By Upul Jayasuriya –
Your Lordship the Chief Justice and other Judges of the Supreme Court, your Lordship the Acting President of the Court of Appeal and other Judges of the Court of Appeal and other judges. As the head of the un-official Bar, i have the privilege of welcoming Your Lordship, Justice Buveneka Aluvihare,President”s Counsel as a judge of the Supreme Court. Bar wishes you well in fulfilling the onerous responsibilities that accompany high judicial office on the Apex Court. As Your Lordship take your seat on the court on this memorable day.
Your Lordship has done your almamater St. Sylvester’s College Kandy proud, with your appointment to the Supreme Court as the first ever student from that well respected College to have ascended the Apex Court. Your Lordship obtained your Master of Laws (LL.M) from (University of London, Queen Mary College 2004) You functioned as a Prosecutor in the United Nations Transitional Administration in East Timor,(UNTAET) dealing with War Crimes, Crimes Against Humanity and other grave crimes said to have been committed by the Indonesian Armed forces. You functioned as an Additional Solicitor General from June 2013. Your service to the Attorney General’s Department spanning over 30 years in all areas has given you the wide experience required, to take up the new responsibility that has been now conferred upon you.
Your Lordship was a sought after Lecturer at the Sri Lanka law college, from 2005 until you ascended the Supreme Court. Your appointment is undoubtedly a loss to the Law College at a time when much expected, far reaching salutary changes are being made in the field of legal education by the Council particularly with the appointment of a highly respected judge of this court as the Principal of Law College.
It is expected of every Judge anywhere that he or she discharge judicial functions as fair, balanced, strong and an impartial Judges receiving the acceptance and respect of the Bar. Judges and lawyers should always be men and women who do not compromise for their gain and who are not willing to trade their conscience and dignity, which are precious and priceless assets in the practice of the Law and the administration of Justice.
Let me quote from the iconic Lawyer, statesman Nelson Mandela who acquired global recognition as a roll model for lawyers and statesman during his life time;
“Our new order must therefore be based on constitutional democracy in which regardless of race, gender, religion or political opinion, the law will provide for the equal protection of all. It will be an order in which the government will be bound by a higher body of rules – an empire of laws – and will not govern at its discretion. We reject an empire of man; we require the rule of law, as opposed to what Aristotle called the “passion of men”
My Lord, the Chief Justice may I have your indulgence to also use this occasion to pay a tribute to a great judge of the Supreme Court, who retired in the past year having blazed a trail in our legal history. Justice Nimal Gamini Amaratunga who bowed out a few months ago bequeathed an important legacy of judicial independence to his successors in office which we hope will inspire all others. I on behalf of the Bar wish him good Health and Happiness.
Let me also on behalf of the bar wish speedy recovery to another judge who stood for judicial independence, President of the court of Appeal Justice Sri Skandaraja speedy recovery.
As Lawyers and Judges, our Profession has constantly stood firm in our determination to protect Judicial Independence and professional integrity. We have steadfastly defended our right to practice our profession with dignity and independence whilst endeavoring to protect the independence and safety of the Judiciary. These are the very basis of the highest principles on which the legal profession is founded. if we do not do so and if we do not succeed in doing so, then every person who seeks justice will be at risk.
We in this country witnessed the adoption of the 18th amendment to the Constitution which has serious implications for democratic governance. The historical 17th amendment that was assented to by the entire 225 members of Parliament created the constitutional council. When this was repealed Executive was tasked with making appointments to the apex Court. However we remember that Similar powers was vested with the executive when appointments were 1st made under the Constitution and Chief Justice Neville Samarakoon, Justice, Mark Fernando, Justice Amarasinghe and several other Judges were appointed to the Supreme Court. thereafter they functioned as courageous and independent Judges.Their names will go down in our memory lane inscribed and emblazoned for their courage in developing the Law on fundamental rights, with their courage to hold against the very executive that appointed them.
We have no doubt that Your Lordship Justice Aluvihare has the intellectual capacity, strength of character and the courage to follow that great tradition. Your Lordship shall rest assured that the Bar will be behind you in every step of this Journey at all times.
An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice.
To secure these aims: Latimer House principles, adopted in Edinburgh 2006 by the Commonwealth should be upheld with our country Sri Lanka now holding, its Chair in office of the organization.
Permit me to quote these principals that are relevant to the Judicial Appointments.
(a) Judicial appointments should be made on the basis of clearly defined criteria and by a publicly declared process. The process should ensure equality of opportunity for all who are eligible for judicial office; appointment on merit; and that appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination;
(b) Arrangements for appropriate security of tenure and protection of levels of remuneration must be in place;
(c) Adequate resources should be provided for the judicial system to operate effectively without any undue constraints which may hamper the independence sought;
(d) Interaction, if any, between the executive and the judiciary should not compromise judicial independence. Judges should be subject to suspension or removal only for reasons of incapacity or misbehavior that clearly renders them unfit to discharge their duties.
We are entitled to have the confidence that these principles, that have been accepted globally, will be observed in our Country too. At least let us look forward to a brighter future.
Due consideration should be given to career Judicial Officers who have worked hard to administer justice over their entire careers. Career Judicial Officers should and must have the assurance that they can reach the Court of Appeal and the Supreme Court during the course of their judicial career.
If these salutary rules are breached, the outcome and its impact on the rule of law would be devastating.
There should be a set of transparent criteria and a due process for the appointment and promotion of Appellate Judges which is not vested solely in the hands of the appointing authority. If this is not implemented, Public confidence in the independence and impartiality of the judiciary would then be irreparably impaired.
Judges must be given security of tenure, there must be independent procedures put in place for their appointment and removal. It is time to consider the urgent need for amendment of the provisions of the Constitution which we have seen do not conform to these standards. We refer to the provisions suggested in the ill fated 2000 Constitution.
Judges must be financially secure. At least the judges of the superior courts, who are relatively few in number, should continue to receive all the benefits that they enjoy as sitting judges until their death. The obnoxious practice of conferring privileged positions on judicial officers after retirement at the discretion of the executive should cease.
As a profession, we shall not accept any compromise in the integrity of the judiciary. It is our duty to foster and maintain the public trust in the hallowed institution that was nurtured over centuries, with dedication and sacrifice.
We have seen instances where the principle of equality before law appears to have been undermined, especially in cases involving influential persons. Public cynicism is widespread in regard to the manner in which the principle of equality has been ignored.
It is the responsibility of the judiciary and the Legal fraternity, to collectively strive to remedy this crisis of confidence, which has eroded in immeasurable manner.
This “state of lawlessness’ has to be curbed and controlled by the judiciary. This is the essence of the rule of law, and it goes to the roots of constitutionalism. It is the solemn function of the judiciary to ensure that no constitutional or legal functionary or authority acts beyond the limits of its power nor that there be any abuse or misuse of power. Be it the common man, the legislator, the legislature or the executive, judicial activism should be applied with vigor and without favour. This solemn function can not be discharged with out the commitment of the legal profession.
The judiciary stands between the citizen and the State as a bulwark against executive excesses of misuse or abuse of power or the transgression of constitutional or legal limitations by the executive as well as the legislature.
Pandit Nehru, while speaking about the judges of the Supreme Court in the Constituent Assembly which framed the Indian Constitution, observed:
“It is important that these judges should be not only first-rate but should be acknowledged to be first-rate in the country and of the highest integrity.
The integrity and independence of legal systems and judicial institutions and the very law itself cannot be of concern to only lawyers and judges in Sri Lanka. Rather, it is of paramount concern of all citizens to have regard and respect for rule of law and it is the paramount duty of both the Judiciary and the Bar to guard and protect the rule of law and, as the head of the UN official-Bar, I can state with all conviction that the Bar will discharge this duty and that we are confident and trust that the Judiciary will do so too.
There are many judges who have had the will and the courage to stand up for what is right with willingness to make sacrifices. They may have sacrificed decades of impeccable professional life and well deserved and warranted hopes, for the sacred cause of Judicial independence. Permit me to say that such judges are immortal and live in the hearts of the people of the Nation for ever and ever.
Let me conclude by describing the qualities of a true Judge as worded by Thomas Jefferson:
His integrity was most pure, his justice the most inflexible I have ever known, no motives of interest or consanguinity, of friendship or hatred, being able to bias his decision. He was indeed, in every sense of the words, a wise, a good, and a great judge.
The Bar has confidence that Your Lordship will be such a Judge in this Honourable Court and the Bar and I personally wish you well as you assume this high Office.
*Speech delivered by Upul Jayasuriya , the President Bar Association, at the ceremonial sitting of the Supreme court welcoming the Buveneka Aluvihara PC as the Supreme Court judge