Are We Heading In The Right Direction?

| by Upul Jayasuriya
Your Lordship Justice Sisira De Abrew is a product of Dharmashoka College, Ambalagoda!
"#ay $%, $%&', Colombo, Sri Laka (uardia) Your Lordship e*celled at Law College ad
obtaied classes at the +relimiary ad the ,ial e*ams! -hereafter you took oaths as a
Attorey at Law i &./& ad 0oied the Attorey (eeral1s Departmet as a State Cousel i
&./$! You were promoted to the rak of Seior State Cousel i &..2! Durig this period you
coducted prosecutios before courts i almost e3ery pro3ice! You ha3e also prosecuted
umerous 0ury ad o Jury trials! 4hilst at the Departmet you were e*tesi3ely e*posed to
both Ci3il ad Crimial fields i the origial Courts ad i appellate Courts! 5 additio you
had the pri3ilege of super3isig such matters as a Seior State Cousel ad hadled matters of
comple*ity, as well as opiios regardig the costitutioality of 6ills!
You were a member of the team which represeted the Sri Laka (o3ermet i bi7lateral
talks with the 6ritish (o3ermet o matters relatig to a3iatio i &..8 i Lodo!
Lea3ig your career as a Seior State Cousel you bega your Judicial Career as a Judge of the
9igh Court i &../, early &2 years ago!
You ser3ed as a 9igh Court Judge i Ampara, Auradhapura, :ady ad Colombo! As a Judge
of the 9igh Court you ha3e had e*periece i hearig ad determiig Crimial -rials, appeals
ad re3isios from the #agistrate1s Courts, re3isios from the +rimary Courts, as well as L-
appeals ad writ applicatios!
Judge of the Court of Appeal
You were appoited a Judge of the Court of Appeal i Jauary $%%; ad ser3ed i the Court of
Appeal for early a decade! Durig this period you heard ad determied re3isios, appeals,
writ applicatios, embracig the etirety of the ci3il ad crimial law ad was presidig o3er
the Crimial Di3isio of the Court of Appeal ad the 4rit Court! Your Lordship was appoited
+residet of the Court of Appeal i ,ebruary $%&'!
4hilst you ser3ed as a 0udge of the Court of Appeal you ha3e had the beefit of e*posure to
may a 5teratioal 5stitutes!
< i &..= i U>A,?5 i -okyo,
< i Jauary $%%' through 5#, i Sigapore@
< i $%%' at the City Ui3ersity of 9og :og ad i the Ui3ersity of Cape -ow, South
Africa@
< i $%%8 o the Legal +rocedure adopted by the Costitutioal Court of South Africa, i
Johaesburg@
< i August $%%/ o -he Aole of the Judiciary ad +romotio of ?Bual Justice at the ,aculty of
Law Ui3ersity of Cape -ow i South Africa@
< i $%%/ o -rasformatioal Costitutioalism at the Ui3ersity of Stellebosch, South
Africa@
< i July $%%. o 5teratioal -elecommuicatio Law,ad Cyber Crimes held at the
5teratioal -elecommuicatio Uio i (ee3a@
< i July $%%. o 5teratioal Arbitratio +rocedure held at 45+C Arbitratio ad #ediatio
Cetre i (ee3a,
< i August $%%., at the Ui3ersity of Dueeslad i Australia i the fields of 5formatio
-echology Law@
< i September $%&%, at the Commowealth #agistrates ad Judges Associatio EC#JAF
coferece held at the 6righto Ui3ersity, ?glad o GCommuity Justice@
< i July $%&&, C#JA Coferece i :uala Lumpur, #alaysia@
< i $%&$ at the Ui3ersity of 4iscosi Law School i USA o ?hacig Access to Justice@
< i#arch $%&= o (lobal Couterterrorism Cooperatio i :athmadu, >epal@
< 5 September $%&= i Jersey Commowealth #agistrates ad Judges Associatio coferece,
o G5s Your Latimer 9ouse i CrderHI
Your Lordship Justice Sisira De Abrew, 5 am happy to say that your Latimer 9ouse is i orderJ
5 your case the guidelies that are eumerated i the Latimer 9ouse +riciples with regards to
the appoitmet of Judges to the Ape* Court ha3e bee complied to the last letter!
5t is with eormous wealth of kowledge you ha3e asceded the Supreme Court which is your
rightful place! You ha3e eared this distiguished seat with character possessig o3er three
decades of sacrifice ad dedicated life as a member of the Attorey (eeral1s Departmet ad
thereafter as a Judicial officer!
You ha3e dedicated your etire professioal life from its cradle, straddlig o3er =$ years to the
+ublic ad Judicial ser3ice! -he 6ar is aware of your accomplishmets ad uimpeachable
coduct as a Judge! You ha3e shut the doors to those acBuaitaces ad associates who seek
etry to ifluece you to imbalace the scales of Justice that you always held close to your
heart e3e at the risk of beig depri3ed of your due promotios ad persoal loss!
-he 6ar admires you ad is proud to 4elcome you as a 0udge of the Supreme Court!
Your Lordship Justice Sarath De Abrew
Your Lordship Sarath De Abrew had your primary educatio uder the motto of G?sto per
+etuaI at St1 -homas1s College #t! La3iia! 4hilst at school you e*celled i Sihala, ?glish
ad Lati! You Joied the Legal +rofessio =8 years ago ad had a short stit at the Attorey
(eeral Departmet!
-hereafter you 0oied the Judicial Ser3ice as a #agistrate at the age of $/ years ad ser3ed for
&' years i the treches of the legal battlefields! You ser3ed as a #agistrate i -ricomale,
+aadura, -agalle, (alle ad i #t! La3iia!
Your Judgmet i the famous Abesudera Case that was fially upheld i the Supreme Court,
has created Legal 9istory o polygamy! -hereafter you wet through the Judicial career as a
District Judge the a 9igh Court Judge! As a District Judge ad a 9igh Court Judge you ha3e
ser3ed i #oratuwa, :ady, Ampara, 9ambatota, :alutara ad Colombo ad asceded the
Court of Appeal i $%%2! +aistakigly you ha3e writte legal essays i Judgmets burig the
mid ight oil! 5 all your life you ha3e sacrificed lu*uries1 that are ot affordable to a public
ser3at!
Your e*periece as a 0udge 0ustifies your appoitmet to the Supreme Court i keepig with the
Latimer 9ouse +riciples!
-oday you ha3e reached the Keith of your professioal life ha3ig labored =$ years as a 0udge!
Your appoitmet is a sil3er ray of hope to the career Judges whose aspiratios of promotios
ha3e bee dashed to the groud i recet times! You ha3e held the scales of Justice e3ely with
either fear or fa3our as oe e*pects from a Judicial Cfficer!
4e 4elcome you 4armly to the Ape* Court of our 5slad >atio!
Your Lordship Justice +riyatha Jayawardea,
Your Lordship had your early educatio at >alada Lidyalaya ad Joied the legal +rofessio
i &./8!
You obtaied a #asters Degree i &..$ from the Ui3ersity of Aberdee! 4hilst at Aberdee
you ha3e gi3e legal ad3ice to the +ublic! You ha3e erolled yourself as a Solicitor i the
Uited :igdom i &..= ad i &...,Your Lordhsip followed a short course at the >atioal
Ui3ersity of Sigapore! You ha3e ser3ed the Attorey (eeral1s Departmet for early 8
years!
4hilst at the Attorey (eeral1s Departmet you ha3e also assisted the #iistries of -rade ad
Commerce ad ,oreig Affairs! You ha3e bee a tutor ad a e*amier at Sri Laka Law
College from &..8 7&...!
Sice $%%% you ha3e bee at the pri3ate 6ar! You ha3e bee a 3isitig Lecture at the Ui3ersity
of #oratuwa! You ha3e bee a cosultat to Sri Laka 5surace ad se3eral go3ermet
istitutes! You ha3e also bee appoited a #ember o se3eral (o3ermet statutory boards!
5t is with this e3iromet, that your Lordship has bee appoited to the Supreme Court from
the +ri3ate 6ar!
5f we lose our struggle for Judicial 5depedece ad professioal itegrity, if we caot
defed our right to practice our professio with digity whilst esurig the safety of the
Judiciary o the basis of the highest priciples o which the legal professio is fouded, the
e3ery perso who seeks 0ustice will be at risk! -hese 3alues are precious ad priceless! Are we
headig i the right directioH
As we all kow the &8th amedmet was to put this coutry i that right directio! 5 a rare
uaimous 3ote +arliamet set the record straight ad appoited a costitutioal coucil to
select ad recommed appoitmets to the e*ecuti3e to fill the 3acacies to the Ape* Courts!
-ragically the &/th amedmet re3ersed this tred! -he ?*ecuti3e usurped the powers of the
costitutioal Coucil to make these appoitmets oce agai frustratig the log established
traditios of the legal professio, 0udicial system ad the hopes of a >atio!
-he Costitutioal pro3isios i 5dia 3iK7a73iK the appoitmet of Judges to the Ape* Court is
the same! 9owe3er the Supreme Court of 5dia has by Judicial 5terpretatio propouded that
the ?*ecuti3e +rerogati3e is ot ufettered! Such appoitmets are made oly o the
recommedatios of the Supreme Court! 5 USA too the +residet has the power to appoit
Judges to the Supreme Court!
6ut those omiees ha3e to go before the sub Committee of the Seate ad sub0ected to public
scrutiy! -he appoitmet of Judge Clarece -homas is a good e*ample!
-he appoitig process of the Judges was challeged i Sri Laka i the case of ?dward Sil3a
Ls! Shiraee 6adaraayake where it was held that the Gbest practice of appoitmet to the
Ape* Court is i a cosultatio with the Chief Justice, the Attorey (eeral ad the #iister of
Justice!I
5f the ?*ecuti3e persists i actig i breach of these salutary priciples it would be a
i3itatio, persuasio or per3ersio to the mid of the Judges to cast aside their Judicial
5depedece ad succumb to the i3idious pressures of the ?*ecuti3e! 5s that what is i the
mid of the ?*ecuti3eH -o break the back boe of Judicial 5depedeceH
5t was 0ust a few moths ago i this same August assembly that 5 wished a speedy reco3ery to
9is Lordship the +residet of the Court of Appeal Justice Sri Skadara0a@ A great 0udge of our
time! 9is life was cruelly satched away from our midst M a broke hearted ma at the time of
his death!
4e shall keel before the altar of Almighty Justice, G,ather, forgi3e them, they kow ot what
they do! -heir ill ad will has o bouds or cofies!I -his 3oice must surely speak, to ci3il
society! -he depri3atio of his due place for that humble simple ma who sat behid the bech,
was othig but a tra3esty of Justice! Are we to blame the GsystemI ad pass the buckH >o J
-he buck stops here!
-he blame ca ot be attributed oly to the ?*ecuti3e! -he persos who do ot fall withi the
time tested ad respected criteria, crige ad scrouge braKely at the feet of the ?*ecuti3e
seekig such appoitmet whose lame e*cuse thereafter is that the ?*ecuti3e i3itatio ca ot
be tured dow@ are eBually guilty of the trasgressio agaist the society! 4e the Legal
+rofessio ad the ci3il Society ad those of us etrusted with that public trust, are also to
blame for it!
5f the ?*ecuti3e e*ercises a prerogati3e that it e3er possessed, the legal professio ad the
Judiciary would both ha3e to plead mea culpaJ #ea #a*ima CulpaJ
+ermit me to Buote ?dmud 6urke a 5rish +hilospher, i the &8th Cetury@
G-he oly thig ecessary for the triumph of e3il is for good me to do othigI
-he 6ar ca ot edorse ay 3iew cotrary to these time hooured priciples that are beig
flagratly 3iolated i recet times! -he 6ar caot ad shall ot codoe such sullied attempts
to desecrate the -emple of Justice, detrimetal to the hope ad e*pectatios of ot oly the
Judiciary ot oly the official ad the u 7official 6ar but the coutry at large! ?*ercise of such
arbitrary powers ad practices shall be opposed at ay cost ad cotiue to be opposed at ay
price util saity pre3ails!
6e it the Career Judiciary@ be it the Attorey (eeral1s Departmet, be it the pri3ate 6ar, if
merit, seiority ad emiece is to be igored at the alter of political patroage i makig
appoitmets to the Ape* Court we might bid farewell to the idepedece of the Judiciary, the
Aule of Law, the Law books ad Judicial +recedets!
leared ladies ad getleme of the legal professio, the day is ot too far whe the ordiary
people of this coutry seek their ow meas of social Justice or summary Justice, perhaps
ufortuately the day has already dawed! 9a3e we o eyes to see or ears to hear or togue
to speak about the break dow of the rule of Law o the streets todayH
5 am further remided of 6urkes prophetic words, Gdager of +eople crushed by law, ha3e o
hope for what is right but for might! 5f laws are their eemies, they will be eemies to laws@ ad
those who ha3e much to hope ad othig to lose, will always be dagerousI
-he lad like o other, the miracle of AsiaJ 4e ha3e to ask the Buestio oursel3es as to where
are we o the right pathH -he people i Sri Laka belie3e that a well7iformed public, Aule of
Law ad a 3ibrat Judiciary to be the core of our democracy!
Cur forefathers fought the coloial rulers ad wo the democratic rights for our people! 4e
iherited ot oly the frachise but a upright Ci3il Ser3ice protected from politicias, a
efficiet foreig ser3ice! A ushackled +olice Ser3ice, a fuctioal educatio system, ad
idepedet Judiciary!
4hat are we ow left withH
5t is our call today! Let us at least sa3e the Judiciary from this moocracy ad sa3e the last
e*istig pillar of democracy!
4e shall ot allow to egulf the bulwarks that we built ad treasured sice idepedece!
5depedet statutory bodies that were i place to pro3ide protectio ad fortificatio ha3e
bee muted ad mummified o3er the years! Law eforcemet authorities ha3e falle prey to the
fearful i3asios! -he maer i which the 6ar has bee compelled to tolerate should by o
meas be iterpreted as its weakess or meekess !
-he citiKe1s respect for law, ?steem for the courts ad for the 0udges who preside o3er them is
the 3ery essece of the 5depedece of the Judiciary! Cofidece i these istitutios ad i
the me who admiister them is Gsie Buo oI, if this respect is to be maitaied!
-his essetial co7relatioship betwee Gpublic respectI ad the Grule of lawI eeds to be
recogiKed to maitai the digity ad respect of Courts!
Arthur -! Laderbilt "July 8, &/// M Jue &2, &.;8) Chief Justice of the >ew Jersey Supreme
Court from &.'/ to &.;8, stated that I 5t is imperati3e that 0udges7beholde to o ma,
idepedet ad hoest, ad7 eBually importat, belie3ed by all me to be idepedet ad
hoest to the cause ,I
5f we do ot ha3e i place, procedures that are free from the ?*ecuti3e melacholy with the
cofidece that globally accepted priciples, are obser3ed i our Coutry too the resultat
Justice would be colored ad mutilated!
5f merit, seiority ad emiece is to be igored with Judicial appoitmets beig made o the
basis of collateral ageda our hope for the miracle of Asia would be a distat daw! Due
cosideratio should be gi3e to career Judicial Cfficers who ha3e worked hard to admiister
0ustice o3er their etire careers ad i suitable istaces best e3er ad first rated appoitmets
should be made from the Attorey (eeral1s Departmet! 5f these salutary rules are breached,
the outcome ad its impact o the rule of law would be de3astatig!
#ay 5 repeatH -here should be a set of trasparet criteria ad a due process for the
appoitmet ad promotio of Appellate Judges which is ot 3ested solely i the hads of oe
appoitig authority! 5f this is ot implemeted, +ublic cofidece i the idepedece ad
impartiality of the 0udiciary would the be irreparably impaired! +ermit me to Buote Sir
4isto Churchill, from what he obser3edN
O-he priciple of complete idepedece of the 0udiciary from the e*ecuti3e is the foudatio
of may thigs i our islad lifeP ! -he 0udge has ot oly to do 0ustice betwee ma ad ma!
9e also has to do 0ustice betwee the citiKes ad the State! O
+ermit me to coclude my address with also a Buotatio from the words of wisdom of lord
6uddha from the adhammika Suthra of the Agutthara >ikaya@
O ?3a me3a mausessu, yohothi setta sammatho
So Che adhammag charathi, pagewa ithara pa0a
Sabbag rattag dukkag sethi, ra0a wehotha dhammakoI
So too, amog huma beigs,
4he the oe cosidered the :ig
6eha3es u righteously,
Cther people do so as well!
-he etire kigdom is de0ected
5f the kig is urighteous!I
-hak you
" -he speech deli3ered by the writer as the +residet 6ar Associatio of Sri Laka )