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Editorial President Rule of Law and Independence of Judiciary Ranga Dissanayake “Rule of Law” Means the Supremacy of Law

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Editorial President Rule of Law and Independence of Judiciary Ranga Dissanayake “Rule of Law” Means the Supremacy of Law JSA News Letter 2018 Volume 01 Exco 2018 Editorial President Rule of law and independence of judiciary Ranga Dissanayake “Rule of law” means the supremacy of law. Administration is run strictly in accordance with the law. A. V. Dicey in his book; 'Introduction to the study of Law of the constitution' Addl. Magistrate, Colombo describes basic principles which constitute the doctrine. There is no room for exercising arbitrary powers by any authority. All are under the same law and none is over and above the Vice Presidents law. No man or institution is empowered to award punishment to any individual; arbitrarily. All are subject to the same law irrespective of their rank or status and no discrimination is Srinithy Nandasekaran made for the purpose of administering justice. All are equal before law and all are tried in District Judge, Vavuniya the same courts. “Rule of Law” expects the law to be applied equally to all and that the law is certain. Scholars identified certain principles that should be included in the “rule of law” Hasitha Ponnamperuma concept. 1. Independence of the Judiciary District Judge, Kegalle 2. Courts and tribunal processes should be fair. (Right to fair trial) 3. The law must be accessible, clear & predictable. Secretary 4. Ministers must act within their powers and not exceed their limits. 5. The law should be supreme and above all, apply equally to all, except where M. M. M. Mihal objective differences justify differentiation. Magistrate, Mount Lavinia 6. The law should provide access to justice, especially where people cannot resolve inter-personal disputes themselves. Assistant Secretary 7. The law must afford adequate protection of fundamental human rights. 8. Questions of legal rights should be resolved by the law and not by exercising Prasanna Alwis discretion. 9. Separation of powers amongst legislature, executive and the Judiciary (Check Magistrate, Kaduwela and balance system among three pillars of government) 10. The state should comply with international laws. Treasurer Independence of the Judiciary is considered as the backbone of the rule of law. Hence; Nirosha Fernando Judges have to play a major role. Application of the prevailing law to the given situation is one of the main responsibilities of a judge. However; it should be done cautiously and without District Judge, Negombo discrimination as to the race, gender, wealth or due to any personal influences. As per the Art. 111(c) of the Constitution; interference with judiciary is an offence. Constitution guarantees Editor the judicial functions to be carried out without fear, favor or affection. It is clear that the independence of the judiciary itself is guaranteed by the constitution of the Sri Lanka which Jayaruwan Dissanayake is considered as the supreme law of the country. Magistrate, Horana Average person on the street may not understand the relationship of the independence of the judiciary and the rule of law. They only expect justice to be dispensed when they are Assistant Editor before the court of law. Once citizens lose the confidence in the fairness of the legal system; they may turn to other illegal means to resolve their disputes which may even lead to violence. Rakitha Abeysinghe This was highly considered prior to the establishment of International Criminal Court (ICC). First special rapporteur on the independence of judges and lawyers was appointed by Addl.District Judge, Chilaw UN in 1994 and since then it was considered many instances where rule of law is neglected when independence is infringed. Web Master Whole society is staring at the judiciary and the judicial functions. Media publicity Mr. Anushka Senevirathna always changes the mindset of the general public. Criticisms and attacks to tarnish the judicial independence must be promptly addressed and dealt with. Collective effort of judges Addl. Magistrate, Nugegoda and lawyers is needed to uphold this great principle of “Rule of law” to the maximum, by safeguarding the independence of the Judiciary. 1 JSA News Letter 2018 Volume 01 Secretary ‘s Report 2018 - First Quarter In the first quarter of the year 2018, Judicial Service Association has taken following actions for the benefit of the general membership. Among the said initiatives, in most instances we were able to achieve successful results. 1. Separate Salary Structure for Judiciary The struggle to establish a separate salary structure for the Judiciary was successfully concluded in 2018 January. Following a cabinet decision, Ministry of Justice has issued the Circular No.02/2018 dated 19.01.2018 with the concurrence of the treasury with regard to the allowances of the judicial officers. The Ministry of Finance and Mass Media has issued a separate Management Services Circular No.01 /2018 on 19.02.2018 and thereby a separate salary structure for the judicial officers established. 2. Appointment of High Court Judges from unofficial Bar. Judicial Service Association has learnt in February 2018, that the Bar Association of Sri Lanka has sent a list of nominees to Judicial Service Commission for its recommendation to appoint as High Court Judges, from unofficial Bar. On receiving the said information Judicial Service Association has requested the Judicial Service Commission by latter dated 19.02.2018, to refrain from recommending any nominations from unofficial bar for appointment as High Court Judges. Since the power to appoint High Court Judges is vested with the His Excellency the President, Executive Committee of the Judicial Service Association has decided to send a request letter to His Excellency the President, signed by all the Judicial officers stationed around the country requesting not to appoint any member from unofficial Bar as high court judge directly. On receiving the said letter signed by judicial officers, the Secretary to His Excellency the President by his letter dated 06.04.2018, has informed that the special attention of His Excellency the President has been drawn to the said request by Judicial Service Association. 3. Appointment of High Court Judges from official Bar. In January 2018, Judicial Service Association has received a reliable information that the relatively junior officers from attorney Generals’ Department are to be nominated by honorable Attorney General to be appoint as the High Court judges. Judicial Service Association by letter dated 18.01.2018 has requested the Judicial Service Commission to formulate a minimum eligible criterion for ascension of law officers from Attorney Generals’ to the High Court. 4. Grade 1 School Admission – 2018. In year 2017, the requests to admit the children of the judicial officers to Grade 1 of the National Schools were not fully acceded by Ministry of Education. But for this year Ministry of Education has acceded to all the requests and Secretary to the Ministry of Education has issued letters to admit the children of judges to Grade 1 as requested by judges. Judicial Service Association by letter dated 27.11.2017, has requested the Judicial Service Commission to take steps to establish a separate system for judges in admitting their children to schools by explaining the difficulties facing by judges under existing system. The Secretary to the Judicial Service Commission has informed the Judicial Service Association that the said request was forwarded to Secretary to His Excellency the President and the Secretary to the Ministry of Education for necessary action. 5. Special Loan facility through Peoples’ Bank and Bank of Ceylon. Judicial Service association has negotiated with the Peoples’ Bank and Bank of Ceylon to obtain a special loan facility on concessionary terms for its members. As the result of the said negotiation both Banks have introduced a special loan facility on concessionary terms, which is comparatively less than prevailing market rates. M.M.M.Mihal, Secretary, Judicial Service Association. 2 JSA News Letter 2018 Volume 01 Appointment of High Court Judges from the Unofficial Bar - from Secretary's reports 19.02.2018 Through: Hon. H. S. Somaratne, The Secretary, Judicial Service Commission, Colombo 12 To: His Lordship the Chief Justice and Honorable Members of the Judicial Service Commission. Appointment of High Court Judges from the Unofficial Bar Judicial Service Association has reliably learnt that the Bar Association of Sri Lanka (BASL) has sent a list of nominees to the Judicial Service Commission (JSC) for its recommendation to appoint as High Court Judges from unofficial Bar. The BASL has already communicated to its members that, the Executive Committee of the BASL has decided on 9th December 2017 to forward suggestions to the JSC, for appointments as High Court Judges from the members of the Unofficial Bar, who are in active practice over 20 years. JSA has also learnt through reliable sources that while the said procedure is under way, the Secretary to the BASL has forwarded a list of nominees from Unofficial Bar, without forwarding the same to the Executive Committee of the BASL, which is the decision-making body of the BASL, nor to the Bar Council. Hence, the BASL has failed to adopt neither a transparent nor legally valid procedure in nominating the lawyers to Your Lordships. This fact has beensubstantiated by several Executive Committee members of the BASL and, up to now some Executive Committee members were not informed about the short-listed nominations. Furthermore, majority of the members of the unofficial Bar has opposed the said move to nominate lawyers to High Court directly and, they have raised concerns about the negative impact which would cause to the system by adopting a non-transparent procedure in nominating members from unofficial Bar. The consensus of the whole minor judiciary on this issue has been expressed by the following JSA resolution, adopted unanimously at the Emergency General Meeting held on 1st April 2017, which was respectfully submitted to the JSC for its kind consideration. “Appointment of Judges to the High Court from unofficial Bar undermines the knowledge, experience and sacrifices made by the District Judges and Magistrates who work under immense pressures and difficulties for long periods of time in difficult areas during their career.
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