By Ashan Nanayakkara –

Ashan Nanayakkara

An Order made by the Supreme Court of India on a Transfer Petition in year 2021 has highlighted the importance of filling vacancies of judges on time.

Explaining the dearth of enough judicial officers in office, Indian Supreme Court observed that, “The High Courts are in a crisis situation. There are almost 40% vacancies in High Courts, with many of the High Courts working under 50% of their sanctioned strength… …The vacancies are known and the norms permit making recommendations up to six months in advance” – M/S PLR Projects (Pvt) Ltd. vs. Mahanadi Coalfields Ltd. & Others (Transfer Petition – Civil No. 2419 of 2019)

Sri Lanka too, time to time, face the same fate as the judicial appointments to the higher and superior courts are not seem to have timely made. Or rather, terminations are proportionately higher compared to its recruitments.

Currently, there are 2-vacancies at the Court of Appeal, and the names that have been sent to the President by the Chief Justice and the Attorney General are yet to see the daylight. In coming months, more vacancies are to create at the Supreme Court and the Court of Appeal, and in this backdrop, it is highly disturbing and dismayed to see that some fractions have commenced, the same dirty old arm-twisting tactics to circumvent the benchmark set by this Government lately, i.e., to give priority to seniority. True that there is a bottle neck at the apex courts in Sri Lanka to become a superior court judge, yet, everyone could not reach to the pinnacle of their career neither some of them deserve to be so.

Country wide there are plenty of vacancies at the High Court level and some judges sit as Civil High Court judge in one session and Criminal High Court judge in another session at the same jurisdiction, either on staggered basis or morning and afternoon shifts covering the duties of vacant positions.

The delay in appointing judges to higher courts in a timely manner (except 4 High Court Judges were appointed by then President Ranil Wickremesinghe in year 2023, since 2021, shockingly, there was no prominent number of High Court Judges were appointed), may create, uncertainty, qualm among the sitting judges, dangerously, allowing lobby for selected judges by various groups who have vested interests, and thereby bring about frustration among those who are correctly standing in the seniority queue.

In the good old days, when a judge retired, his successor who had been identified at least months earlier was appointed to that vacancy forthwith. Nonetheless, exceptions were not hard to come by in yesteryear. One such was, viz: “…though a vacancy on the Bench of the Court of Appeal arose on the 8^th April 1996 with the promotion of Justice Anandacoomaraswamy to the Supreme Court, and the senior most Judge of the High Court, Upali de Z Gunawardene who ought to have been appointed to replace him on the “Queue System” was in the midst of hearing the case in which my good friend and client Sinha Ratnatunga was charged with the criminal defamation of the then President CB Kumaratunga; that vacancy was not filled but remained until the 15^th July 1997 i.e, till Sinha Ratnatunga was convicted and sentenced, and Upali De Z Gunawardene who even referred to “the moral excellence” of President CB Kumaratunga(!!) in the course of his judgement…” – pp. 207-208 of Lore of the Law by SL Gunasekera.

Whilst, permitting the former President of Court of Appeal to leisurely go on leave till his time expires, denying the current acting President of Court of Appeal, who said to have possessed with an immaculate judicial temperament, to wear the title of President of Court of Appeal as feather on his hat, it raised eye brows among many, how this Government too, erred in acting on a dilemma and buying time to make appointments to superior courts on time. The Criminal High Court Judge of Colombo who has been in the center of lot of controversial decisions given against errant politicos and drug kingpins in recent times and the earmarked most experienced Civil High Court Judge of Colombo both have been in the pipeline hitherto, are in limbo due to unwarranted delay, and hence, anything is quite possible to take place between the cup and the lip.

These delaying tactics were once usurped by Rajapaksa regime, whereas, it was not from this Government, masses expected to see such follies, again.

Besides, BASL too recently wrote to the Constitutional Council on prolonged delay on appointing the Chairman to the Right to Information Commission. Likewise, judicial independence would be undermined by increased ministerial participation and needless postponement in the appointments process.

Hence, it is high time to place a time frame, to nominate superior court judges, and appointments made to the other vital posts in the Government, in advance, before any vacancy is borne out and forfending those positions being inordinately delayed infinitum.