Ex-IBA chief hits out at JSC
A judge like any other human being is entitled to a fair trial, former
president of the International Bar Association (IBA) Desmond Fernando PC,
said yesterday while condemning a statement issued by the Judicial Services
Commission in response to the IBA report on the judiciary in Sri Lanka.
"The image of the judiciary has been ruined by the comments of the JSC.
They have virtually said we sometimes ask judges to resign, you know, we
don't have any proper procedure, and if an allegation is made we don't
hold a proper inquiry, and we don't come to finding with reasons," Mr.
Fernando said strongly criticising the appearance created of what could
be called a "climate of impunity for judicial misconduct".
Mr. Fernando said:
"The main concern expressed by the IBA mission is that they heard claims
that judges have been removed from the service by the JSC or by the Chief
Justice without proper recourse to an inquiry or disciplinary hearing.
The delegation saw and heard these judges and they found the allegations
to be credible.
"Appropriate procedure is required, namely that the principles of natural
justice are followed. There must be a proper inquiry. I mean you're dealing
with the most important thing. You're holding a trial into an allegation
against a judge. And therefore it is very very important that there should
be a proper procedure and not something slipshod or ad hoc. So their main
concern was about the procedure.
"They have given a set of six cases, six instances where the proper
procedure does not appear to have been followed. In the reply of the JSC
none of these six cases has been referred to. They have written a long
rigmarole. And it is easy to identify these six cases, particularly the
last one, because there is a reference to the Chief Justice himself. So
why was it that they did not refer to these six cases? "Secondly there
is the question (raised by the JSC) of an immense delay, the report was
delayed for a month because the IBA was awaiting the response of the Government.
"Copies were sent to the Government and to the Chief Justice before
publication. And the practice of the IBA is to respond to whatever the
Government has to say and to publish the response sent by the government
along with the report at the same time.
"I was told that the report would be launched on the 26th and I was
asked whether I could have it launched in Colombo on the 26th. It was launched
in London on the 26th. But it was then delayed by three days because of
the Government and then the Government said we have nothing to say.
"They had over two months in which to give their reply. And they didn't
give the reply until a month after it was published. And that reply is
totally irrelevant. In addition they make highly improper suggestions about
the integrity of three persons who are highly respected by the international
community. One is Lord Brennan who is former Chairman of the Bar Council
of England and also acts as a judge in England.
"Then again, Mr. Kwai is the Chairman of the Bar Council of Malaysia.
And again, Justice Malimath who after being Chief Justice of Karnataka
was a member of the Indian Human Rights Commission. He is now Chairman
of the Commission advising the Government of India on amendments to their
criminal law. To allege that they did this out of some improper motive,
or that they were so immature that they were influenced by people here,
is I think utterly absurd. And also it brings the JSC itself into further
"The fact that they can make these baseless allegations against people
of high standing shows that basically they are not a group of people worthy
of the respect of the legal profession. Over the past one and a half years
the legal profession has had little respect for the JSC. Today after this
reply we have no respect whatsoever.
"IBA missions generally consist of people of the highest standing in
the legal world. We have sent missions to Kenya, Malaysia, Pakistan and
Peru. And it has been followed up as in the case of Pakistan and Kenya
with the Attorney General writing to us. saying 'we need your help how
can we remedy the situation?' Here, instead of taking a constructive approach,
they are taking a very destructive and negative approach."
Not misled by interested parties says IBA
By Nilika de Silva
The International Bar Association (IBA) in a three-page letter to the Judicial
Service Commission has refuted the JSC's charge that it was misled by "interested
parties" and re-iterated its call for an independent judiciary in this
Lord Brennan, who led an IBA fact-finding mission to Sri Lanka late
last year, responding to the JSC charge said that the JSC reply "entirely
fails to appreciate" the substance of the IBA report that emphasised the
need for reform of the JSC.
Earlier this week, JSC secretary A. W. A. Salam dismissed the IBA report
released last December as being a result of the delegation being "totally
misled by interested parties."
The JSC alleged the IBA mission had made damaging observations in regard
to the composition of the commission on the basis of incorrect or misleading
information furnished to it.
It went on to list detailed explanations to some of the findings of
the IBA mission.
The 54-page IBA report focuses on the period since 1999 and critically
evaluates the vulnerable areas in the legal and judicial system in Sri
Lanka during this period.
While the IBA report expressed concern at the apparent lack of accountability,
the breach of natural justice, the potential for undue influence and disregard
of appropriate and equitable procedures shown by the disciplinary measures
adopted, the JSC in its response justifying its actions cited several instances
where it had taken action.
"Three magistrates against whom charges had been framed and disciplinary
proceedings commenced before the commission opting to have themselves compulsorily
retired as a merciful alternative to dismissal and were accordingly retired,"
the JSC response said.
In its report released on December 1, the IBA delegation stressed the
"overwhelming need for an independent, credible judicial system".
The IBA is the world's largest organisation of lawyers with members
in 183 countries.