BASL tells President to go for integrity,

seniority and merit in appointing judges

Sunday, September 21, 2014
The Bar Association of Sri Lanka (BASL) has put forard to !resident "ahinda #a$apaksa a
set of criteria and processes to be fo%%oed hen appointin& 'ud&es to the Ape( )ourts
fo%%oin& a strin& of recent appointments that ha*e o*er%ooked both, merit and seniority+
,i&h%i&htin& the need to estab%ish a forma% process after the 1-th Amendment as repea%ed,
BASL !resident .pu% 'ayasuriya in a %etter to the !resident stated that the matter as of &ra*e
concern to the members of the Bar+
The Bar Association recommends that the se%ection criteria in the appointment of indi*idua%s to
the superior courts shou%d ensure that the person so appointed has an impeccab%e record of
inte&rity and be of unimpeachab%e character+ ,e (or she) must be independent and be percei*ed
to be independent+ Such person shou%d ha*e a pro*en record of bein& a $udicia% officer, member
of the officia% or unofficia% Bar or as a $urist+
The recommended process for such appointments has a%so been %isted in BASL !resident
'ayasuriya/s %etter to !resident #a$apaksa+ Amon& the matters out%ined are0
i) 1hen appointin& such superior court $ud&es, the !resident must consu%t the )hief 'ustice, the
Attorney 2enera%, the Leader of the 3pposition and the !resident of the BASL+
ii) Appointments to the Supreme )ourt shou%d ordinari%y be made in %ine ith the seniority of
the incumbent 'ud&es of the )ourt of Appea% commencin& ith the !resident of that )ourt
un%ess there is manifest%y &ood reason not to do so+
iii) Appointments from the officia% Bar must be based on a seniority basis and the unofficia% Bar
based on those ith a practice of o*er 40 years+
i*) Appointments to the )ourt of Appea% must be from the ,i&h )ourt based ordinari%y on
seniority, from the officia% Bar a%so based on seniority in the A2/s 5epartment and from the
unofficia% Bar from those ith a minimum of a 267year practice+
The %etter ur&es the !resident to &i*e due consideration to the promotion of career 'ud&es in the
furtherance of &ood &o*ernance, stren&thenin& the #u%e of La and promotin& the
independence of the 'udiciary+
The %etter states that the recommendations are made fo%%oin& consu%tation ith a%% Branch
Associations of the BASL and indi*idua% members after hich a sub committee of the BASL
8(ecuti*e )ommittee headed by 5eputy !resident !rasanna 'ayaardene !)+, studied the
recommendations ith senior !resident/s )ounse% inc%udin& se*era% past !residents of the
BASL+
IBAHRI paper examines the fragility of
judicial independence across the globe today

9n the %atest 9nternationa% Bar Association/s ,uman #i&hts 9nstitute 9nternationa% Bar Association/s
,uman #i&hts 9nstitute (9BA,#9) thematic paper, pub%ished today, 2eoffrey #obertson
:) ref%ects on some of the prob%ems facin& the ;fra&i%e reed/ of $udicia% independence
across the &%obe, and ca%%s on $ud&es to speak out hene*er they ha*e reason to be%ie*e
that their independence is under threat+
;Judicial independence is fundamental to democracy and lip-service is paid to it by most
states. However, it is a fragile reed, beset by problems of political appointments, government
favours to compliant judges, prosecution powers over the court and the potential for misuse
of the removal process of impeachment by populist politicians (page 3
Geoffrey Robertson Q
1hi%e the 2<7pa&e paper, 'udicia% 9ndependence= Some #ecent !rob%ems, addresses
some of the most serious threats to $udicia% independence > citin& cases from Bo%i*ia to
?imbabe > the body of the paper e(amines some of the more ;subt%e po%itica%
inf%uences/ on the $udiciary, inc%udin&= difficu%ties of detectin& or dea%in& ith $ud&es
ho are under the inf%uence of, or bendin& to the i%% of, the e(ecuti*e0 confusion
associated ith methods of ;impeachment/ or remo*a% of senior $ud&es0 pressures on
courts to cut costs in times of austerity0 and the %imited remedies a*ai%ab%e, both
domestica%%y and internationa%%y, a&ainst &o*ernments that seek to inf%uence $ud&es
accordin& to their po%itica% i%%+
1ithin this conte(t, "r #obertson :) rites that ;de*otion to the ru%e of %a/ and the
;duty to defy the state/ ca%%s for &reat coura&e= ;#eprisa% can come from a &o*ernment7
incited mob (in ?imbabe, ma&istrates ho ha*e ac@uitted "u&abe critics ha*e had
their houses burned don) or a pub%ic dismissa% from office (in Sri Lanka, the fate of
Shirani Bandaranayake) or, more common%y and sinister%y, secret threats not to rene
$udicia% contracts or to post the $ud&e to an obscure court or simp%y to dismiss or
o*er%ook for promotion those $urists considered by po%iticians in poer to
beAunre%iab%eB/ (pa&e 2C)+ "r #obertson :) adds, ;Those D$ud&esE ho do their dai%y,
often p%oddin&, duty ithout fear or fa*our are the mainstay of democracy, hi%e those
ho do it despite the threat of dan&er to their %i*es are tru%y heroic/ (pa&e 26)+
The thematic paper, the fourth in the 9BA,#9 series, a%so ar&ues the need for
in*esti&ati*e $ourna%ism and the abi%ity to criticise ;bad $ud&es/, in order to fu%%y
safe&uard $udicia% independence+ "r #obertson :) rites, ;There remains a %in&erin&
attraction for $ud&es in 8urope and e%sehere to c%in& to the poer topunish their
critics+ This can be seen, most %amentab%y, in some of the decisions of the 8uropean
)ourt of ,uman #i&hts, hich app%ies a )on*ention that makes Afreedom of
e(pressionB under Artic%e 10 sub$ect to an e(ception for Amaintainin& the authority and
impartia%ity of the $udiciaryB+ 9nstead of confinin& this e(ception to cases here attacks
on $ud&es are intended to put pressure on them to decide a case in a particu%ar ay, some
decisions ha*e uphe%d con*ictions of editors for makin& fair and accurate
condemnations of biased or po%iticised $ud&es/ (pa&e 24)+
9BA,#9 5irector 5r !hi%%ip Tahmind$is A" commented, ;This thematic paper pro*ides
a thou&ht7pro*okin& contribution to discussions surroundin& $udicia% independence+ "r
#obertson :) captures the comp%e( and de%icate nature of some of the prob%ems facin&
the independence of the $udiciary across the &%obe today+/
)%ick here to don%oad 'udicia% 9ndependence= Some #ecent !rob%ems
www.ibanet.org!"rticle!#etail.asp$%"rticle&id'()acea3*-aeee-+,ef-ab-,-(cd(.d-)-(cc
Fotes
1+ 'udicia% 9ndependence= Some #ecent !rob%ems is an updated *ersion of a paper
first pub%ished by the 2riffith 'ourna% of La and ,uman 5i&nity Go%ume 1(1)
"arch 2014, subse@uent to an ear%ier *ersion of the paper presented by the author
at the 2011 9nternationa% Bar Association Annua% )onference session
;9ndependence of the 'udiciary/+
2+ The author, 2eoffrey #obertson :)is the founder and head of 5ou&hty Street
)hambers, London, 8n&%and+ ,e has appeared in many %andmark cases in
constitutiona%, crimina% and media %a, and has ser*ed as first !resident and
appea% $ud&e at the .F 1ar )rimes )ourt in Sierra Leone and as a ;distin&uished
$urist/ member of the .F 9nterna% 'ustice )ounci%+ ,e is a "aster of the "idd%e
Temp%e and the author of The 'ustice 2ame and )rimes A&ainst ,umanity= The
Stru&&%e for 2%oba% 'ustice+ ,e as counse% in #ees * )rane and appeared for
)hief 'ustice Sharma before Lord "usti%%/s commission+ ,e rote the #eport for
the Bar ,uman #i&hts )ommittee on the #emo*a% of the )hief 'ustice of Sri
Lanka+ 9n 2011 he recei*ed the Fe Hork Bar Aard for achie*ement in
internationa% %a and affairs+ ,is %atest book is Stephen 1ard as 9nnocent 3I,
and forthcomin& An 9ncon*enient 2enocide= 1ho Fo #emembers The
Armenians+
The /nternational 0ar "ssociation (9BA), estab%ished in 1J4-, is the or%d/s %eadin&
or&anisation of internationa% %e&a% practitioners, bar associations and %a societies+
Throu&h its &%oba% membership of indi*idua% %ayers, %a firms, bar associations and
%a societies it inf%uences the de*e%opment of internationa% %a reform and shapes the
future of the %e&a% profession throu&hout the or%d+
The 9BA/s administrati*e office is in London+ #e&iona% offices are %ocated in= SKo !au%o,
BraLi%0 Seou%, South Iorea0 and 1ashin&ton 5), .S, hi%e the 9nternationa% Bar
Association/s/nternational 1riminal 1ourt 2rogramme (9BA 9))) is mana&ed from an office
in The ,a&ue+
The 9nternationa% Bar Association/s Human 3ights /nstitute (9BA,#9) orks to promote,
protect and enforce human ri&hts under a $ust ru%e of %a, and to preser*e the
independence of the $udiciary and the %e&a% profession or%dide+