18 September, 2021

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Magistrates Rebel, BASL Schools SC Judges On Judicial Independence After Seminar Controversy

The Bar Association of Sri Lanka has flagged concerns arising about perceptions of attempted interference with the judicial discretion of magistrates following a highly controversial seminar held by the Judicial Service Commission (JSC) last Friday (13).

In a letter addressed to Chief Justice Jayantha Jayasuriya who is president of the JSC and Justices Buvaneka Aluvihare and L.T.B. Dehideniya who serve as members on the Commission, the BASL expressed deep concern at the content of media reports following the seminar, which the Bar “impact on the rule of law, the independence of the judiciary and on the public confidence in the administration of justice.”

“Litigants and their Attorneys-at-Law should have the confidence that judicial officers are free to decide cases on their own merits and not based on any other consideration. These, as Your Lordships are well aware, are fundamental aspects of judicial independence and the Rule of Law,” the BASL Letter stated.

The BASL said that the media reports create a perception that run contrary to the dictum laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, [1924] 1KB 256 that “justice must not only be done but must also be seem to be done”. The principle was strongly ingrained in the Sri Lankan legal system as well, the BASL noted. The Letter was signed by BASL President Saliya Peiris PC and BASL Secretary Rajeev Amarasuriya. [See text of BASL letter below. Available in PDF here]

Colombo Telegraph reported that the not-so-subtle orders issued by the Chief Justice and his brother justices of the Supreme Court at the JSC seminar had shocked magistrates who did not expect to be instructed about how to exercise their judicial discretion. Magistrates who did not wish to be named expressed dismay about the turn of events, calling the instructions from the head of the judiciary a direct assault on the independence of lower court judges. Chief Justice Jayasuriya and Justices Aluvihare and Dehideniya urged the magistrates to make use of Sections 98 and 106 of the Criminal Procedure Code to curb protests and remand protesters produced in court by the police.

Chief Justice Jayantha Jayasuriya, SC Justices Buvaneka Aluvihare and L.T.B. Dehideniya attended the Seminar for Magistrates on Friday, 13 August 2021 at the Judges’ Institute.

Colombo Telegraph learns that magistrates in all parts of the island have no intention of following the “instructions.”

On Tuesday (17), Colombo Additional Magistrate Lochani Abeywickrema schooled police officers on the supremacy of the fundamental right of free expression and peaceful assembly as enshrined in the Sri Lankan Constitution. Quarantine Laws would never be above the people’s right to free speech and protest, the Additional Magistrate told the Muttuwal police officers seeking to take up a case against Frontline Socialist Party Propaganda Secretary for organizing a protest by the fishing community whose livelihoods had been affected by the X-Press Pearl disaster.

Additional Magistrate Abeywickrema informed the Police that despite their authority to enforce Covid-10 laws to prevent the spread of the virus, they could not use these laws to suppress the people’s constitutional rights. She then postponed the case until December 2021.

Two days before the seminar, Colombo Telegraph exclusively reported that the magistrates were going to be ordered to prevent protests against the Government when the police sought court orders to ban the demonstrations. The report also revealed that the Supreme Court judges were being leaned on to “instruct” the lower court judges by Justice Minister and President Gotabaya Rajapaksa’s personal lawyer Ali Sabry.

However, when the JVP raised the media reports about the seminar in Parliament on Tuesday (17), Justice Minister Ali Sabry pledged an inquiry into the allegations and claimed the JSC was a completely independent body that the Government did not interfere with.

Colombo Telegraph learns that it was the Government that pressured the JSC to make the seminar about judicial proceedings in the wake of the pandemic mandatory for magistrates across the country. The JSC Secretary in a letter to invitees, said their attendance would have a bearing on future promotions to the High Court, salary increments and foreign training opportunities. The demands on attendance baffled lawyers and magistrates, who did not initially understand how important the seminar would be politically. (Chinthaka De Silva)

Letter to the Judicial Service Commission from the Bar Association of Sri Lanka: Full Text

16th August 2021

His Lordship Jayantha Jayasuriya, PC

The Chief Justice,

Chairman,

Judicial Service Commission,

Colombo 12.

 

His Lordship Justice Buwaneka Aluwihare, PC

Member,

Judicial Service Commission,

Colombo 12.

 

His Lordship Justice L.T.B. Dehideniya

Member,

Judicial Service Commission

Colombo 12.

 

Your Lordships,

 

CONCERNS ARISING FROM REPORTS ON A MEETING / WEBINAR TITLED “MATTERS RELATING TO JUDICIAL PROCEEDINGS IN THE CONTEXT OF THE COVID-19 PANDEMIC” CONDUCTED FOR JUDICIAL OFFICERS

Several members have drawn the attention of the Bar Association of Sri Lanka (BASL) to reports published in the media on a meeting / webinar held on Friday, 13th August for judicial officers titled “Matters relating to judicial proceedings in the context of the Covid-19 Pandemic” conducted by the Sri Lanka Judges’ Institute with the participation of non-judicial personnel including at least one official whose administrative orders and decisions form part of the matters that are currently under judicial consideration in several cases that have been filed or are pending before Courts.

These media reports claim that at this meeting / webinar:

a) that the issue of trade union protests and the role of the courts also came up for discussion;

b) that judicial officers had been given instructions on the use of certain sections of the Criminal Procedure Code to control public gatherings on account of the pandemic situation in the country;

c) that there was a perception among judicial officers that there was an effort to impress upon them to give orders, the police request to curb protests.

The BASL is deeply concerned at the contents of these reports which impact on the rule of law, the independence of the judiciary and on the public confidence in the administration of justice.

The Constitution requires every judicial officer to decide every case based on the facts and circumstances of that particular case and the applicable law. Every party before court has an expectation that his / her case will be decided upon on its own merits, upon a fair hearing given to such party or his / her counsel. Any party including the State, if dissatisfied with such an order is entitled to canvass the same by way of an appeal or revision application to an appropriate forum.

Litigants and their Attorneys-at-Law should have the confidence that judicial officers are free to decide cases on their own merits and not based on any other consideration. These, as Your Lordships are well aware, are fundamental aspects of judicial independence and the Rule of Law. The perception that these reports create, run contrary to the dictum laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, [1924] 1KB 256 that “justice must not only be done but must also be seem to be done”, a principle strongly engrained in our legal system as well.

We also wish to draw the attention of Your Lordships to The Bangalore Principles of Judicial Conduct, 2002 (The Bangalore Draft Code of Judicial Conduct 2001 adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, November 25-26, 2002) which states as follows:

1.1 A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

In these circumstances whilst any move to conduct a meeting / webinar to create awareness among judicial officers of the seriousness of the pandemic and the need to ensure that the courts are administered keeping in mind health guidelines are most welcome, it is our considered view that the contents of such a meeting / webinar should not leave the impression, either in the mind of the participating judges or the public, that it has any bearing on the manner of the discharge of judicial functions or that it was intended to have the effect of stifling any judicial officer from the independent exercise of his or her judicial mind and discretion in a particular case based on the law and accepted principles of judicial interpretation.

In these circumstances it is the view of the BASL that as there is a strong possibility of an impression being created, if not already created, in the minds of judicial officers and of the public, that the above meeting / webinar was conducted with the aim of impressing upon judges to make particular orders in a particular manner, such an impression should be immediately addressed and if necessary be corrected, in the public interest and the interests of all those tasked with the administration of justice.

As always the Bar remains faithful to its commitment to safeguard the independence of the judiciary and the integrity of its institutions without which the constitutionally entrenched principles of separation of power and rule of law would be of little or no avail.

Thank you,

Yours faithfully,

Saliya Pieris, PC

President

Bar Association of Sri Lanka

 

Rajeev Amarasuriya

Secretary

Bar Association of Sri Lanka

 

CC: Hon. H. Sanjeewa Somaratne

Secretary

Judicial Service Commission

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Latest comments

  • 25
    2

    The BASL should understand that this is Syntetic Law Reform created by Synthetic Family. There is nothing to protest. 6.9 million Sinhala Buddhsit Synthetic Patriots created this Synthetic Aanduwa to rule this Synthetic Sinhala Buddhist Republic of Sri Lanka and why complain now. Only leader who keeps to his promise. Just see the booru Blind Eagle alias HLD had decamped.

    • 8
      1

      The Law profession is the main culprit that destroyed the democracy in Sri Lanka. All those who practice law and who became politicians and political serviles to corrupt Elite political order, contributed immensely the destruction of the law & order in the system. WHo can break the law better than those who are in the LAW industry….. Lawyers have become Liars in the service to the GOVIGAMA RULING ELITE MAFIA GANGSTERS.

  • 9
    27

    Hon. Mr. Saliya Pieris. Based on the manner BASL violates the very principles it is quoting in the titled letter to JSC, ironically, it sounds like the Pot is calling the Kettle black. It is imperative that as the current President of BASL to act resolutely to thoroughly clean up BASL his own house.

    • 8
      0

      Dear HP
      …BASL violates the very principles it is quoting …
      Would you kindly elaborate on the above and give the specific circumstances of violation.

      • 5
        1

        MyView: You want HP to explain. This is like when AKD asked a question in Parliament from the Minister of Justice Ali Sabri re. this “Seminar”, the Minister said: “I need two weeks time to provide the answers”.

        “HP” might take at least “Two Years” to provide the “Specific Circumstances of violations”. If, asked, please grant that request, because in “Two Years” (2024) the people might provide the “Answer”.

      • 1
        3

        Dear MV. If I am to Elaborate, I will be entering into a forbidden territory because the information concerned is highly explosive within this Forum to get publicized. I am too glad to let you have them on a private basis. Lot of criminal activity took place under the roof of BASL. It has become a Mafia commanded by a powerful Godfather. Snake_Man wanted to know more and I gave it to him. Being a snake himself he betrayed me. He twisted it around based on his warped mind.

        • 3
          0

          ……to let you have them on a private basis…..Thanks very much but prefer not to know that which cannot be in the public domain.
          In fact till this new lot came, it had a very political stance and demeaned the stature of a professional body.

  • 12
    0

    The anodynic, circumlocutory language used by BASL in trying to address the danger posed to the independence of the judiciary shows how terrified they are of offending Nandasena. Using the pandemic as a cover, the government is making an unprecedented and brazen attempt to dictate to the magistrates what their judgements should be, and this is how Mr. Saliya Pieris responds:
    .
    “… it is the view of the BASL that as there is a strong possibility of an impression being created, if not already created, in the minds of judicial officers and of the public, that the above meeting / webinar was conducted with the aim of impressing upon judges to make particular orders in a particular manner …” Blah … Blah … Blah.
    .
    It is the stuff of satire – or rather, it is satire.

    • 2
      0

      ASD
      This Bar Association is not a political party, and the statement is not made to arouse the public
      The wording of such documents has to be careful, and people familiar with legal plaints, can see what has to be said has been said to whoever concerned.

    • 2
      0

      ASD. You must bear in mind that Mr. Jaliya Pieris has to look after his rice bawl. BASL Presidency lasts only for one year or perhaps two. His job lasts lot longer. He must be careful not to rub the Cobra or Cobras, the wrong way.

  • 10
    1

    A true king’s throne is righteousness and justice. Let the synthetic religions mentioned get a revelation of the person of truth. Bar association has got back on the sacred path discerning between good and evil. Finally when we stand before the higher judge, we will be personally accountable for the verdict released for us.

    • 4
      0

      ….Finally when we stand before the higher judge……
      What matters to most of us is the here and now of the situation and the suffering caused by these immoral rulers and their sycophants. Wish the “higher judge” will not wait for the final curtain to fall on us before judgement of the accursed.

      • 2
        1

        My View, If one needs an instant answer in the here and now, such a person has to take the law into their own hands and do the justice they now wish to by chasing away the group by some means, or have them locked up. The final judgment is certain and assured.

        • 2
          0

          Dear DTG,
          If a person can ELIMINATE the problem, as you say in that manner, (not solve it), then a “final judgement” is of no consequence.
          Also…”to take the law into their own hands and do the justice”… is not justice in that true judgement must be rendered by an independent source or sources, not just your own perception of it.

  • 8
    1

    Srilanka has reached the stage where members of the minor Judiciary have to teach the Supreme Court the meaning of the Rule of Law.
    Why not hold a Training Program at the Judges Training Institute.for all judges of the S.C.

  • 8
    0

    Did the BASL get a response to the letter they wrote to the President on the pardon of Duminda? Or was the response his appointment as Chairman NHDA? Are these letters worth the paper they are written upon?

  • 2
    0

    “Colombo Telegraph learns that magistrates in all parts of the island have no intention of following the “instructions.”
    It will be nice if it is true.
    But is CT so sure?
    The BASL document is necessary assuring for any magistrate who might have been intimidated enough to feel obliged to obey.

  • 1
    0

    There cannot be any objection to JSC holding seminars to keep the Judges updated and well informed of matters pertaining to Law and Order of the country. But, the following statement made in this letter by the BASL must receive the closest scrutiny by the people of this country as well as the International Community.
    “….with the participation of NON-JUDICIAL personnel including at least ONE OFFICIAL whose administrative orders and decisions form part of the matters that are currently under judicial considerations in several cases that have been filed or are pending before courts”.
    In fact, this matter has been raised by the Leader of the NPP in the Opposition and the Minister of Justice requested a time period of two weeks to answers the questions raised. Yet, the fact of this purported “Attendance” of “Non-Judicial” and “Official” is not in any way connected with the subject matter of the “Seminar” must be of grave concern to the public as far as the “CREDIBILITY” and “INDEPENDENCE” of the Judiciary. The “Media” has reported it and the people want to know the “Truth”. However, if that “FACT” is “TRUE”, the “JSC” headed by the CJ has already put the nail on the coffin to burry that “Lady” wearing a “Crown” on the head, who is also “Blindfolded” and holding a “Scale” in one hand and a “Sward” on the other hand.

  • 0
    0

    People in Sri Lanka worship lawyers like hell. Many are just busybodies and bayiyas who worship the government. like https://www.facebook.com/anuradha.gamaarachchi such Anuradha Gamaarachchi and such Chanika etc, these are Government National Savings Bank and such employees.. why then are they allowed to use social media to post disreputable insults about normal citizens of Sri Lanka? Did they not use free education to get to their positions? they post nonsense about everything political and use their bank employee status and lawyer status to proclaim nonsense. why does BASL allow these things? These lawyers should be stripped of their cloaks!

  • 0
    0

    HP: Whichever way you rub a Cobra, it is going to bite you. There is no ‘right way’ to rub a cobra!

  • 1
    0

    Chief Justice who has become a Cheap Justice has to be impeached!
    When cases filed by him when he was AG are now being withdrawn or pardoned by courts shows that when he was an AG they violated the laws of the land, but when he becomes the CJ they do not appear to have violated any laws. What a joke.

    • 0
      0

      The prophetical words ‘Men of Straw’ of Late Lord Winston Churchill have turned real. Men without a sense of shame.

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