Focus on Rights

The judicial service commission and 'matters of conscience'
This week's disclosures that two of the three judges in the Judicial Services Commission have resigned their posts citing grounds of conscience, puts yet another of Sri Lanka's constitutional commissions in disarray.
The JSC had comprised Chief Justice Sarath Nanda Silva (Chairman) with senior Supreme Court Justice Shiranee Bandaranayake and Justice T B Weerasuriya. It is the latter two judges who have resigned from their positions.

In terms of Article 111D of the 17th Amendment, the JSC consists of the Chief Justice as Chairman and two other judges of the Supreme Court. Presidential appointment of its members (other than the Chairman) needs to be approved by the Constitutional Council. With the CC in abeyance, the JSC will now join the nefarious ranks of 'lapsed commissions' along with the National Police Commission (NPC) and the Public Service Commission (PSC).

The JSC is empowered, among other powers, to transfer High Court judges and appoint, promote, transfer, exercise disciplinary control and dismiss judicial officers and scheduled public officers. It also has the power to inspect any court of first instance, its records, registers and other documents maintained by it and to conduct such inquiry as may be necessary.

Interestingly, Article 111D in draft, initially stipulated that two of the seniormost judges of the Supreme Court should be appointed to the JSC along with the Chief Justice as Chairman. However, the phrase 'seniormost' was taken out at the final stages.

It was an open secret that, if this phrase had been retained and if the JSC composition had perforce to be changed thereafter, there was a possibility that the Court's seniormost judge, Justice MDH Fernando, would have been automatically appointed to the Commission.

This possibility was perhaps conceived to be so dangerous that the term 'seniormost' was taken out of the draft constitutional article 111D of the 17th Amendment. Regardless, Justice Fernando, one of Sri Lanka's most erudite judges who played a primary role in developing a body of jurisprudence restraining arbitrary executive and administrative action from the late eighties onwards, prematurely retired in January 2004, citing his reasons on record as being also conscience driven. These reasons were not linked specifically to the functioning of the JSC but instead related to a wider range of inhibitions coming into play in regard to the functioning of his judicial office.

It may be recalled that a petition signed by over two thousand of the country's key legal and other professionals, academics, activists and public servants expressing regret at this decision of Justice Fernando's and calling upon then Prime Minister Ranil Wickremesinghe to appoint a parliamentary commission to inquire into the circumstances surrounding his premature resignation, came to naught thereafter. This was due both to the vacillations of the United Front government and the actions of the Kumaratunga Presidency in dissolving Parliament later on in 2003.

Currently, the specific reasons compelling the resignations of these two judges from the JSC remain to be made public. However, a fifty four page Report of an observer mission of the International Bar Association (IBA) in August 2001 forms a useful background to this continuing controversy.

At that time, the IBA mission, examining the disciplinary powers of lower court judges by the JSC in particular, concluded that it was not confident that the judicial body was acting entirely without outside interference. Six examples where there had been an apparent lack of accountability, a breach of natural justice, the potential for undue interference and disregard of appropriate and equitable procedures were detailed. Crucially, the observers pointed out that a number of people were, in fact, reluctant to meet the IBA delegation for fear of repercussions. Its recommendations include the suggestion that the functioning of the JSC be made more accountable and available for public scrutiny.

The most recent resignations of the two JSC members have brought these issues into the public domain once again. Fundamental questions pertaining to the Office of the Chief Justice have been left pending for many years due to the perfidy of the country's two main political parties in greater or lesser measure. On the one hand, this has resulted in the Chief Justice being virtually put into the dock of public opinion without being given a chance to defend himself and prove the falsity of the allegations or in default thereof, to be held accountable.

Then again, these two parties had been primarily responsible for the delay in the constitution of the CC during last year. Now, with the five joint nominations of the Leader of the Opposition and the Prime Minister being communicated to the President last week, the responsibility has been transferred to the leaders of political parties not belonging to the party of either the Government or the leader of the Opposition, to make the remaining nominee to the CC.

The public deserves to know the reasons for the resignations of these two judges on 'grounds of conscience" and to have some accountability evidenced in this context. The immediate re-constitution of the CC is also imperative in order that all these dysfunctional independent commissions are put to right, at least relatively speaking. As Friday's statement by the Hong Kong based Asian Human Rights Commission (AHRC) points out, these must surely be matters that also challenge the conscience of the nation.

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