The Lawyer’s Collective calls for a prompt response to recent allegations of abuse of judicial office against the President of the Court of Appeal by MP Roshan Ranasinghe (Minister of Sports) on 8th November 2023 in Parliament. Any allegation of abuse of office by a superior court judge is a very serious matter. Similarly, undermining orders by a court under the cover of privilege in Parliament without formal complaints is equally very problematic.
We recognize that corruption and abuse of office have a stranglehold over many institutions of government in Sri Lanka. Actual or even perceived corruption within the judiciary of a country can fundamentally erode democracy and the rule of law. Therefore, it is crucial that expeditious, transparent and robust measures are taken in light of any allegations against a judicial officer to determine if these are true or false, in order to protect the integrity and independence of the judiciary. We remind that the independence of the judiciary is fundamental to protecting the fundamental rights of people and maintaining the sovereignty of the people of Sri Lanka, as guaranteed by Articles 3 and 4(c) of the Constitution.
Apart from a procedure for impeachment, there is no transparent and accountable process in place for disciplinary investigations and actions against judicial officers of the superior courts. Impeachment and removal of a judge of the superior courts is provided for in Articles 107(2) and (3) of the Constitution and Standing Order no. 84. Notice of a resolution must be tabled in Parliament signed by not less than one-third of the total number of Members of Parliament, setting out full particulars of the misbehaviour (Article 107(2) of the Constitution), and the Speaker, in consultation with the Prime Minister and the Leader of the Opposition in Parliament, shall appoint a panel of inquiry consisting of three retired Judges of the Supreme Court to investigate the alleged misbehaviour or incapacity of the Judge concerned (Standing Order 84). If the judge is found guilty by the panel, the findings will be presented by the Speaker to Parliament for approval. If a majority of members of Parliament vote in favour of the resolution that determines the judge to be guilty, the Speaker shall forward the resolution to the President for an order to remove the relevant judge. The high threshold for initiating the impeachment procedure must not prevent all allegations from being investigated and addressed.
The Lawyer’s Collective urges the superior courts to establish an internal regulatory system that addresses ethics and discipline in these Courts whereby the procedure of impeachment by Parliament becomes a measure of last resort. The superior courts must ensure that any allegations are promptly dealt with appropriately and findings made public. This is necessary to safeguard the independence and integrity of the judiciary. Any allegation of conflict of interest or dereliction of duty or misconduct must be subject to a credible investigation that publicly exonerates or confirms guilt. An internal procedure for addressing such matters is critically important to create public confidence in the judiciary’s contribution to administration of justice in our country.
The superior courts should also formally promulgate a binding code of conduct and ethics for superior court judges, which was mooted a few years ago.
Best practice dictates that a judge named in allegations in the public domain as having failed to declare a conflict of interest in a case should recuse oneself from the said case until an internal procedure that establishes that there is no such conflict is concluded.
There must be collective support for this from the judiciary itself under the leadership of the Chief Justice. In this instance, the Chief Justice must also ensure that any processes for promotion which may be due for the relevant judge are suspended pending a clearing of allegations or complaints.
We emphasize yet again that appointments made by the President to the superior courts in consultation with the Chief Justice and as approved by the Constitutional Council must be on merit and integrity rather than merely on seniority.
The recent allegations against the President of the Court of Appeal were made on the floor of Parliament by MP Roshan Ranasinghe in the context of stay orders issued by the Court of Appeal suspending an Interim Committee appointed to Sri Lanka Cricket. Whilst this speech is protected from charges of defamation or contempt of court by Parliamentary privilege, it contravenes standing orders 83 (1) which prohibits commentary on the personal conduct of judges except through the tabling of a substantive motion relevant to such conduct.
Upholding the independence of the judiciary requires that members of Parliament act responsibly when they come into custody of information relating to the corruption or abuse of office of a judicial officer. They must refrain from misusing the protection afforded to them by Parliamentary Privilege.
It is also important to remind lawyers that their interactions with the judiciary are a matter of public concern. Lawyers must not have a hand in questionable practices.
Actual and perceived interference with the exercise of judicial office whilst being criminal and subject to rules of discipline in the legal profession, also amounts to a direct undermining of the rule of law, democracy and the sovereignty of the people.
Rooting out corruption in all institutions, building a political culture that is respectful of the checks and balances between arms of the state, and securing the integrity of the judiciary, are vital to Sri Lanka’s progress – be it economic recovery, strengthening democracy and protecting the interests of the sovereign people of Sri Lanka for the present and the future of this country.
On behalf of the Lawyers’ Collective;
Mr. Upul Jayasuriya, President’s Counsel
Dr. Jayampathy Wickramaratne, President’s Counsel
Professor Savitri Goonesekere, Attorney-at-Law
Mr. Geoffrey Alagaratnam, President’s Counsel
Mr. M.A. Sumanthiran, President’s Counsel
Mr. Dinal Phillips, President’s Counsel
Mr. S.T. Jayanaga, President’s Counsel
Mr. M.M. Zuhair, President’s Counsel
Mr. Lal Wijenayake, Attorney-at-Law
Professor Deepika Udagama
Mr. Upul Kumarapperuma, Attorney-at-Law
Mr. K.W. Janaranjana, Attorney-at-Law
Mr. Harshana Nanayakkara, Attorney-at-Law
Mr. Akalanka Ukwatta, Attorney-at-Law
Ms. Ermiza Tegal, Attorney-at-Law
Mr. Manoj Nanayakkara, Attorney-at-Law
Mr. Amila Egodamahawatta, Attorney-at-Law