By Lal Wijenayake –

Lal Wijenayaka

In the wake of concerns expressed by the Bar Association of Sri Lanka (BASL) and members of the legal profession on the unprecedented transfers of judges and the appointment of a judge of the Court of Appeal to the Supreme Court by the President bypassing the President of the Court of Appeal to the Supreme Court, the question is posed as to whether the BASL and/or members of the legal profession has a right to express its concerns on such transfers and appointments.

Under Article 114 of the constitution it is the Judicial Service Commission (JSC) that is vested with the power of appointment, transfer, dismissal and disciplinary control of judicial officers. Under article 107 of the constitution as amended by the 18th amendment the Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and the Court of Appeal is appointed by the President after considering the observations from the Parliamentary Committee. The Parliamentary Committee does not in practice functions and therefore it is the President who makes these appointments.

These powers regarding judges is vested in the JSC and the President on trust that these powers will be used by the JSC as well as the President for the purpose for which these powers are vested with the authorities and for no other collateral purpose.

It is well established as to what is expected from the JSC and the President in the exercise of these powers. It is to uphold the independence of the judiciary. No authority vested with any power under the constitution can exercise those powers in violation of the basic structure of the constitution which is to establish a government based on democratic values.

Two main pillars of such a democratic form of government is the Rule of Law and the Independence of the Judiciary.

Therefore, not only the BASL and/or members of the legal profession but any citizen of the country has a right to question any deviation from the trust reposed on these authorities by the people under the constitution.

Therefore the question as to whether the BASL and/or members of the legal profession has a right to question transfers or appointments will depend on the answer to the question whether the authorities has acted in such a way as to infringe on the independence of the judiciary. If it has acted in such a way as to affect the independence of the Judiciary in making such transfers and/or appointments the BASL and/or the members of the legal profession has a right to express its concerns.

It is not the person who is appointed to the Supreme Court that matters. The important question is as to, whether it infringes on the independence of the judiciary or will it be seen to be an infringement of the independence of the judiciary. The appointment made to the Supreme Court bypassing the President of the Court of Appeal and deviating from tradition needs an explanation.

The people are entitled to know the reasons for such an action and if it is not forthcoming it will lead to speculations that will cause loss of faith in the administration of justice. This is so, specially as this extra ordinary situation has arisen in the heels of the ill fated impeachment process against the Chief Justice and the actions of the executive that followed, that has gravely damaged the standing of the judiciary of our country and challenged the concept of separation of powers.

*Lal Wijenayake – Chairman, BASL Standing Committee on Rule of Law