25 September, 2020

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This ‘State Of Lawlessness’ Has To Be Curbed And Controlled By The Judiciary

By Upul Jayasuriya

Upul Jayasuriya

It is my duty as the elected head of the un-official Bar with a legal fraternity of over 15,000 attorneys spread around the country, to have the privilege of Welcoming your Ladyship. I am joined by not only those who are present here today but the entire membership of the Bar Association of Sri Lanka.

I rise today in this august assembly with a mandate from the entire legal fraternity to warmly welcome  your Ladyship Justice Malini Gunaratna as you take your rightful place in this Honourable Court. The entire Bar wishes you well (confidence and strength ) in the onerous tasks that will be taken over by your Ladyship. This day will be a memorable day for  your  Ladyship since  Your Ladyship has  the  distinction of a traditional welcome by the Bar.

Your Ladyship having had the early education in the south had done proud by your alma mater, the leading girls school Sangamittha. Having been called to the Bar in 1979 you have served the Judiciary for 27 years in many out stations including, Colombo, Kurunegala, Panadura and Chillaw as a High Court Judge. Your Ladyship obtained the Masters Degree in Law at the Deaking University Austrailia with international exposure in National Law School in Bangalore and National Judicial College at the University of Nevada, Reno.

It is the dream of every Judge to be able to ascend to the apex court in the Country having discharged his or her duties as a fair, balanced, strong and an impartial Judge with the acceptance of the bar. In general, though with a few exceptions, Judges and lawyers do not compromise and are not willing to trade their conscience and the dignity, as it is precious and priceless.

Let me quote Martin Luther King,”Human progress is neither automatic nor inevitable… Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals”.

In each day of our lives, in our professional work, we try to guarantee this right of a fair trial to our clients, whatever their social or economic status and standing. Every night, as we study our briefs and every working hour we spend in court or every night you burn midnight oil with your pen on paper in endeavoring to hold the scales of justice fairly, and this is our preoccupation.

If we lose our struggle for judicial independence and professional integrity, if we cannot defend our right to practice our profession with dignity and independence whilst ensuring the safety of the judiciary on the basis of the highest principles on which the legal profession is founded, then every person who seeks justice will be at risk.

In the back drop of the abrogation, by the 18th amendment , of the historical and salutary 17th amendment that was assented to by the entire 225 members of Parliament which created the constitutional council, Your Ladyship’s appointment to this Honourable Court is particularly welcome.

An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice.

To secure this, Latimer House principles were adopted in Buckinghamshire, United Kingdom in 1998, inspired by the Law Ministers of the Commonwealth in 1996. This is the work labored by Commonwealth Associations of lawyers, judges and educationists. It took 10 years to have them assented by the Commonwealth in 2008.

Theses principles have laid down that;

(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;

(b) Arrangements for appropriate security of tenure and protection of levels of

remuneration;

(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.

It is necessary that we should have the confidence and the legitimate expectation that these principles, that have been accepted globally, will be observed in our Country too.

In this regard, judicial appointments should be made on the basis of merit and seniority. Judicial appointments should not be made on the basis of political considerations. Due consideration should be given to career judicial officers who have worked hard to administer justice over their entire careers. 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 one 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.

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 unfortunate 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.

Those institutions which are more directly linked to law enforcement and the administration of justice, should not be placed in jeopardy either. There are also other statutory bodies that are vested with quasi judicial functions who should be protected from facing problems due to politicization and the loss of professional independence.

We have seen frequent instances where the principle of equality before law appears to have beeb 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. There appears to have been several instances of apparent impunity for politically influential persons who openly violate the law. Others who may, under normal circumstances not be penalized, have been arbitrarily punished by politically influential persons.

It seems the rule rather than the exception, that the law that applies to people with right connections can be different to the law that applies to the powerless and the people with divergent views. It is with some satisfaction that , we see that, in the very recent past, there have been several instances of persons, who may have thought they were immune from legal consequences, being now brought before the Courts . We hope this trend continues.

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 or the legislature, judicial activism should be applied with vigor and without favour. This solemn function cannot be discharged with out the commitment of the legal profession.

The judiciary stands between the citizen and the state as a bulwark against the executive excesses of misuse or abuse of power or the transgression of constitutional or legal limitation by the executive as well as the legislature.

It is therefore, absolutely essential that the judiciary must be totally free from executive pressure or influence and must be fiercely independent. Independence, of course, is a quality which must come from within the heart. It must be a quality which is part of the very fabric of the judge’s existence; but even so, judges must not be exposed to executive threats, inducements and must remain independent and fearless.

Permit me to quote Sir Winston Churchill, from what he observed:

“The principle of complete independence of the judiciary from the executive is the foundation of many things in our island life. . . . The judge has not only to do justice between man and man. He also has to do justice between the citizens and the State. He has to ensure that the administration conforms with the law and to adjudicate upon the legality of the exercise by the executive of its power.”

Impartiality is the essential quality which must be possessed by a person occupying judicial office.

One of the verses in the Hindu scriptures say that a judge must be blessed with the following qualities:

“He should be learned, sagacious, eloquent, dispassionate, impartial; he should be a guardian to the weak, a terror to the wicked; his heart should cover nothing, his mind be intent on nothing but equity and truth.”

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”

I have no hesitation to say that your ladyship has all the qualities of a fearless judge. Your Ladyship is scrupulously honest. Having said so I believe that your Ladyship in the new environment that you are placed in, would approach matters with compassion and kindness.

Judges, however, are human beings with the frailties and failings which common people have as they are not divine, and their independence and impartiality in cases where the State is a party are likely to be impaired by the fear of losing their careers. Security of tenure and the legitimate expectation of promotion based on seniority and merit, therefore, is essential. The tenure of judges and their promotion cannot be made dependent on the mere pressure of a government. It must be secured against executive and legislative action.

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 ultimate 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 elected head of the 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.

It is not my endeavor to seek what benefit I could derive as the Leader of the Bar. I am conscious of the fact that I will be called upon to make many a sacrifice, some of which are personal.

Your Ladyship can be contended that your Ladyship has ascended the Court of Appeal flanked by judges who have had the will and the courage to stand up for what is right and with willingness to make sacrifices, of even decades of impeccable professional life and well deserved and warranted hopes, for this sacred cause.

Your Lordship the President of the Court of Appeal,……..permit me to say that such judges are immortal and blissfully live in our hearts for ever and ever.

Let me conclude by describing the qualities of a true Judge as worded by Thomas Jefferson, the third President of the United States of America.

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 every confidence that Your Ladyship will be such a Judge in this Honourable  Court and the Bar and I personally wish you well as you assume this high Office and welcome your well deserved appointment.

*Speech made by Upul Jayasuriya , The President of the Bar Association at the Ceremonial Welcome of Justice Malini Gunaratne 

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Latest comments

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    Hope the Rajapakses read this.

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      They will read, but the question is “will they understand”?

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        This Idiot says all the institutions but his is coruptive while his is the most corruptive one.

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        Judiciary in Sri Lanka is one of the most corrupt institutes and has been substantially responsible for the ‘State Of Lawlessness’ in the country.

        If anybody is to take Upul Jayasuriya seriously, this group (of judges and lawyers), should clearly demonstrate that they are working against the corruption in the Judiciary System. Then only will people accept the argument that the Judiciary is source of control to curb the ‘State of Lawlessness’ (why is this phrase in quotes?)

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    This man talking nonsense Aney. How can Judiciary or even Legislature control lawlessness when there is enough corruprtion amnong them. For a small Rs 1.5m trillium bribe, they are prepared to take over important cases so that they can give favourable verdict and win the case for the bribe master.Big big degree from Australia and Reno, Nevado. But if see money everything fly out of the window. Aney what is happening to our country. Deiyyo Saaki.

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    Lawyers do a job there is a standard fee, there are expenses transport , preparation of documents, salaries for employees, maintenance of an office etc, anything far exceeding professional fee if there is proof it s not acceptable.

    If there is no legal profession to control corruption and crimes it is more costly for the society. Lawlessness need to be addressed otherwise there will be complete brake down of social and democratic frame work in a nation.

    It is only the corrupt individuals to cover up their crimes that criticize and undermine the judiciary.

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      Henry M., start issuing receipts for the payments lawyers accept from their clients and then we’ll talk about how charges tally with expenses. Lawyers don’t issue receipts precisely because they cannot justify the exorbitant amounts they charge from clients.

      THERE IS BREAKDOWN of social and democratic framework in Sri Lanka already and your “legal profession” is partly responsible for that. Haven’t you heard the news yet?

      It is the corrupt “legal professionals” who defend the appalling state of the the Judiciary in Sri Lanka today. Those who criticize are the victims of that system.

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    Judiciary is the most corruptive Institution in Sri Lanka. Judges are openly and serectly taking bribes and many cases corrupted by lawyers and Police officers. I obtained a favouarable decision to my garage which operate in very resident area in 12 perch land with less than 10 feet road in Municipal area. All the Authorities such as Central Enviornmental Authority, PHI, Police and everybody gave reports as this garge can not be approved and it has to closed due to many proved scientific reasons. But magistrate got 5 lakshs from me and gave decision to Provincial Council to give me licence blaming them. Mr Upaul what are talking. While having all reports against my garge I won it. Where your justice. You taek more than 70% sri Lankn politicians are lawyers (Everybody knows how they enter law college and pass the examination. Citizens never ever expect justice from corruptive Sri Lankan Judiciary.

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      Which is the most corrupt Sri Lankan Judiciary or the Government? Who are the mostly responsible for crimes Judiciary or the others?

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        You can make an intelligent decision on who is most corrupt only after analyzing true data from these institutes which is will next to impossible to come by.

        Apart from that it is anecdotal evidence and this varies from individual to individual.

        But you can be assured of one thing; both are unbearably corrupt. So what’s the point in asking which is worse?

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    Permit me to quote Sir Winston Churchill, from what he observed:

    churchill was known as a racist.

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    Many say that the Judiciary can be bought.

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    Mr Jayasuriya. How can the judiciary control this lawlessness when the legal CJ is alleged to have been got rid of illegally?

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      Yes but the legal CJ also played illegal games when she was in power. Dont forget Putha.She shouldhave upheld the dignity of her position instead of prostituting it for gains.

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        In that case, old man, they should have pulled her up on those illegal games immediately and not wait until she gave an unfavorable decision on the Divi Naguma bill and refused to meet the President.

        The sequence of events, as it stands, suggest your Tsunami Mahinda was was willing to look the other way, if the Legal CJ had been willing to play his lap dog/bitch.

        Doesn’t look too good for your kidney patient does it, geezer?

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    Dear Mr Upul

    Read the following parts of well known Sri Lankan internationally renounced professor’s part of the research article. I guess this real professor has already left the country sometime back.

    1) Key Issues in Sri Lankan Judiciary
    Many recorded and un-recorded strong evidences are existed regarding the abuse of entrusted power for private gain undermining justice by the judiciary in Sri Lanka. This is happening in lower level to high courts in various forms (Ivon.V, 2003; Marga Institute, 2002).
    On the one hand it denies victims and the accused the basic human rights of a fair and impartial trial and on the other, it has a far reaching negative implication for whole Sri Lankan society and its main socio-economic and political fabric.
    Sri Lankan judiciary mainly understands their duty as to settle disputes between different citizens and their organizations. Judiciary is very weak in settling disputes between state and the citizens.
    This can lead to erosion of the ability of the international community to tackle transnational crime and terrorism, diminish of trade, economic growth and human development and finally it denies citizens impartial settlement of disputes with neighbors or the authorities by loosing confidence of the law of the land.
    Dishonored judicial system undermine confidence in good governance across all sectors of government by giving a dull message: corruption is tolerated and legalized in this society and people must find alternative ways of justice or get used to live with corruption. It has many negative impacts for sound less poor people in Sri Lankan society.
    The main forms of bad governance in Sri Lankan judiciary starts from political interference in judicial processes by the executive or legislative branches of government to bribery and nepotism, etc.
    The Sri Lankan judiciary has very many provisions to improve its checks and balances, transparency and accountability aspects. But practical implementations of these are not happening due to very many reasons.
    Judges form only one part of the ‘judicial system’ in Sri Lanka. They only operate after the police, prosecutors, lawyers and other court personnel have entered to the scene. Therefore, judges alone can not be achieved so called good governance without proper stakeholder integration in the whole chains of Judiciary.

    2) Reasons for the corruption and bad governance in Sri Lankan Judiciary
    The failure to appoint judges on merit, which can lead to the selection of corruption-oriented judges.
    Appointing judges with a bad record and misconduct for senior judicial position gives a bad example for the whole Sri Lankan society.
    Poor salaries, bad working conditions and lack of training makes judiciary personals vulnerable to bribery.
    Unfair processes for the removal of corrupt judges, which can lead to the politicization of judge transfers and removals.
    Complex and outdated court procedures that can make it difficult for the media and civil society to monitor court activities.
    Insufficient resources and backlogs of cases.

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    Dear Upul Jayasooriya,

    The Judiciary is fine, if the judiciary is respected, and when there is law and Order.

    When, there is chaos, anarchy, lack of law and order, then, the law and order comes from the barrel of a GUN.

    Look at the Sri Lanka Policemen. DIG kills. Contract killings.

    One needs perhaps the Armed forces, on top of the police, to keep law and order.

    Then Lanka Police is corrupt from top to bottom. On the top is the secretary of Defense, and the President is on top of that.

    “Okkoma Horu”. All are thieves, bandits.

    Read

    srilankamirror.lk/news/8201-top-chairs-behind-dig-vass

    DIG Vass Gunawardhana too is being detained under the accusation of involving in the same incident.
    According to the confessions, the CID has retrieved information regarding a corrupt SP in Kelaniya division and an OIC in Colombo Crime division.
    IT has been discovered that many wealthy businessmen and senior officials had had close relations with DIG Gunawardhana and some o his close associates are to be arrested soon.

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    The judicary can curb lawlessness if it takes a firm line with law enforcement.
    The judiciary should protect citizens from police excesses which are now rampant.
    Too many citzens are tortured,and too many are dying in custody in police stations and prisons.
    Why is the judiciary unconcerned about the report into the murder of 27 prisoners last November,which amounted to ‘wholesale’ murder of citizens in custody?.
    Why does judiciary accept automatically that burial of the bodies of citizens who died in prisons,are a matter of “national security” – and deny the family, burial rights?
    Why are ordinary citizens sent to remand jail,end up as victims of torture, but some are suddenly “falling sick” and allowed to be hospitalised,without demanding the nature of the illness from the medical officers concerned?
    Why 65,000 cases pending in courts?
    Why inordinate delay in trials of politicians accused of murder?
    Why no insistence on presence of lawyers during interrogation by law enforcement like in other countries?
    Why are postmortem reports in murder cases kept a secret?
    Why dont judges hear cases for 8 hours daily like all public servants and thus expedite them?
    All this traditional pontification by Upul Jayasuriya amounts to nothing unless the cause of justice is served.

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    In 70’s, most of the people who got into Law College were only managed to get through GCE O/L (5/3). Other qualification was English knowledge and some extra money their parent willing to sacrifice.
    So most of senior people in judiciary (> 70%) could be this sort of people.
    Can you expect any better?

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    Mr. Fedrick please give that full article or www. This is the first time I got to know that Sri Lanka has such brave and high caliber academics. God bless such good researches and professors. But unfortuantely good people already left the country and bad people preaching BANA

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    Mr Jayasuruya, please be honest to yourself first. There was a serious allegation of misconduct and dishonesty made against you to the CJ Shirani B, concerning your improper conduct in the Colombo Dockyard case. You pleaded to Shirani B at her chambers and avoided disenrolement.

    Remember that some concerned lawyers have the entire copy of the disciplinary case-record maintained at the Registry of the Supreme Court, including the affidavit given by the Petitioner in the Colombo Dockyard fraud with all the chages fully explained. If you are innocent and deny this well founded allegation, I challenge you to do so. Please understand that you can’t take on learned people, when you yourself is absolutely corrupt.

    Now the ball is in your court, it is for your own good that you to prove your innocence if there is no truth in this well founded case against you, backed by all documentary evidence.

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    This is a very good example that demonstrates how corrupt the whole system is. This explains why More than 90% of the lawyers refused to cast there vote at the BASL elections which permitted UJ to win the elections.

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    Those who have known Upul Jayasuriyas political life and legal career for the last 40 years will be surprised to hear all these high stuff he is talking about now.Even Jayasuriya admitted that he was not a popular personality and that he won the presidency of the bar association only because of the high handed approach of the government towards the former Chief Justice.All decent people and most of the lawyers were disgusted by the action of the government.If Upul Jayasuriya is fighting on that issue we will still support him. But he should not preach to us as if he is a virtues man.When the UNP stoned the houses of judges and locked them out of their offices where was Mr Jayasuriya ? Can they efford to talk about judicial integrity when a former Attorney General who took to UNP politics took bribes as a Minister ? And that was in connection with arms procurment which affected the lives of our soldiers.He is a big shot in the UNP lawyers Association even today !That is utter hypocrisy. Be true to yourself Mr Jayasuriya and his followers with political agendas.

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    Everyone has an agenda. So is this opposition lawyer Jayasuriya. Don’t forget – former CJ was appointed from no where by former President CBK. However this practice is seen elsewhere including the USA as recently seen by Presisent George W Bush’s appointments to the Supreme Court.

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    Ther are no Laws and justice in Bannana Republicks….!

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    The comments of the last few guys are all [Edited out]. Lets have some basic intelligence in making comments though it is free of charge.

    I dont think any one of you guys (last few comments) have read the speech that was made by the BASL President.

    Is he saying the right thing or not?
    Has he had the courage to say it all?
    does he stand to gain from the speech he is making or not?

    Lets answer these questions sincerely. I dont think he stands to gain at all from this kind of a speech. He is only drawing the anger of the government. Of course he is saying the right think which no one has had the guts or the courage to say such things to the very face of the people who have been up to all the mischief.

    He needs to be comended by the civil society for his courage to say it all with nothing to gain out of it.

    Dear Mr. Jayasuriya, Pl. keep it up. We are proud of you.

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