Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
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Though the drafters <strong>of</strong> second Republican Constitution <strong>of</strong> 1978 pr<strong>of</strong>essed to right the<br />
wrongs <strong>of</strong> the past where the independence <strong>of</strong> the judiciary was concerned, this<br />
promise was only theoretical, and the opposite result ensued. The 1978 Constitution<br />
established the Supreme Court as the highest and final superior court with special<br />
jurisdiction in respect <strong>of</strong>, inter alia, election petitions, appeals, constitutional matters,<br />
fundamental rights and breach <strong>of</strong> the privileges <strong>of</strong> Parliament. 75 The appointment <strong>of</strong><br />
judges <strong>of</strong> the superior courts was by an elected President “by warrant under his<br />
hand”. 76 The security and tenure <strong>of</strong> the judges were guaranteed and judges <strong>of</strong> the<br />
superior courts held <strong>of</strong>fice during good behaviour and could be removed only by a<br />
majority <strong>of</strong> the total numbers <strong>of</strong> Members <strong>of</strong> Parliament. The address for removal<br />
should be on grounds <strong>of</strong> proved misbehaviour or incapacity, with the full particulars<br />
<strong>of</strong> such allegations set out. 77 The JSAB and the JSDB were replaced by a Judicial<br />
Service <strong>Commission</strong> vested with the same powers. The JSC was to consist <strong>of</strong> the<br />
Chief Justice and two other judges <strong>of</strong> the Supreme Court, named by the President,<br />
who could be removed only for cause assigned. 78<br />
These changes notwithstanding, the subordination <strong>of</strong> the judiciary deepened. The<br />
appellate courts were reconstituted by President Jayawardene using a constitutional<br />
clause that specified that all judges <strong>of</strong> the appellate courts shall, on the<br />
commencement <strong>of</strong> the new Constitution, cease to hold <strong>of</strong>fice. 79 Three months after the<br />
promulgation <strong>of</strong> the 1978 Constitution, the government-dominated legislature<br />
reversed through constitutional amendment the Court <strong>of</strong> Appeal’s decision against<br />
vesting retrospective power to a Special Presidential <strong>Commission</strong> <strong>of</strong> Inquiry<br />
appointed to look into the actions <strong>of</strong> former Premier Sirimavo Bandaranaike. The shift<br />
in the status <strong>of</strong> the judiciary was evident in public abuse and <strong>of</strong>ficial statements.<br />
“Procedural difficulties in judicial <strong>of</strong>ficers taking the oath <strong>of</strong> allegiance under<br />
the Sixth Amendment resulted in the police locking and barring the Supreme<br />
Court and the Court <strong>of</strong> Appeal and refusing entry to judges who reported for<br />
work. Following unpopular decisions, judges’ houses were stoned and vulgar<br />
abuse was shouted at them by thugs.” 80<br />
At every stage thereafter, the judiciary was intimidated by executive authority. One<br />
such illustration was the attempted impeachment <strong>of</strong> then Chief Justice Neville<br />
Samarakoon allegedly due to criticism <strong>of</strong> the government by him during the course <strong>of</strong><br />
a speech at a school prize-giving day. The findings <strong>of</strong> a Select Committee appointed<br />
to investigate his conduct decided that there was no proven misbehaviour that could<br />
justify the Chief Justice’s removal.<br />
75 Article 118.<br />
76 Article 107.<br />
77 Article 107 (2).<br />
78 Article 112.<br />
79 Seven out <strong>of</strong> the nineteen judges holding <strong>of</strong>fice were not re-appointed in what was widely interpreted<br />
as a warning to those judges who weere spared this humiliation.<br />
80 The Daily News, 05.02.1981, cited in Pinto-Jayawardena, Kishali ‘Protecting the Independence <strong>of</strong> the<br />
Judiciary: A Critical Analysis <strong>of</strong> the Sri Lankan Law’ State <strong>of</strong> Human Rights Report 1999, Law &<br />
Society Trust, 1999, at p. 178. One such decision which attracted executive anger was the seminal<br />
Vivienne Goonewardene’s Case (1983 (2) FRD 426) where the police were reprimanded by the Court<br />
for excessive force in exercising their powers <strong>of</strong> arrest.<br />
37