, administrative, and a system of governance withan educated workforce and &urists above many Asian counterparts, it is unnecessaryto import foreign Hybridge Judges whose thinking is different and has pre&udicial

briefings by interested parties" 'e are on a bad wicket now as we have alreadyagreed in principles for the resolution adopted in the Human %ights #ouncil agreeingto foreign &udges and &urists to intervene and interfere with the newly proposed hybridmechanism" 'e are self;sufficient with the highest standards on legal knowledge

 &urists advanced legal and administrative system no second to any part of the world"

?easures by the BASL on %egime #hange processBASL was active in political activism with the media by organi2ing press conferencesand issuing statements on the matters outside the purview of the BASL ob&ects andtraditional duties" 3he previous BASL administration was vociferous and active onregime change process for which they are amply compensated by the appointment8sof the most powerful financial and investment organi2ation in the Business world in SriLanka" $ow that Sri Lanka has agreed on a mechanism with Hybrid Judges there willbe additional funding from the international brotherhood of G EE"6 for theimplementation mechanism of the resolution, for Judges, Lawyers, 9rosecutors courtsystems and implementing centres with a #olombo )ffice and branches with staff with@iplomatic immunity to implement the decisions taken and to implement themechanism" But as the 4$ !4 and internationals are slow in action, tis mechanism isbound to be the same and there is a possibility to take a long period as has taken

7/17/2019 Independence of the Judiciary and the Bar Association on Hybrid Judges

http://slidepdf.com/reader/full/independence-of-the-judiciary-and-the-bar-association-on-hybrid-judges 5/6

place in similar mechanisms in the other parts of the world" )ur eperience in suchinternational courts is that it takes few decades for the completion of the trials and themechanism will be in Sri Lanka with all facilities and diplomatic privileges until the endof the trials and even thereafter to supervise the implementation as envisaged in theresolution"

BASL leaders may have taken the cover of Article + # states as follows,“3he consideration of matters of national importance relating to the rule of law andadministration of &ustice and if need be, making of representation thereon to the/overnment and8or any other relevant authority and taking any further steps in respectthereof including faking of actions and intervening in actions in #ourts of &usticeD 3he?)483rust @eed entered into may have been under the cover of this clause as allother ob&ects of the BASL are on the membership and connected matters" $ever in thehistory of the Bar Association and the Law Society this kind of activism has takenplace outside the preview of the professional body and it is time to be cautious in thefuture to be whiter than white"

4S Aid :unds for the Bar Association4S Aid @evelopment :unds for the Bar Association 5 ?)483rust @eed appear to havesigned between the BASL and the 4SA Ambassador Her !cellency ?ichale Sission,then Ambassador on 4SAI@ scheme to help civil society initiatives, strengthendemocracy, democratic institutions, rule of Law, help administration of &ustice andvaried matters" !normous sums of funds have been pumped to BASL, which iscontinuing to date with staff currently working hand in hand with BASL staff" 3hedanger is the possibility of free access to the @ate Base and important confidentialinformation of the members of this powerful professional body consists of mostpowerful personalities in Sri Lanka including the !ecutive, Legislature and &udiciary

which is a worrying situation" 'here the 4SAI@ staff on this pro&ected is stationed is amatter of an important topic at Hulftsdoorp" Is it safe for us to epose our data basesand important information of the most powerful professional organisation with mostpowerful personalities in the country to an outside interested parties is a matter wehave to consider in a broader spectrum outside political racial and otherconsiderations"

'ay :orwardIt is time for the BASL, )9A, and other professionals8organisations and nationalminded civil society to plan out a strategy to sale through this difficult voyage on ourdecisive era in the main cross roads in our history keeping all political and otherdifferences aside in the interest of the $ation in crisis" It may be that the peopleconcerned needs guidance and directions of the professionals and intellectuals whenthe governance is lacking in such row materials and ingredients" 'e have a battery ofcompetent and world reputed intellectuals and educated in Sri Lanka and worldwidewho will be prepared to assist the #ountry" Lawyers and 9rofessional have a main roleto play in this crisis" If we are trapped to interested parties and world powers, it will befor ever as the international instruments enforced in the guise of the resolution willhave a long term binding effect on us for which we are too weak to resist or to correct

7/17/2019 Independence of the Judiciary and the Bar Association on Hybrid Judges

http://slidepdf.com/reader/full/independence-of-the-judiciary-and-the-bar-association-on-hybrid-judges 6/6

in future" 'e deal with human beings who are selfish and have strong love towardstheir nations" Leaders of counties and international organisations are selfish tothemselves, their countries and organisations as their primary concern is them theircountry and rest secondary"

3herefore we have to take our own precautions for which we are competent" 'e were

cheated by 9ortuguese, @utch and British" India imposed us the Indo Sri Lanka Accordwith the power of the Indian army and the regional power" :3A and the proposed#!9A with India may be a C3rogon HorseD with a threat of indirect invasion foremployment and business 'e are a fortunate beautiful country eisted over fivethousand years net to a giant neighbour still independent and leading as aprosperous developed country leading to be a leading H4B in the Indian )cean" 3hereare no comments by the Bar Association, )9A, or from the civil society ecept forhandful, on the :3A, water, &unk food, environment pollution in large scales and #!9Awhich will have direct effects on the lawyers and professionals, and the 4$ resolutionon Sri Lanka proposing Hybrid Judges and number of proposals which involves directand indirect eternal 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 ofthe nation without petty political or racial issues for a better future for our children andthe motherland"

( 3he writer, former Secretary of BASL and Administrator of the Legal Aid #ommission,He also severed as the Sri Lankan envoy to Israel and 4A!0

Posted by Thavam