Feb 06


President Chandrika Kumaratunga perversely and irresponsibly made a mockery of the 17th Amendment by delaying or failing to appoint some of the Independent Commissions covered by this Amendment.  Plainly, she is seen to have relied on the fact that a maximum time period was not specified in the said Amendment for issuing Presidential appointment letters once the decision of the Constitutional Council was conveyed to the President.  We cannot but deplore intensely the fact that she betrayed the spirit, if not the letter, of the Constitution in not carrying out with due expedition her mandatory duty in this regard.

The current President, the Prime Minister, the Speaker and the Leader of the Opposition have also defaulted egregiously by not fulfilling their obligatory duty to appoint the Constitutional Council promptly and the Independent Commissions as quickly as possible thereafter.  Under severe pressure conveyed through the media, these four lofty personae have recently woken up from their slumbers, only to find that the JVP is trying Ato run with the hare and hunt with the hounds.  The JVP, having come into Parliament on a joint ticket with the coalition of parties which are presently in government, and being very forceful in determining government policies, is trying to get an additional, unjustified benefit by claiming to be an opposition party with the right to decide on who should be the sixth member of the Constitutional Council to be jointly recommended by the Prime Minister and the Leader of the Opposition.

CIMOGG calls upon all these factions to give up their questionable politicking and get on with their constitutional and statutory duties without further procrastination.

To add to the woes of poor Sri Lanka’s citizens, we learn, from newspaper reports, that two of the more senior judges of the Supreme Court have resigned, apparently on the grounds of conscience, from the Judicial Services Commission.  As averagely intelligent persons, we take this to mean that they do not wish to be pressurised to be parties to wrongful, unjust or improper decisions and orders. Considering that they were appointed by the President, presumably at his sole discretion on the recommendation of the Chief Justice, one is left wondering what were the pressures which were applied on them, to do what act or acts that were in conflict with their conscience.  Subsequently, it has been reported in the media that these ethically objecting judges have been replaced by two others.  How the new members of the JSC will react to whatever pressures are applied on them remains to be seen.

CIMOGG, recognising that it is the Executive which is controlling the Judiciary directly, with no autonomous safeguards to ensure judicial independence, proposed some weeks ago through the media, that the Bar Association of Sri Lanka (BASL) should help upgrade the quality and independence of the JSC.  We asked BASL to take the initiative to press Parliament to create new legislation to make the JSC, say, a seven-member body of which only three would be judicial officers and the other four distinguished legal academics and/or public figures of high integrity.  In the light of recent developments, the above recommendation made by CIMOGG, to widen the membership of the JSC, was clearly most timely and it is our view that it is the bounden duty of the BASL to press the government to act urgently on it.

CIMOGG appealed through the press in September 2005 calling upon Parliament to enact legislation containing a Code of Conduct for all judicial officers and recommended that the said Code should be based on THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT.  As a result of certain incidents and facts considered independently by the BASL, its Council subsequently decided to appoint a high-powered committee to draft a Code of Conduct for Judges.  In the interests of getting the Code of Conduct as rapidly as possible into the law of the country, CIMOGG suggested, in its letter of 2 November 2005 addressed to the BASL, that it (the BASL) should call upon its three-member committee to recommend adoption of THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT in toto as the basis of the proposed Code of Conduct, making only those additions or modifications which may be unavoidable to meet the Sri Lankan situation.  Quite apart from the saving of time, adopting this approach would keep us closely in line with international standards in this area of good governance.  In the light of the problems faced by the two judges who resigned from the JSC, the need for such a Code is seen to have become critically urgent.