opinion

Something for the legal fraternity to seriously consider 

2 August 2019 - 240   - 1

When appointments are made to the Higher Judiciary, Attorney-General and even the public service, regarding key positions, there is a growing tendency for some members of the public and some others in the profession very often to be skeptical or at times cynical.


By Justice Anil Gooneratne (Ret. Judge of the Supreme Court)

When appointments are made to the Higher Judiciary, Attorney-General and even the public service, regarding key positions, there is a growing tendency for some members of the public and some others in the profession very often to be skeptical or at times cynical.

This is also so when attorneys-at-law are appointed from the unofficial Bar as presidents counsel. Perhaps some of the legal luminaries in the profession who are genuinely interested to maintain high standards in the profession, maybe disturbed and express their concerns of some of the appointments, done so based on political affiliations. 

Let us understand the role the judiciary, Attorney-General, and the President’s counsel needs to play in the society as all three institutions are answerable to the civil society, more particularly the Judiciary. A benchmark that needs to be maintained throughout one’s Judicial career is to be independent, unbiased, and fearless. Further, in today’s context-free of corruption. The Hon. Attorney-General and his Officers in the Dept. has a ‘quasi-Judicial’ role to play. Hon. A.G is the Chief Legal Officer of the state, and he needs to advise and guide the Government on legal matters correctly and properly without supporting political views, detrimental to the nation.

I would also add that persons holding key positions in the public service need to act responsibly according to rules and regulations, in the larger interest of the general public, without any political affiliations. The president’s counsel nominated and appointed, need to be Ladies and Gentleman who are highly recognized in the profession, and those who have shown their capabilities in the civil, criminal, and commercial branches of the legal profession, and only those engaged in active practice in the law courts and persons with a reputed academic background, should be considered.

This is where his Lordship the Chief Justice, Hon. Attorney-General, and well recognized senior President’s Counsel from the unofficial Bar need to express their views regarding appointees to make the best choice, keeping in mind not only one’s ability in the legal profession, but from amongst those who bear a good moral character. It is so because learned members of the legal profession come into contact with society very often, whereas Judges should not mingle with society. As such learned President’s Counsel earn and maintains the respect of all members of the public and society, irrespective of one’s strata in life. 

I would like to refer to an extract of a speech made by Former Chief justice Hema Basnayake QC referring to, prescribing norm or standards contained in the ‘Ceylon Judicial Service’, proceedings of conference dated 6th December 1963 before I delve into other areas of this topic. This would concern Judges at every level, yet all others in the legal profession will have to be mindful of the same. The following extract though prolix reads thus.

“The judiciary of this country, as the chairman observed, enjoys a high prestige and is the pride of every citizen. One often hears the remark that standards have fallen in every sphere but in the Judicial sphere. This high prestige that the Judges enjoy carry with it a great responsibility to safeguard that prestige and preserve it. It is founded on public opinion, as all matters of this nature are founded. The public have found that in the Judicial sphere there is fair play and justice.

A long heritage of Judges who have performed their duties without fear or favour, affection or ill-will, has built up that respect. Constant vigilance and care on our part is needed to preserve that. Let me refer to just a few rules of Judicial conduct that call for attention. The very nature of a Judge’s functions requires that he should maintain reserve and aloofness, that others engaged in public duties need not observe. He has, of necessity, to adapt a way of life which will not thwart the confidence of the public who are ever watchful of every step he takes.

For example, if a Judge goes too often to the club in his town, it is observed; and if his visits are too frequent, it is remarked. There was once a Judge in a provincial town who went to his club almost daily and engaged in drinking with the same set of members of the Bar. Before long, complaints reached the authorities that these members of the Bar gain an advantage which others did not have, and the people got the impression that if they retain those members of the Bar gain an advantage which others did not have, and the people got the impression that if they retain these members of the Bar, they would get a better hearing and perhaps a favorable verdict.

Now, that is a very important thing to remember in some outstations.  The Judge is invited to be an honorary member of the most important club. If you are invited, by all means accept the honour, but avoid going too often to the club and being seen together with members of the Bar, like any other matter, too often. I don’t think that you should be unsociable; but the dangers of being sociable are greater than even the dangers of being unsociable. Members of the Bar who are inclined to exploit close associations with a Judge are not unknown.

So that even frequent visits to the houses of the members of the Bar should be avoided because the lay mind is unable to understand a situation in which a Judge can associate with another and not have any communication with him in regard to his Judicial work. So that, as the prestige and the confidence which the judiciary enjoy is founded on public opinion, we must alwaysbe alive to what the people think and what inferences, however wrong they may be, that may draw from the association of the Judge with others.

The public officials of some of the provincial towns have a tendency to form a club and they often strive to draw the Judge into that group. That is another danger. A Judge should not allow himself to be drawn into the group of public officials, although he also may properly be described as a public official, because those officials are members of the Executive who would have legal business in the Court over which he presides; and again, the members of the public, being unable to discriminate between the Judge’s personal relations and his Judicial work, Would draw the inference that, for example, the public Officer enjoys a special place in the Judge’s mind and that he gets an advantage which the ordinary citizen does not have.

So, it is best that a JudicialOfficer should avoid being a member of this group if there is such a group in his town and keep to himself. That trite saying that familiarity breeds contempt should not be overlooked by Judges. It is important to remember that laymen do not understand the rules of Judicial conduct and are inclined to make use of the fact that they know the Judge. So much for the Judge’s relations with others.”

On the question of courtesy and politeness, Chief Justice Basnayake QC remarked as follows: “It is very necessary that a Judge should be courteous and polite. He thereby enhances the dignity of the court and the dignity of justice. There have been occasional complaints of rudeness and the use of rough language on the part of the Judges. Rudeness and rough language are unbecoming of a Judge, and every effort should be made to avoid such inclinations or tendencies. The old saying that the law is no respecter of persons means that the law respects all persons equal, not that there are some who are not respected.

So that when a person comes into Court, he should know that he is given a certain amount of respect. There is a tendency, through unconscious, to applaud any discomfiture that befalls a man of position or wealth. For instance, if a man of position is in the witness box and is cross-examined, the tendency on the part of the majority of the Court is to take delight over his discomfort. Now a Judge should avoid adding to that discomfiture of anybody in the witness box because the Judge’s function is to safeguard the witness.

The evidence ordinance especially vests in him the power to decide what questions to be put to a witness.  A witness who is roughly handled in the witness box deters others from entering the witness box. We all know that it is not easy to get witnesses by in any matter; even among the educated, there is great hesitation to volunteer to give evidence in a case. It is the duty of the Judges to encourage the public to seek the forum, the only forum in which the disputes of the citizen can be settled in an orderly way. You would have often heard a witness say as a matter of special qualification: “I have never stepped into a court of law, even as a witness.”

Now that is a great slur on our administration of justice. That the public should think that stepping into a Court of law is a disqualification. Further, it is up to us to protect those who seek and invoke the aid of the courts and it is up to us to make the administration of justice satisfactory by creating an atmosphere in which any person would not hesitate to come forward as a witness and give all the facts which he has seen or heard.

The extract of the above speech needs to be considered and kept in mind not only by Judges at all levels, but  is a lesson to all those in the legal profession to constantly remind ourselves of the same and ensure that the administration of justice is taken on its correct path, to serve the litigant according to law, and for whose benefit courts are established. 

President’s Counsel

Let me open the topic of President’s Counsel. In terms of article 33 (2) (e) of the constitution, The President shall have the power to appoint as President’s Counsel, attorneys-at-law who have reached eminence in the profession and have maintained high standards of conduct and professional rectitude. Every President’s Counsel appointed under this paragraph shall be entitled to all such privileges as were hitherto enjoyed by Queens’s Counsel; 

Then again as per article 169A which relates to Queen’s Counsel and senior attorneys-at-law reads thus:
136 [169A. (1) Every –
(a)    Queen’s Counsel appointed prior to the coming into force of the Constitution ; and
(b)    Senior attorney-at-law appointed by the President after the coming into force of the Constitution
Shall, from the date on which this Article comes into force, be called and known also as President’s Counsel and shall continue to enjoy all such privileges as were hitherto enjoyed by a Queen’s Counsel. 
(2) Every rule made under Article 136 relating to the appointment of Senior attorneys-at-law, from the date on which this Article comes into force, be deemed to be rescinded. 
(3) Every reference in any written law to “Senior attorney-at-law” shall, from the date on which this Article comes into force, be deemed to include a reference to “President’s Counsel”

It is the President of the country who appoints President’s Counsel. The necessary qualifications according to the above articles in the constitution, to appoint attorneys-at-law, would be:
(a) Those who have reached eminence in the profession 
(b) Have maintained high standards of conduct and professional rectitude.

(a)  and (b) above would be the criteria of selection by the President of Sri Lanka

The words above referred to as “Reached eminence” and “Maintained High Standards of Conduct and Professional Rectitude” need to be viewed objectively and not subjectively. Further all President’s Counsel enjoy all privileges as were hitherto enjoyed by Queen’s Counsel. It demonstrates a comparison with Queen’s Counsel, the origin being from the United Kingdom. In the yesteryear there were many Queen’s Counsel who were Sri Lankan, actively practicing in our Courts. I could name a few of them that come to my mind and was fortunate to see some of them in active practice many years ago. To name a few:

  •     C. Thiagalingam Q C
  •     P. Navaratnarajah Q C
  •     Vernon Wijetunge Q C
  •     D. Neville Samarakoon Q C
  •     H.W Jayawardena Q C
  •     G.E Chitty Q C
  •     N.E Weerasooriya Q C
  •     E.G Wickramanayake Q C
  •     H.V Perera Q C
  •     N.K Choksy Q C
  •     T.S Fernando Q C
  •     Lalitha Rajapakse Q C
  •     S. Nadesan Q C
  •     Hema Basnayake Q C
  •     Victor Tennakoon Q C

The above-named gentleman are persons well recognised and who reached eminence in the profession. Further, their contribution to the profession cannot be disputed at all. It is certainly not my function to compare standards with the present day lot of learned President’s Counsel. What is conveyed is the high standards and quality that is required to be maintained and required to be considered to be appointed as President’s Counsel. In the above Articles of the Constitution, the criteria are very well laid down. Failure to adopt the above criteria would be damaging to the entire profession. 

The best results would be expected if the President of the country seeks legal advice and consults knowledgeable recognised professionals before making such appointments. I have already stated that a team comprising of His Lordship the Chief Justice, Hon. Attorney-General, and a few respected senior President’s Counsel would be an ideal choice to assist the President in his task as per the above Articles in the Constitution. 

I would also wish to consider the position of Queen’s Counsel. However at this point it is emphasized that a counsel in a Court of law has to be concerned of the following.

The object of counsel appearing in Courts of justice, is to render assistance to Judges. It is their duty when they see a Judge making a palpable error, to point it out to him 7NLR 42. They must refer the Court to all decisions relevant to a point under discussion 27NLR at 69. In this connection there is a greater responsibility by a President’s Counsel to assist Court if Court seeks clarification on a legal issue, even if he is not retained in the particular case for which Judge seeks clarification.

Any Judge presiding in a Court of law could seek the assistance of the Bar if the Judge so desires. If there is a President’s Counsel present in the Court, when the learned Judge poses the question, it is the duty of the learned President’s Counsel to assist the Court. It is so because all President’s Counsel are required to have reached eminence in the profession and deemed to be very learned in the law. This has happened over the years in our Courts, where a Judge turns to the Bar for assistance. 

The basic law of the country equates President’s Counsel with Queen’s Counsel. This is so because of high standards maintained and counsel has reached eminence and would be excellent in relation to advocacy in Courts which demonstrate competence relevant in practice. 

Who is a Queen’s Counsel?

In recognition of excellence and experience, the Queen annually appoints the lawyers to be one of “Her [or His] Majesty’s Counsel learned in the law”. It is worth remarking that when the Sovereign is the King then an order of the Privy Council translates all Queen’s Counsel into King’s Counsel. QC status is connected with formal privileges and fees charged, which would be discussed later. – [London school of economics and Political  Science – Free law essays – published Friday 2nd February 2018]

On precedence – Halsbury’s Laws of England 4th Edition Vol.3  pages 611 – 612 – Paragraph 1128
There are certain rules governing the precedence or pre-audience of counsel. The right of audience in Court is conferred by the Inns of Court: The right of pre-audience or precedence is conferred by the crown. 

The English Bar is divided into two ranks

(1)    Queen’s Counsel – Who wear silk gowns and sit “within the Bar” in the Supreme Court, and are called leading counsel, Silks or Leaders. 
(2)    All Barristers who are not of that rank, who sit outside the Bar, wear stuffed gowns and are called Junior Counsel or Juniors. 

The Attorney-General takes precedence on all other Barristers within the Supreme Court. Next to him comes the Solicitor General, then comes Queen’s Counsel, who rank among themselves according to the date of their patents. Law Officers, on relinquishing their office, revert in point of precedence and pre-audience in the courts to the position conferred upon them by the patent which appointed them Queen’s Counsel. 
Paragraph 1129. Leaders and Juniors. 

A Queen’s Counsel ought not to appear as an advocate in any Court of law without a junior, but where he appears elsewhere as an advocate, whilst it is generally desirable that he should have a Juniour, there is no rule of the profession requiring him to do so unless a Juniour has been employed in the preliminary proceedings. A Queen’s Counsel appearing other than in a Court of law has a discretion as to whether or not he will appear if a Junior Counsel is not also briefed. 

The above material would demonstrate the importance that is required to be nominated and appointed as a Queen’s Counsel. As such, in terms of our Constitution that requirement of a President’s Counsel cannot fall short of a Queen’s Counsel, ability, as an advocate. If decisions are made due to political affiliations it would be disastrous to the profession and thereby the society Is bound to lose confidence in those appointees who had a political backing. All of us in the profession need to safeguard the best interest of the profession for the sake of the legal profession. 

Higher Judiciary

Next comes the all-important Judiciary, more particularly, the superior Courts. The welfare of the country really depends on the proper way justice is administered. It is the duty of the legal profession, in the same way they assist Court, to ensure that competent career Judges as well as senior Officers of the Attorney-General’s department and able counsel from the unofficial Bar who are very conversant in the law and practice, are considered for appointment in the Superior Courts. 

In today’s context, one way to safeguard the Judiciary is to protect it from unnecessary political maneuvers, in the appointment process that tarnished the image of the Judiciary. The Judiciary of our country has a very long history. The wealth of legal literature contained and published in very many law reports of the past and the present would no doubt bare testimony to an in-depth learning of our Superior Courts of the law for over a century by Judges who pronounce judgements, on a variety of subjects. In this regard both Judges and lawyers have a vital role to play, as it has been very often said in the ceremonial sittings of the superior courts, that a strong bar will make way for a strong bench. One must not lose sight of the fact that Judges, as well as lawyers, must put their legal education and training for the benefit of society.
    
Therefore, the higher Judiciary should consist as observed above essentially from those who should have the expertise, experience, and knowledge acquired over a period of time amongst from career JudicialOfficers, Senior Officers of the Attorney-General’s Dept. and able members of the unofficial Bar. This is the manner to blend and maintain the required balance in the Superior Courts which has happened and maintained for over a century, in our country. This balance needs to be maintained for dispensation of justice by the Higher Judiciary.

The Supreme Court bench consists of three Judges. It is the final appellate jurisdiction vested in the Apex Court according to the Constitution. The majority decision of the bench prevails, however, His Lordship the Chief Justice could on a proper application or consider it desirable, he could appoint a fuller bench as per the Supreme Court rules of 5 or 7 Judges or the entire bench to hear a case.

The appeals and applications to the Supreme Court would comprise of several subjects and it gives finality to litigation. It has within it’s powers been vested by the Constitution, the Superior Court of record with exclusive jurisdiction in respect of final appeals, Constitutional matters, determination of bills of parliament, fundamental rights, writs, consultative jurisdiction, rule matters, breach of privilege of parliament and a variety of subjects. In very many of the above cases Hon. Attorney-General has to be noticed and has a right to be heard. This is a Constitutional requirement. Jurisdiction of the Court of Appeal, as provided in terms of Article 138 of the Constitution, exercises jurisdiction inter alia on writs, tax (case stated), revision/restitio integrum, criminal appeals to the Court of Criminal Appeal (CCA), civil appeals, election petitions etc.  Court of Appeal is the only other Superior Court of the country. The appointments to both the Court of Appeal and the Supreme Court are constitutional appointments. The appointment of Judges to both these Courts would be subject to the approval of the Constitutional Council, before the appointments are made by his Excellency the President (Article 107 of the Constitution).

In the process of pre-selection to the Higher Judiciary as stated above, it is desirable also to choose from aspirants who display independence, unbiasedness, and fearlessness, which could be fathomed from their professional obligations and performance prior to appointment in the Judiciary.

All the above qualities need to be traced, and those responsible to recommend higher Judicial appointments i.e – His Lordship the Chief Justice, Hon. Attorney-General, Senior President’s Counsel (If necessary) from the unofficial Bar, should primarily direct their attention to the above stated benchmark, along with and supported by one’s experience, expertise and knowledge. In this regard, the higher authorities who make recommendations should not entertain any prejudices of a candidate for totally extraneous reasons. The process of preselection as above is all important to be appointed to an exalted office as the Judiciary. It is also essential to have persons who bear a good moral character. 

The consultative process is very important and essential prior to appointment to obtain the views of His Lordship the Chief Justice, Hon. Attorney-General, and even very Senior President’s Counsel (limited to 2 or 3) all of them are conversant with the activities of a court of law, and competent to remark and comment of an appointee. Even Court activities in the provinces are known to the Hon. Attorney-General and the Lordship the Chief Justice. Hon. Attorney-General has his representative appearing as State Counsel (supervised by a senior) in all provinces in the country. His Lordship the Chief Justice is the Chairman of the JudicialService Commission, and has overall control of Judges in all courts in the island, This would enable the selection of Superior Court Judges with expertise, experience, and knowledge. 

The constitution as in chapter XV made provisions for “the Judiciary”. Article 105 refers to the establishment of Courts, which include the power of punishment for contempt of Court,  whether committed in the Court itself or elsewhere, with imprisonment or fine, or both. It also contemplates a public sitting [Article 106(1)] and it also could exclude persons [Article 106(2)] as are not directly interested in the proceedings therein, if it is desirable -   

(a) In proceedings relating to family relations
(b) In proceedings relating to sexual matters
(c) In the interests of order and security within the precincts of such court, tribunal or other institution,

Exclude therefrom such persons as are not directly interested in the proceedings therein.

The rest of the provisions in the said chapter contained in Articles 107 to 111c refers to the independence of the Judiciary, this includes provisions for appointment and removal of Judges of the Supreme Court and Court of Appeal, salaries and pensions of Judges of the Superior Courts and inter alia makes interference with the Judiciary an offence [Articles 111(c) (1) (2)].

It is also observed that contempt of Court proceedings are found in the Procedural Codes and other statutes which makes contempt and offence, under certain circumstances, such as disobedience of orders made by Court. 

The concept of independence of the Judiciary is so well connected to the Judiciary and is integral to the Judicial system. It has come under pressure at different times if one examines our Judicial history. Any attempt to curb the independence of the Judiciary needs to be resisted by any civilized society. The legal profession needs to rally around the judiciary if and when Governments seek to bring pressure on the Judiciary to manipulate orders and judgements in favour of the Governments. It has happened in the past and it is unfortunate and damaging to the existence of the Judicial system. To bring more clarity to what is stated above, I would quote an excerpt from a report of a seminar held in Kathmandu during the 1st to the 5th of September 1987, the theme of the seminar being “Independence of Judges and lawyers in South Asia” pages 37/38 reads thus: 

The government in most of the Third World countries is the largest single litigant in the whole country. If this litigant can select Judges suitable to itself then that would be the end of the Judicial system. 

In the memorable words of Sir Winston Churchill while speaking in the House of Commons as the Prime Minister of England:

“The Principle of complete independence of the Judiciary from the executive is the foundation of many things in our life. The Judge has not only to do justice between man and man, he has to do justice between the citizens and the State. He has to ensure that administration conforms with the law and to adjudicate upon the legality of the exercise by the executive of its powers.”

The concluding observations of the above seminar at pages 50/51 contemplates another valuable comment and a valuable observation to those who aspire to be judges from whatever branch of the legal profession. It states: 
                
The Judiciary depends for its effectiveness on the public confidence that it enjoys, for as it was eloquently expressed by a distinguished U.S Supreme Court Justice: 
                
“The Judiciary has no army or police force to execute it’s mandates or compel obedience to it’s decree. It has no control over the purse strings of Government. Those two historical sources of power rest in other hands. The strength of the Judiciary is in the command it has over the hearts and minds of men. That respect and prestige are the product of innumerable judgements and decrees, a mosaic built from the multitude of cases decided. Respect and prestige do not grow suddenly; they are the products of time and experience. But they flourish when Judges are independent and courageous”

To earn public confidence Judges must in the last analysis have the moral and intellectual fibre which must sustain their own spirit of Judicial independence, as is wisely acknowledged by a Supreme Court judge of the South-Asian region: 

“But if the Judiciary should be really independent something more is necessary and that we have to seek in the Judge himself and not outside. A Judge should be independent of himself. A Judge is a human being who is a bundle of passions and prejudices, likes and dislikes, affection and ill will, hatred and contempt and fear and recklessness.

In order to be a successful Judge these elements should be curbed and kept under restraint and this is possible only by education, training continued practice and cultivation of a sense of humility and dedication to duty.

These curbs can neither be bought in the market nor injected into the human system by the written or unwritten laws. If these things are there even if any of the protective measures provided by the Constitution and the laws go, the independence of the Judiciary will not suffer. But with all these measures being there, still a judge may not be independent. It is the inner strength of Judges alone that can save the Judiciary” 

What I simply wish to convey in this essay in part, is the way appointments to the higher Judiciary should be done, and once appointed perform without fear or favour by their Lordships and Ladyships of the Court of Appeal and the Supreme Court. I have gathered from VERB. SAP. Referred to in the text of Dr. A.R.B Amarasinghe, “Judicial conduct ethics and responsibilities” which are relevant to the matters under discussion and the following may be noted. _xvii

Judges…are not beholden politically to the Government of the day…they…see governments come like water and go with the wind. They owe no loyalty to ministers, not even that temporary loyalty which civil servants owe, Coke said that Bracton said that the king ought to be under no man but under god and the law. Prohibitions del Roy, (1607) 12 Co. Rep. 63, Judges are also lions under the throne but that seat is occupied in their eyes not by the Prime Minister but by the law and their conception of public interest. It is to that law and to that conception that they owe allegiance. In that lies their strength and their weakness, their value and their threat. J.A.G. Griffith, the politics of the Judiciary 4th ed, 1991, p.276.

The one absolute condition required of a judge is a free mind, untrammeled in Judicial action by foreign or irrelevant interests, relations or matters which might colour or distort judgement. I.C. Rand, Q.C., Commissioner in the inquiry re Justice Leo A. Landreville, 1966. 

No state is safe with a subservient Judiciary. It is the bane of a country, and it enfeebles a nation and makes cowards of its citizens. Hema Henry Basnayake, Chief Justice of Ceylon, 31st July 1964.

“I will not do that which my conscience tells me is wrong, upon occasion, to gain the huzzas of thousands or the daily praise of all the papers which come from the press ; I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow … Once for all, let it be understood that no endeavours of this kind will influence any man who at present sits here. Lord Mansfield, Lord Chief Justice of England, R. v Wilkes, (1770) 4 Burr. 2527 2526.

Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what is right. Lord Denning, Master of the Rolls, R.v Commissioner of Police of the Metropolis, ex parte Blackburn (No. 2) [1968] 2 Q.B. 150.

As a solid rock is unshaken by the wind, even so the wise are unshaken by praise or blame. The Dhammapada, Verse 81.

All we would ask those who criticize us will remember that, from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Lord Denning, R. v Commissioner of Police of the Metropolis, ex parte Blackburn (No. 2) [1968] 2 Q.B. 150, 158.”

I wish to state that Judges in Sri Lanka are fortunate to be able to find enough and more legal literature, case laws, authorities in text books by our own Jurist who brought fame and honour to our country to be described as ‘world famous’. Amongst all those great writers is Dr. A. R. B. Amarasinghe, a former Judge of the Supreme Court who was the author of “Judicial Conduct Ethics and Responsibilities”. This text should be kept as the Bible of the legal profession and more particularly for the Judges of Sri Lanka. This book encompasses all the relevant details required for a Judge.

I have noted the following few excerpts from the above texts that should be understood and followed in the process of appointments and dispensation of Justice. One should bare in mind that it is the civil society that is the most important and valuable to the Judiciary at the legal profession more than any other organ of the State. 

“Appointment by the executive does not imply subservience 
We have already said that the fact that judges may be appointed by the executive does not carry with it the corollary that appointees must be subservient to the President.
Justice Michael Kirby said:187 p. 43

Politicians in our tradition hold fast to the power to choose Judges who they hope will generally reflect their attitudes as reformists or traditionalists. Of course, once judge is appointed, he is legally immune from direct pressure from the Executive Government. 188 Politicians can make terrible mistakes in their selections. President Eisenhower admitted to only two mistakes. ‘Both of them’, he declared, were ‘sitting on the Supreme Court. One of them was Chief Justice Warre.’189”
“Speaking about the prospects of judicial promotion, Sir Gerard Brennan said:457

There is nothing dishonourable about hoping for promotion when an appropriate vacancy occurs; but it is dishonourable actively to seek a promotion. Ambition and its twin, envy, can corrode a character and destroy the harmony of a court. Judicial appointment is not a stepping stone in career; it is prima facie a dead-end job of the highest importance. If promotion should come, it should be supported by those who have an opportunity to form an opinion on the quality of the work done and the judicial demeanor manifested in doing it.” 
P. 585

“I am of the view that in Sri Lanka, having regard to its traditions, the appointment of persons to the Bench must not be based either on political party considerations or on questions of ‘philosophy’, whatever the practice may be elsewhere. This is of importance in Sri Lanka where the state is sometimes, and in matters concerning fundamental rights, always, a party. In some countries the appointment of judges has been based on the expectation that they will ‘do the needful’ as far as the appointing authority is concerned. Judge watchers have suggested that there have been, perhaps, a few Jeffereys on the bench.1112
Shetreet said:1113

Whether or not political appointments affect the decisions of judges, they are certainly capable of shaking public confidence in the judiciary, and whatever contra-argument may be raised, this reason alone compels that politics should be eliminated from the appointment of judges.”

There are also certain traditions that were maintained for many years, but it does not happen in the present day’s context. In earlier times, District Judge of Colombo was the most senior original Court Judge, and the most experienced Judge who presides in District Court No 1 or Court “A”. During a certain era the District Judge of Colombo was directly appointed to the Supreme Court on promotion. As I could remember, Justice A. Vythialingam and Justice K. C. E. De Alwis were promoted to the Supreme Court and the Court of Appeal respectively, maybe at different times. There were others also who were promoted in the past, as stated above. 

The legal history of our country will also indicate that the Hon. Solicitor General and the Hon. AG were appointed as Judges of the Supreme Court and the Hon. AG as the Chief Justice. This traditional selection process were considered for appointment as both in the Judiciary and the Attorney-Generals Department had senior experience, and knowledgeable persons to take over the higher Judiciary. Further such appointees were honorable, free of corruption and politics, as well as had an impeccable character. This should be the standard to be considered at all times.

However, a change came into the system with the establishment of a number of high courts and a commercial high court in Colombo. Assize Courts with original criminal jurisdiction were transferred to the High Court. Today I understand that about 75 High Courts or more are established all over the island. The reason being that the countries population has increased very much and more complex problems are taken before courts.

The fast development of Public Law maybe also another factor. There are conflicts between nations, environmental problems, and some are acute, human rights issues, health and many more could be added as reasons to the expansion of the Court’s structure. Whatever it may be, the high quality and standards of appointments with proper blending should be the criteria to be maintained, as regards appointments to the Superior Courts. 

The Attorney-General and the Department

The office of the Attorney-General was formerly established in 1884 under the colonial rule. It is however said that this office could be traced to the office of ‘Advocate Fiscal’which existed at a later stage of the Dutch rule in the island of Ceylon. This office had continued in the early years of the British occupation until 1834 when it was changed to ‘King’s Advocate’ and ‘Queen’s Advocate’ (when the Queen ruled the British Empire) By ordinance No 1 of 1883 the designation of Officers as ‘Queen’s Advocate’ and ‘Deputy Queen’s Advocate’ changed as Attorney and the Solicitor General. The Deputies of Queen’s Advocate as Crown Counsel. 

“Under the Donoughmore Constitution the provision of legal advice to the Governor was the responsibility of the Legal Secretary and the Attorney-General’s Department. The institute of Criminal prosecution and Civil proceedings on behalf of the Crown was the duty of the Attorney-General’s Department (Soulbury Report p. 105).

The Soulbury Commissioners recommended that the functions of the Legal Secretary certifying Bills prior to submission to the Governor for assent should be transferred to the Attorney-General (Soulbury Report p. 92). They also recommended that under the new Constitution, for some time at least, the Attorney-General and Solicitor General should not lose their status as public servants and become Ministers and that the provision of legal advice to the Governor General should in future be a duty of the Attorney-General (Soulbury Report p. 105).

 As regards legal advice to Ministers under the new Constitution the Commissioners recommended that questions relating to the interpretation of existing law and departmental matters which may involve legal proceedings would continue to be referred to the Attorney-General or the Solicitor-General. They also recommend that advice on matters of high constitutional policy, on which the cabinet as such may require advice could be given by the Attorney-General, provided that the recommendation as to his non-political status was accepted.  (Soulbury Report p. 107)

The Attorney-General’s Department has two branches i.e. Civil & Criminal. The Civil branch was usually led by the Hon. Solicitor General, and the Criminal Branch came under a very senior additional Solicitor General, with the Hon. Attorney-General having overall supervision of the entire department.

The department also has the State Attorneys section dealing with conveyancing work and all functions done by a proctor concerning Civil Litigation (Instructing). This section of the department was headed by the most senior Attorney designated as ‘State Attorney. With the heavy load and expansion of Civil work, it was necessary to appoint two State Attorneys and with the lapse of time, it could lead to further changes. Some years ago, the entire carder of the department would have been about 60/70 Officers or less than that. But today, I understand that over 250 Officers serve the department. Court experience of State Counsel commences from the very next day of appointment. Very often a Junior State Counsel is pitted against senior members of the unofficial Bar or maybe even a President’s Counsel. This is a challenge that has to be met; State Counsel are posted in all provinces along with a prosecuting state counsel in the Criminal High Court. In earlier times it was the Crown Counsel who prosecuted in the Assize Courts. 

The Attorney-General has played an important role in the legal history of our country. He is the head of the official and the unofficial Bar. He has precedence over all President’s Counsel and Queen’s Counsel and ranks in precedence in the legal sphere, next to the Chief Justice. In all ceremonial sittings, the Attorney-General will address the Court before the President of the Bar association. These are traditions maintained throughout the legal history. It is so because of the importance of the office of the Attorney-General. 

Hon. Attorney-General is vested with certain wide powers in terms of the Code of Criminal Procedure act.

“As regards criminal matters, the Attorney-General advises Government departments, in particular the police departments. Indictments against accused persons who are charged with serious offences are forwarded in the name of the Attorney-General. A State Counsel prosecutes in such cases. The Attorney-General himself leads the persecution in major trials of public importance. 

Some of his powers under the Code of Criminal Procedure Act No. 15 of 1979 are as follows:-

  • Power to determine whether a trial in the High Court shall be jury or otherwise. 
  • Power to grant sanction to institute certain prosecutions
  • Power to tender pardon to accomplices
  • Power to call for the original record even while the prosecution is pending.
  • Power to quash a commitment made by a Magistrate and issue instructions to a Magistrate. 
  • Power to direct a Magistrate to commit an accused who has been discharged.
  • Power in his discretion to enter ‘Nolle Prosequi’.
  • Power to decide the Magistrate’s Court having jurisdiction to try a case in case of doubt.

The Attorney-General also makes his recommendation as to whether or not the sentence of death passed on an accused may be carried out.
    
It should also be noted that important constitutional provisions recognise the Attorney-General. Article 134 of the Constitution provides that the Attorney-General shall be noticed and have the right to be heard in all proceedings in the exercise of it’s jurisdiction in the following cases. 

  • When the Court exercises its jurisdiction in examining Bills for constitutionality.
  • When any question relating to the interpretation of the Constitution is under consideration by Court.
  • When the Court hears any complaint or breach of fundamental or language rights guaranteed by the Constitution. 
  • When the Court exercises its consultative jurisdiction upon reference on a question of law or fact of public importance referred to the Court by the President.
  • When the Court exercises its jurisdiction in respect of breaches of Parliamentary privileges. 

In all these proceedings public interests are involved and the right of the Attorney-General to be heard therein enables him to assist the Court to reach a decision which would advance such interests. 

As regards disciplinary proceedings against members of the Bar, the position is that the Supreme Court exercises the jurisdiction to inquire into the conduct of Attorneys-at-law. When the allegation against an Attorney-at-law has been investigated, the relevant material is forwarded to the Attorney-General by the Registrar of the Supreme Court with a draft rule for approval. The Attorney-General may approve such rule with or without modifications.”

The immense experience gathered in a variety of legal subjects by those Officers of the Attorney-General’s Department over a period of time in Court and outside Court cannot be disputed easily as every Officer has exposure to both local and international arenas of legal study. It is a normal practice which emerged from the constitution to give a right of audience in the Supreme Court to the Hon. Attorney-General in all important cases. 

The importance of the functions and duties of the Attorney-General and the department is clearly projected and described as above in the constitutional provisions and the procedural laws of our country. Attorney-General in the exercise of the above functions must act objectively and impartially between the State and the subject. In a suitable case the Attorney-General is expected to settle disputes between the government and the citizens to meet the ends of justice. In a criminal case, usually the sentence is a matter for the court, but if the Court invites the State Counsel to address Court on the question of sentence, he needs to assist the Court. However, there are instances where the Attorney-General has moved in revision of sentence as regards Homicide and Sexual Offence cases. As such there is enough and more justification for senior Officers of the Attorney-General’s Department to be considered for Judicial appointments to the Apex Court and the Court of Appeal. This practice has continued in our country for over a century. 

Conclusion

The selection process to the Supreme Court and the Court of Appeal should be adhered in the manner discussed within this essay. There needs to be a proper blending to maintain a balance in the Superior Court appointments, amongst the career Judicial Officers, Senior Officers of the Attorney-General’s Department and the unofficial Bar.

This process discussed above has continued for a very long period of time and it needs to continue in the best interest of the Judiciary and society. 

An independent commission as the ‘Constitutional Council’ would in the selection process achieve the best results if the composition of the Constitutional Council consists of more lay, educated, experienced persons other than politicians. The number of politicians in the Constitutional Council need to be pruned down. To have more politicians than lay persons in the Constitutional Council would not assist the proper task of selection and also would not befit the Judiciary, from any point of view. This is the best way to protect the Judiciary from any kind of political interference, manipulations, and ulterior motives of politicians, regarding appointments to the Higher Judiciary.

Whenever politics crept into or entered the Judicial domain, history reveals that it is disastrous to the Judiciary and the profession as well as the civil society. A strong Bar is a necessity to any South Asian country, like Sri Lanka. The Constitutional appointment process of Presidential counsel as described above, should be followed to the letter and spirit of the law. What is contemplated by the basic law is to reach eminence in the profession and to maintain high standards of conduct and professional rectitude. If that is achieved, society will respect the legal profession and look up to the legal profession. On the other hand, it will enable litigants to be led and properly advised in the correct path of the administration of justice. 

It is also no secret that very many counsel and President’s Counsel are financially sound and financially independent, and achieved that level due to their advocacy. Those learned counsel or President’s counsel should make it a point to at least appear once in a way for a poor client prodio, who has suffered a good part of his life due to litigation. The Legal Aid Commission, expanding legal aid all over the country no doubt caters to poor clients. There would be better representation if President’s Counsel offer their services to the legal aids scheme in whatever manner they wish to assist poor litigants. If this practice could be established and developed it would enhance the prestige of the legal profession in the civil society or even gain international recognition. 

This essay I hope would generate the necessary awareness of members of the legal profession and the Judiciary. In a way I observe that it is intended to meet an urgent demand of the day, concerning the legal profession and the Judiciary. Activate principles which have been embedded in the law and practice for centuries. It needs to be applied for greater confidence and vigor. Let politics not get into the legal system and to the several matters discussed in this essay, nor merely left to develop haphazardly, it is bound to get badly out of balance.

My concluding remarks are as follows: Every Judge in this country is a leader in his Court. Remember that every case before a Court is an important case, and the welfare of the country really depends on the proper way justice is administered. 

“When the leader walks straight, the rest will go straight”. 

(This article first appeared in the Galle Law Journal)

  Comments - 1

  • Sarrij Tuesday, 6 August 2019 03:13 AM

    The last 30yrs since the advent of computers and dissemination of news becoming a 24-hour news cycle and information technology "the hierarchy" in the legal system needs significant change. The justice system in SL functions at snail's speed and needs significant and urgent changes with a real effort to reduce the political influence. Too much importance is given to titles and status and too little too real justice

    Reply : 0       0

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