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,  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.
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,
Judicial Service Commission,
His Lordship Justice Buwaneka Aluwihare, PC
Judicial Service Commission,
His Lordship Justice L.T.B. Dehideniya
Judicial Service Commission
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,  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.
Saliya Pieris, PC
Bar Association of Sri Lanka
Bar Association of Sri Lanka
CC: Hon. H. Sanjeewa Somaratne
Judicial Service Commission