‘JSC, tribunal of limited jurisdiction’ - Part II:

Who is trying to frighten whom?

Text of the speech delivered by External Affairs Minister Prof. G.L. Peiris in Parliament on October 25, 2012

Therefore, if the Judicial Service Commission states that a judge cannot seek protection without its agreement, it can be clearly stated as a situation where the Judicial Service Commission exceeds the scope of its authority, and the use of powers it does not possess.

Therefore, Deputy Chairman of Committees, my point is that there is the Judicial Service Commission, it has certain tasks and duties. This is protected through our constitution. Yet, the Judicial Service Commission is there to provide some support and relief to our judges. If the Judicial Service Commission states that a judge cannot seek protection, cannot make a complaint to the Police or take any such step without its agreement, we must undoubtedly identify this as a situation of the wholly wrongful use of its limited powers that is harmful to judges. The other matter we can present without any doubt is (interruption) - I did not cause any interruption when you were speaking. I did not tell you anything even when you were speaking with reference to me.

Deputy Chairman of Committees, both Anura Kumara Dissanayake and Wijayadasa Rajapaksa made reference to the 17th Amendment to the constitution. Both of them said it is a very good law, a highly praiseworthy law, which should receive the support of all. Now, Deputy Chairman of Committees, what does the 17th Amendment to the constitution state about the appointment of the Secretary of the Judicial Service Commission? Let us look at Section 111of the 17th Amendment. “The constitution should have a secretary who should be appointed from the senior judicial officers of the courts of first instance”.

This refers to a senior judge among the judges in the courts of the first instance. According to the 17th Amendment which both of you very correctly praised, it is not possible to appoint anyone to such a position. Who can be appointed? The 17th Amendment to the constitution includes a very clear definition of the requirements of the person being appointed. If we consider the background to this… before the 17th Amendment, under the relevant Clause in the constitution, such power was vested in the President. The power to appoint the Secretary to the Judicial Service Commission was with the President. Through the 17th Amendment to constitution that power was taken away from the President and it was given to the Judicial Service Commission. However, it did not stipulate to the Judicial Service Commission to appoint anyone it wishes. There was a basic requirement for this purpose. This requirement was that such person being a senior judge service in the courts of first instance.

Deputy Chairman of Committees, if we next examine what the courts of the first instance are; the courts of the first instance are clearly defined in Article 2 of the Judicature Act. Accordingly, the High Courts in this country are considered courts of the first instance. (Interruption) No. Courts of first instance. Therefore, the Court is included in the Courts of first instance. Accordingly, it is a senior judge who should be appointed. But, who has been appointed? It is not a High Court judge but a District Judge.

Judicature Act

Deputy Chairman of Committees, I will now table this seniority list that is with me. I respectfully request you to include this in Hansard. The officer who has been appointed is the 30th in this list. This means there are 29 District Judges who are more senior to the person appointed. I am not speaking here of High Court Judges. They can also be appointed to this position. There are 60 High Court Judges under the Judicature Act. Subsequently, Rauf Hakeem brought an amendment to this House. Accordingly the number went up to 75 from 60, and now there are 75 in the High Courts. Anyone of those judges can be appointed as Secretary of the Judicial Service Commission. But no such appointment was made. Instead of appointing any of them, it has been decided to appoint a District Judge. Among the District Judges the person appointed was the 30th. Deputy Chairman of Committees (Interruption)…….
(Prof. Peiris)

Under the 17th Amendment to the constitution that responsibility does not lie with us, but with the Judicial Service Commission.

Deputy Chairman of Committees, I table this list.

Wrong appointment

I have taught the majority of the 29 judges on this list who are placed higher than the 30th. I have taught law in the University to the majority of these 29 District Judges who have been ignored. I clearly know that they have knowledge of the law, that they are honest, that they are both keen and able to serve. Therefore, on this matter, they have become a cause for the situation that has arisen. That is human nature; what is integral in human experience.

It is the same in a bank or government department. I know very well what would happen in even a teaching department of a University if without cause a junior person is appointed to supervise their seniors. It is an invitation to disaster. Deputy Chairman of Committees, this is human nature. No one will agree to that practice.

If a person who is junior to one is appointed above one, invariably there will be conflicts in such an institution. Therefore, there is an unquestioned necessity to find out the special qualifications of this person appointed. What is the special qualification? What is this person’s special qualification to appoint this person overlooking the large number of judges who are senior to him? These are major questions relevant to the situation that has arisen today; these are powerful reasons.

Anura Kumara Dissanayake spoke of the foundation and basis of law. If he asks me to define the essence of administrative law in one sentence, if I am asked what the most valued principle in such law is, I will clearly tell him it is the use of all discretionary powers with justice. All law is built entirely on this foundation.

In many instances diverse theories of laws have been created to suit different societies, in order to achieve this purpose. Discretionary powers cannot be used in self-willed or arbitrary manner. This is contrary to the sovereignty of the law. Our constitution has not given the Judicial Service Commission unlimited discretionary power.

The appointment of a senior person is a compulsory requirement. Has this been done? It has not been done. Therefore, this House declares that this is a violation of the constitution. Due to this appointment the constitution of Sri Lanka has been clearly violated.
(Ajith P Perera)

Why did you look on for so long?
(Sujeewa Samarasinghe)

In that case is it corrected by assault?

(Interruptions – the Deputy Chairman of Committees asks the two above MPs to be seated).
(Prof. Peiris)

Deputy Chairman of Committees, the government too has a right to express its views to this House. The government too has a right to speak about this. In this instance the constitution has been violated. I have already tabled the relevant list on the seniority of judges.

Deputy Chairman of Committees, I would like to ask who is trying to frighten whom? There was much said about driving fear. The Circular issued by the Secretary of the Judicial Service Commission on July 4, 2012 states that : “The Judicial Service Commission takes every decision with regard to judicial officers after much careful consideration”.

We do not in any way consider this a correct statement. These decisions have not in any way been properly considered in keeping with principles of law. Accordingly, this a wrong statement. It is not only that, Deputy Chairman of Committees, the sixth paragraph of this Circular states that, “judicial officers should in no way act to instigate lawyers, other individuals or organizations to interfere (mediate) directly or in any other manner about the decisions of the Judicial Service Commission. If the Judicial Service Commission is satisfied that any judicial officer has acted in such a manner, the Judicial Service Commission may regrettably have to take strong decisions about such a judicial officer, and is so brought to your notice, according to the order of the Commission”.

That is not all. When talking of driving fear this is what it states. This Circular has been sent to all judicial officers serving in this country.

To be Continued