4 December, 2020

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I Have The Fullest Confidence That Our Judges Have The Ability To Stand Firm And Stand Strong

By Shirani Bandaranayake

Shirani Bandaranayake

It is indeed a great pleasure, privilege and an honour to be with you this morning. It is certainly not only due to the importance of the Annual General Meeting of the Judicial Services Association, which consists of our Magistrates and District Judges who are serving in different parts of the country. Of course I am fully aware and mindful of the significance of today’s gathering, but what I most admire is the strength and the courage that was shown by the organizers in making this event a reality amidst so many debacles thrown at them at very short notice.  The courage they mustered, the unity that was exhibited and the determination that was expressed in unison on the need of that hour had made today’s sessions a reality and had shown in no uncertain terms the true independent nature of our judiciary. The support all of you had given over a period of time on many burning issues which all of us had to face during the last few months, no doubt was the foundation for the courage, unity and the determination that was exhibited. My heartfelt congratulations go to all of you and especially to the organizing committee for not only making today’s event a reality, but also for the unity shown at this difficult hour to strengthen the independence of the judiciary.

There are several important features in this annual get together. Out of all these, what I would appreciate mostly is to see all of you together under one roof so that you as Judges would get an opportunity to meet your fellow brothers and sisters and to exchange your experiences on issues that are common to all the judges.

The theme of this year’s conference, based on the independence of the judiciary, is not only timely, but also opportune since socially, economically and historically we are at an important juncture.

The Judiciary, being one of three important pillars of the State, has a duty cast upon it to look beyond the frontiers, in its proceedings with the administration of justice. It has been increasingly acknowledged that in order to uphold the Rule of Law in a Democratic society that it is necessary to have an independent judiciary. The judicial independence could be given different definitions and could take a variety of forms, but the underlying theme would be that the Judges would act independently. Such independence is assessed for a variety of reasons, which includes public confidence, which is essential for the effectiveness of the Court system.

An independent judiciary is an essential feature for a functional democracy, where the courts are regarded as temples of justice. The judiciary has been throughout the centuries and is the formidable protector of the rights and individual liberty of every citizen in a democracy. As all of us are fully aware the three branches of Government, that being the Executive, the Legislature and the Judiciary, rest upon the basic and the firm foundation of the Rule of Law. It is therefore an unwritten law that if the Rule of Law is not observed, the three main organs of the Government cannot function and there would be irreparable damage to the basic concepts of equality and freedom.

Therefore for the existence of an independent judiciary it is not only necessary, but would be essential to ensure that the basic principles of Rule of Law should be observed at every level to all citizens on an equal basis. In order to guarantee that there is strict observance of the Rule of Law, it is necessary that a fair hearing is given to every citizen, who is called upon to defend himself before a Tribunal on matters affecting his rights. These are not new concepts, which had emerged overnight nor are they just theories, which had been said without any basis.

For centuries, our Judiciary had been held in high esteem.  Such prestige had not been earned overnight, but gradually garnered through the decades due to the cumulative effect of high traditions, hard work and the desire to uphold the independence of the judiciary. Our Judges of yester years had jealously guarded their fierce independence and several instances could be quoted in this regard.  Particular reference had been made to the Supreme Court praising its independence.

There were those who sat where you sit today and there would be many more that would do so in the years to come. However, the common thread that binds us here today is the fact that we are all judges.

As Judges we have a heavy burden placed upon our shoulders in discharging our duties to the society. We should always act within the framework of the adversarial process, established by law. Under no circumstances a Judge could abbreviate or change the critical aspects of the adversary process established by our Constitution. In doing so, as has been summed up by the National Judicial College of the USA, a Judge should possess several important qualities for him to carry out his duties. A Judge should be in a position to assure without being offensive, firm but fair, not yielding to every request, but yielding to some, calm under pressure, moving the case or calendar, but not shoving people, listening, inquisitive without being obnoxious, firm, but not abusive, diligent and intelligent without being arrogant. Of course, it goes without saying, sitting judges should never get involved in politics.

These principles stand as testament to the paramount importance of giving a fair trial to an accused, which in its self is a stalwart cornerstone of our Constitution. No person’s rights will be infringed without a fair trial before an impartial and independent tribunal operating according to fair procedure.

We are all aware of the proverbial legal maxim; justice should not only be done, but should manifestly and undoubtedly be seen to be done. The robes we don, the traditions and principles we live by are but all akin to the proliferation of the latter. Fairness in dispensing of justice is the foundation upon which trust has been established upon our noble profession amidst society. It is upon this basis that we presume a person to be innocent until he is proved guilty. Article 13(3) of our Constitution clearly states that any person charged with an offence shall be entitled to be heard at a fair trial by a competent court. In order to ensure that justice is meted out, the judges must be able to carry out their functions in the calmness, serenity and safety, which are necessary for their independence.

In order to uphold independence, a Judge must be willing and able to make many sacrifices.  A Judge must be willing and able to sacrifice what others are capable of enjoying, in order to uphold independence.  He must stand firm through any and all apprehensions and want of personal benefits in the name of justice.

In 1867 Walter Bagehot commented that, the worst judge is a deaf judge. I believe it is apt to amend his sentiment in relation to this crucial judicial and socio-economic juncture of our country. The worst judge is not merely one who is deaf, but one who also succumbs to pressure. It is as much the responsibility of the judge to stand above it, without any fear or favour as it is the responsibility of the Legislature, the Executive and the society at large to ensure that they are capable of discharging their constitutional duties without undue adverse intimidation.

I have the fullest confidence that our Judges have the ability to stand firm and stand strong.  Duty before self and Justice before all.

Thank you.

*Speech delivered at the Annual General Meeting of the Judicial Services Association held on 22nd December 2012 By Dr. Shirani A. Bandaranayake, Chief Justice of the Republic of Sri Lanka

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Latest comments

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    At this crucial juncture a very fine speech upholding the values and dignity of the position she holds, free of bias or political innuendos. A worthy statement befitting Lady Justice.

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    NICE SPEECH. NOW ALL HAVE REALIZED THE TRUTH.
    GOD BLESS YOU ALL.
    FREE THE WHOLE COUNTRY FROM CORRUPT REGIME.

  • 0
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    Madam Bandaranayake, please don’t bow to pressure from this evil Rajapakse family who are’ yakkas”. The whole Country is with you. We must all join together and chase these mad men out soon.

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    Very well delivered timely message. I hope there is a Sinhala translation. Standing firm and stand in unity is very important against this rouge regime. Not bowing down to immense pressure, she has shown that she is a stronger leader than these goons in parliament. I am very impressed with her.

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    I do hope this speech will further encourage the judiciary to assume its historic role in SL. This speech and the very act of holding this annual conference despite the obstacles point to one thing. This struggle for functional and institutional independence by the judiciary, after its long slumber and insular role in the last 3.5 decades, is leaving the Parliament and specially its opposition to much reduced role, even to the point of irrelevant.

    With the watershed ruling by the Appeal Court on 21st, and the self assuring conduct by CJ including this speech, notwithstanding all her previous minor blemishes, the institutional and abstract “battlelines” (in the absence of a better term) are being demarcated with even greater intensity.

    Hope the public assumes and realises its role, too.

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    Brave lady you’re a marvel to watch and to be emulated.A landmark speech in the annals of great speeches for the independence of judiciary.

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    Well thought out speech, to the point and rich in substance. This is a good answer to the detractors; no malice but a firm message that she will withstand pressure. Those who brought the impeachment and their propagandists should be ashamed of what they have done or doing.

  • 0
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    Landmark statement by great lady of Sri Lanka.

  • 0
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    You have shown full courage before the gallows ,before the hangman at this crucial hour . Long live the independent judiciary of Sri Lanka!

  • 0
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    While Shirani Bandaranayake, as indeed any other accused citizen of the country must have a fair hearing by a competent panel of experienced and respected wise men and women, the constant harping on the “independence” of the judiciary must be tempered with some facts that are also relevant to the issues at hand.

    One, is that the legal fraternity have always operated with much conflict of interest in their roles. One example is that lawyer politicians who represent the people at the apex legislative body have lucrative private practices with unfettered access to private incomes, whereas their fulltime job should be to represent the people and look after the welfare of their constituents, with taxpayer salaries.

    Another is that representativs heads of judicial bodies also sit in parliament and engage in politics.There is an obvious conflict of interest in these dual roles, while impartiality cannot then be guaranteed.

    When threatened, much righteousness is publicly demonstrated. However, introspection is needed in order to clean up the house and put it in order before other threats to the “independence” of the judiciary can be seriously considered.

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    “Our Judges of yester years had jealously guarded their fierce independence” is a proud legacy that was prostituted in recent years
    for filthy lucre and sycophancy. With what reverence we hold the names of HNG Fernando, Sri Skandarajah, Mark Fernando et al. All giants in the science of jurisprudence, of uncompromising principles, unwavering judicial independence and personal integrity. They never conducted themselves in a manner where the name of the Supreme Court was dragged in the mud or where the public were to lose confidence in them for colluding with the executive for suspect personal gain.

    Senguttuvan

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    It is like writing the epilogue in a play which is about to end. Knowing her days are numbered, she is counting on this for posterity.

    Whilst I do not disagree with the message, I have a problem with the messenger. If she had been consistently independent, used good judgement and never succumbed to pressure, interpreted the Constitution in the best interests of the Nation in the spirit in which it was framed, then I would also applaud the messenger.

    Making a stand realizing she had erred, was looking to make amends and was looking for atonement, only makes her decent, and not great.

  • 0
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    Though she has erred in the past, she has now realised that “enough is enough” and the Judiciary cannot bow down to pressure anymore. Hope this message is heeded by her fellow lawyers and Judges who has to now stand firm in the face of immense pressure for the sake of the people of this country that has already stained with the blood of innocents.
    Unless this happens we will continue to slide down the path of no return.

  • 0
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    Meaning full with experienced thought out speech, to the point and rich in substance.

    This is a good reply for all politicians and decision makers in the country. She show us how to behave and practice in difficult juncture environment.
    As a educated citizen in country should come forward and get the leader ship to march wright direction for betterment of our society.

  • 0
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    In this sordid episode I firmly believe that truth will prevail in
    the end and our courageous and honourable lady C.J will be fully
    exonerated to continue to dispense justice to all Sri Lankans without
    fear or favour.

    Those deaf and blind law makers with so many skeletons in their own
    cupboards, making these wild accusations for their own ends little
    realize that they cannot fool all the people all the time and their
    end is not far away.

  • 0
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    In this sordid episode I firmly believe that truth will prevail in
    the end and our courageous and honourable lady C.J. will be fully
    exhonorated to continue to dispense justice to all Sri Lankans without
    fear or favour.

    Those deaf and blind law makers, making these wild accusations for
    their own ends, with so many skeletons in their own cupboards, little
    realize that they cannot fool all the people all the time and their
    end is not far away!

  • 0
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    “The worst judge is not merely one who is deaf,but one who also succumbs to pressure”.
    True. But what does a judge do when he/she is transferred suddenly in the middle of an inquiry he/she is conducting?
    In August 2006,Jaffna Magistrate Srinithi Nandasekeran commenced inquiry into reports conveyed to her that many civilians had been massacred inside a church in Allaipiddy,by personally inspecting the site and recording evidence.
    But,suddenly she was transferred to Colombo.
    Muttur judge Manikkam Kanesaraja who commenced inquiry into the murders
    of 17 Aid Workers of the INGO ‘Action against Hunger’ was suddenly transferred to Valaichenai.
    Will the CJ or the Judicial Services Commission intervene in or cancel such transfers which negate the independence of the judiciary ?

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