Focus on Rights

Referring the JSC resignations to parliament
A curiously piquant clause in the present Constitution (see Article 116 of the 1978 Constitution renumbered as Article 111C by the 17th Amendment), specifies dire sanctions including deprivation of civic rights for anyone who, "without legal authority" interferes or attempts to interfere with the judicial powers and functions of any judge.

Modelled on a similar provision in the preceding 1972 Constitution, (see Article 131), it imposes no new prohibition. However, an observer un-acquainted with the vagaries of constitutional language may be pardoned for reading those provisions in a manner as to endorse interference with judges by any person "with legal authority." This is a practical irony that any critical observer of the current crisis affecting the Sri Lankan judiciary can well appreciate.

Of course, now as then, interference with the 'powers and functions' of judges has seldom been so blunt as to bring itself within this prohibitive clause. That is not to say that such interference has been any the less dangerous or subversive. On the contrary, the creeping subtlety with which basic structures of the country's judicial system have been undermined has only been paralleled by its exceedingly dangerous coercive character. On some occasions, senior judges have been bold enough to speak out publicly as to what concerns predominate in this context such as former judge of Sri Lanka's Supreme Court, Justice CV Wigneswaran in recent times. But these occasions are regrettably quite few and far inbetween.

Some principles are very clear. The first principle is that in as much as a judge is expected to mete out justice to citizens, he or she also merits a basic measure of justice in relation to his judicial functioning. This rule of fairness applies in particular to disciplinary bodies supervising the minor judiciary such as the Judicial Service Commission (JSC) and departure from such a basic principle needs to be prevented forthwith. A useful case illustrating this principle was determined relatively recently by the Judicial Committee of the Privy Council on appeal from the Court of Appeal of Trinidad and Tobago. (See Rees v Crane [1994] 2 AC 173).

In this instance, Justice Richard Crane, a judge of the High Court of that country, was directed by the Chief Justice not to sit following receipt of complaints about the former. Later, the Chief Justice declined to include him in a roster of judges to sit in the following term. This was followed by the country's Judicial and Legal Service Commission, of which the Chief Justice was an ex officio member, agreeing with that decision and considering as to how the judge could be removed without noticing him.

Upon his application for judicial review of this decision in the courts, a majority of the Court of Appeal of Trinidad and Tobago concluded that the Chief Justice had no power to suspend or remove the judge from office except by the procedure provided by the Constitution. The majority decision was upheld by the Privy Council when the judgement was appealed against.

The reasoning of the Privy Council was very clear. It stated that the Chief Justice had no power to suspend or remove the judge from office except by the procedure provided by the Constitution. While the judges on appeal acknowledged that sometimes it would be necessary to move with speed in cases of allegations of misconduct, they pointed out that an individual judge was in "a particularly vulnerable position both for the present and for the future if suspicion of the kind referred to is raised without foundation." The judge whose duty was to accord fairness was also entitled to have fairness accorded to him in such a circumstance. Hence the essential duty of maintaining a principle of equity in such circumstances.

The various vicissitudes affecting the functioning of the JSC through past decades are well known to legal and constitutional analysts. External threats to its independence by the legislature and the executive are well documented. One of the most notable examples in this regard was the replacement of the old independent Judicial Service Commission under the Independence Constitution by a twin Judicial Services Advisory Board (JSAB) and Judicial Services Disciplinary Board (JSDB) through the provisions of the First Republican Constitution of 1972.

The JSAB had no right to appoint judges of the minor courts but only to recommend their appointment to the Cabinet of Ministers, while the JSDB had the power to exercise disciplinary control and dismissal of judges of the minor courts and state officers exercising judicial power. Political control over the JSAB was ensured by requiring that two of the five member commission of the JSAB be officers other than judicial officers; the actual appointees turned out to be, in fact, the Secretary to the Ministry of Justice and the Attorney General. Similarly, the decisions of the JSDB could be set aside by an appeal to the Cabinet, thus rendering their powers largely nugatory.

However, the second Republican Constitution of 1978 did contain many features that were a definite improvement on what had prevailed. The old JSAB and the JSDB, which had proved to be notoriously incapable of preventing political interference in the minor judiciary, were replaced by an independent JSC whose considerable authority was enhanced thereafter by the 17th Amendment to the Constitution. The interventions of the Constitutional Council in being empowered to approve the nominations of members to the JSC, (other than its Chairman), was also laudable.

Currently however, the continuance of even these theoretical guarantees of institutional independence is in doubt. The recent resignations of Justices Shiranee Bandaranayake and TB Weerasuriya from the JSC on 'grounds of conscience" only brought to the open, issues that had been underlying the surface for quite some time.

This week's call by advocacy bodies including the Bar Association, the Editor's Guild, the Organisation of Professional Associations and others, that a Parliamentary Select Committee inquire into these resignations is important in this context. Calls by Transparency International and the Asian Human Rights Commission for a committee of retired Chief Justices look into the matter upon a Parliamentary reference offers a less politicised alternative.

From another perspective, the very continuance of the JSC is in debate given the continuing non-constitution of the Constitutional Council. Though the 17th Amendment empowers the President to make an acting appointment for a period not exceeding fourteen days (see Article 41C(2) of the 17th Amendment), utilising this provision for a continuous period of time will create a precedent that will be extremely unfortunate if not violative of the constitutional provision both in spirit and in substance.

The need for the government and the opposition to respond seriously to the requests for a parliamentary initiated inquiry into the resignations of the two JSC members is without question as is indeed, their constitutional duty to forthwith set up the Constitutional Council. In the alternative, this may well turn out to be the virtual crucible at which the endurance powers of Sri Lankans committed to democratic processes may be tested.

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