_ BackTHE JUDICIARY
An independent judiciary is the one institution of the Country which provides a citizen however humble he may be,with protection against any unlawful, arbitrary or oppressive acts of the executive. Such a judiciary is clearly a sine qua non for a democratic State. That independence is manifestly a pearl of great price that must be protected, fostered and nurtured at all costs -for if the People lose faith in the Judiciary only chaos and anarchy can result.
At the apex of the Judiciary are the Supreme Court and Court of Appeal. The independence of the Judges of these Courts is ensured by several constitutional provisions. The details of these provisions are not germane to the subject of this book because the 'Package' does not seek to change the structure of these Courts.
Immediately below the Court of Appeal is the High Court. The Judges of the High Court are appointed by the President and exercise both original criminal and admiralty jurisidiction and limited appellate jurisdiction. The independence of Judges of the High Court is ensured by Constitutional provision that the President may dismiss or take disciplinary action against any of them only upon the recommendation of the Judicial Services Commission (16).
Below the High Court are the other 'Judicial Officers' comprising of District Judges, Magistrates, Presidents of Labour Tribunals and Primary Court Judges. The independence of these judges is ensured by all powers in respect of appointments promotions, transfers and disciplinary control of such judicial officers being vested in the Judicial Service Commission (17).
The institution through which the independence of the Judges of the High Court, District Judges, Magistrates, Presidents of Labour Tribunals and Primary Court Judges, is ensured is therefore, the Judicial Services Commission. This Commission is composed of the Chief Justice and two other Judges of the Supreme Court (18). By convention those two Judges are the seniormost Judges after the Chief Justice. Thus, all matters vis-a-vis the 'Minor Judiciary' and disciplinary matters vis-a-vis the High Court are attended to by the first three Judges in the judicial hierarchy of the Land. It is unthinkable that any such Judge should in any way be susceptible to political pressures or influence. Having a Judicial Services Commission comprised of such Judges is the best available method of ensuring the independence of the Judges of the High Court and the Minor Judiciary. Any devaluing of the Judicial Services Commission would, therefore, be to strike at the very root of the independence of the judiciary. Yet this is precisely what the Package seeks to do, although not even the most virulent of the Tamil Chauvinists has yet accused our Judiciary of any communal bias to the detriment of the Tamils.
Articles 17 & 18 of the 'Package' envision each Region having a Regional High Court which will exercise the jurisdiction of the present High Court, and a Regional Judicial Services Commission which will be vested with the responsibility and jurisdiction in respect of the appointment, transfer, dismissal and disciplinary control of "judicial officers" within the Region. The term `judicial officer' is defined in Article 170 of the Constitution to include all judges of all Courts including the High Courts.
Thus, in terms of the 'Package', all appointments of High Court Judges to serve in any part of the Country outside Colombo and Kotte will be made not by the President as at present, but by the relevant Regional Judicial Service Commissions. Further, all powers that were earlier vested in the Judicial Services Commission composed of the three Judges on the first three rungs of the Country's judicial ladder in respect of High Court Judges, District Judges, Magistrates, Presidents of Labour Tribunals and Primary Court Judges in all parts of the Country except Colombo and Kotte, will be taken away from it and vested in eight lesser bodies, called Regional Judicial Service Commissions.
Each Regional Judicial Service Commission is to consist of three members selected by the Constitutional Council in consultation with the relevant Chief Minister from among sitting and retired Judges of the Supreme Court, Court of Appeal and High Court. The 'Package' provides that any sitting Judge who accepts appointment to a Regional Judicial Service Commission would have to vacate his judicial office. Thus, it is unthinkable that any sitting Judge of the Supreme Court or Court of Appeal would ever accept such appointment. It is also unlikely that any sitting Judge of the High Court would accept such appointment unless he is so advanced in years and so low in seniority that he has no reasonable prospect of being appointed to the Court of Appeal or Supreme Court. The Regional Judicial Service Commissions will, therefore, become a source of easy employment at public expense for about twenty four superannuated judges.
The function of being in charge of the appointments, transfers, promotions and disciplinary control of Judges of the High Court, District Judges, Magistrates, Presidents of Labour Tribunal and Primary Court Judges within a Region cannot on any conceivable basis involve sufficient full time work for the proposed Commissioners. The present Judicial Service Commission performs all such functions except the function of appointing, and transferring High Court Judges in addition to their functions as Judges of the Supreme Court. How each Region will require a separate Judicial Service Commission is difficult to understand particularly when the number of Judges in some of the probable Regions have less than ten Judges - e.g. The present North Central Province has one High Court, two District Courts and three Magistrates Courts, while the present Uva Province has one High Court, three District Courts, two Magistrate's Courts, one Labour Tribunal and one Primary Court. How very busy the Regional Judicial Service Commissions for these Provinces will be if the 'Package' is implemented !!
It is on the independence of these Commissions consisting of superannuated judges that the independence of each Regional Judiciary will depend. Could any of the proposed Commissioners be as independent as any of the members of the present Judicial Services Commission consisting of the three foremost Judges of the Land ? Could the People repose in these proposed Regional Commissions the same degree of confidence they repose in the Chief Justice and the two Judges who are next to him in seniority ? The answers to both these questions is clearly NO.
As observed in the preceding chapter, having regard to the political realities of our Country, the likelihood is that such appointments as are made by the Constitutional Council to all proposed 'Regional Commissions' including the Regional Judicial Service Commissions will be politically motivated, and whoever the nominees are of the Chief Minister of the Region comprising the Northern and Eastern Provinces will in all likelihood be appointed to all such Commissions of that Region including the Regional Judicial Service Commission.
The same traditions and constitutional provisions which ensure, as far as can be ensured, the independence of Judges of the Supreme Court and therefore of the present Judicial Service Commission do not exist insofar as retired Judges are concerned . Many a retired Judge has entered politics and been active in that field. Thus, with political favourites of Chief Ministers among retired Judges being appointed to Regional Judicial Service Commissions, the independence of the judiciary will soon become but a fragrant memory of a state of things that used to be.
The standard form response of Government Spokesmen in defence of the provisions of the 'Package' relating to the proposed 'partitioning' of the Judiciary is that the People have nothing to fear because appeals will lie from judgments of the Regional High Courts in the exercise of both their appellate jurisdiction over Magistrates Courts, Primary Courts and Labour Tribunals, its writ jurisdiction and original criminal jurisdiction, as well as from judgements of District Courts, to the Court of Appeal and thence to the Supreme Court. However, it is the judges of the original courts who both see and hear witnesses and the appellate courts are loath to interfere with findings of fact arrived by the original courts except in the most compelling of circumstances. Besides, the appellate courts act entirely on the basis of the record of the proceedings of the original court. No party to an appeal is permitted to contest the accuracy of that record because it is presumed that that record is true and accurate. The work an an appellate court would truly become virtually impossible if parties were permitted to contest the accuracy of such records.
All this is fine and acceptable so long as the original courts are independent and the integrity of the judges beyond question -but will it be so acceptable if the Regional Judical Service Commissions which both appoint and are in charge of the promotions, transfers and disciplinary control of such Judges is itself not independent but polluted with political influence? Corruption is the inseparable companion of political influence in any field.
It is diffuclt to conceive of a judiciary, the appointments, promotions, transfers and disciplinary control of which is vested in a Regional Judicial Service Commission that is a nest of political favourites like the directorates of the discredited public corporations, being independent and impervious to the pressures of political influence in the discharge of their duties. In real life such independence and imperviousness to political pressures could only arise, [barring instances of men with exceptional qualities who are all to rare a phenomenen] if the arbiter of their destines, is itself independent. Thus, the nett result of the creation of Regional Judiciaries functioning under Regional Judicial Service Commissions consisting of political favourites would be a set of stooge Regional Judiciaries in which no person of sound mind could repose confidence - whether in respect of the judgements delivered by them or the accuracy of the records of cases maintained by them. How then could the right of appeal to the Court of Appeal and Supreme Court be a source of confidence ??
Added to the fatal flaw of the elimination of the independence of the judiciary are the overwhelming Administrativeproblems inherent in the proposed system that will bring the judicial system of the Country to a grinding halt.
Today, every Judge, whether he is a Supreme Court Judge or a Primary Court Judge is a member of the Judiciary of the entire Country. The jurisdiction of a judge of an original court as regards the disputes in respect of which he may adjudicate is limited by territorial boundaries, but given that limitation, his jurisdiction to do all things that are necessary to effectively adjudicate upon such disputes and execute his judgement extends to every nook and corner of the Country. Thus, the Primary Court Judge of Kayts in the North may issue summons on a witness resident in Angunukolapelessa in the South; the Magistrate of Kalmunai in the East may issue a warrant for the arrest of an accused resident in Anamaduwa in the Northwest; and the District Judge of Nuwara Eliya in the Central Province may order the seizure and sale of the property of a resident in Colombo which is situated at Bulutota in the Sabaragamuwa Province in execution of a judgement.
This entire system would change if the 'Package' is implemented. Clearly, no judge appointed by a Regional Judicial Services Commission of one Region could have any jurisdiction in respect of any other Region even to the extent of issuing a summons or warrant or levying execution, in much the same way as any judge in Madras could not exercise any jurisdiction whatsoever in respect of any person resident in Jaffna. How can the judicial system of this Country function if a judge sitting in one part of it is precluded by the 'devolution of power' from summoning a witness, or causing the arrest of an accused resident in any other Region or executing his judgement in respect of the property of a litigant before him that is situated in another Region ?
The most comical part of this entire exercise lies in the fact that all these proposals are supposed to have been formulated with good intentions. However, it is difficult to conceive of a scenario in which a person motivated by the most malicious of intentions to subvert the entire judicial process of this Country could have done better to achieve his objectives than by devising a scheme such as this.