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The Bench must ensure that the judges will continue to be trusted

Comments / {{hitsCtrl.values.hits}} Views / Monday, 12 November 2018 00:00



In the backdrop of the recent developments and the strong arguments that have been presented against the dissolution of Parliament saying the President has no constitutional power to do so, before four and a half years into a Parliamentary term, as stipulated by the 19th Amendment and the Elections Commission planning to seek an opinion from the Supreme Court; we reproduce this article which was published on Wednesday, 13 February 2013, of the Expected Role of the Supreme Court of Sri Lanka, the highest court of the land.


The Supreme Court is the highest court of the land and its decisions are final. It is also uniquely placed with regard to many matters of grave constitutional importance. For instance, it has sole and exclusive jurisdiction with regard to fundamental and language rights and the interpretations of the constitution.

Prof. S.A. de Smith in his article, ‘Fundamental Rights in the New Commonwealth’ (1981) stressed on “the paramount importance of ensuring the integrity and independence of those upon whom the task of constitutional interpretation will fall. Unless the quality and status of the judiciary is commensurate with its responsibilities, the spirit of the constitution will escape into emptiness.”

It is a well-known fact that some persons who were sounded out recently declined to accept a place on the bench because the emoluments and other perquisites were grossly inadequate. If those who are best qualified decline to accept appointment, the quality of the bench will deteriorate. Something ought to be done immediately to put the situation right.

Fees earned in private practice are not the criterion. Nevertheless, salaries and perquisites (e.g., vehicle and housing or housing allowances) must be commensurate with the responsibilities of the highest judicial officers of the country. It is for the Ministry of Justice and Members of Parliament – particularly its lawyer members – to do something on a non-partisan basis about the present highly unsatisfactory and potentially dangerous situation.

Selection process

As for the selection process itself, it goes without saying that it must be exercised with the greatest care. George Washington addressing Chief Justice Jay and the Judges of the Supreme Court of the new United States on 3 April 1790 said: “I have always been persuaded that the stability and success of the national government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretation and execution of its laws. In my opinion, therefore, it is important that the judiciary system should not only be independent in its operations but as perfect as possible in its formation.”

In the USA, the UK and in all commonwealth countries, and indeed in many others outside the commonwealth, the appointment of the Judges of the apex court is placed in the hands of the Head of State (Queen or Governor-General or President) or the Chief Executive (President). Article 30 of the constitution provides that in Sri Lanka, the President is both Head of State and Head of the Executive and of the Government. Article 107 (1) provides that “the chief justice, the president of the court of appeal and every other judge of the supreme court and the court of appeal shall be appointed by the president of the republic by warrant under his hand.”

There is no requirement that the President should consult any person to make an appointment, nor are there any minimum qualifications that make a person eligible for appointment. Indeed, this is generally the case in other countries as well.


However, there are exceptions. Article 124 (2) of the Indian constitution provides that “every judge of the supreme court shall be appointed by the president by warrant under his hand and seal after consultation with such of the judges of the supreme court and of the high courts in the states as the president may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years, provided in the case of appointment of a judge other than the chief justice, the chief justice of India shall always be consulted.” Article 124 (3) provides that “a person shall not be qualified for appointment as a judge of the supreme court unless he is a citizen of India and (a) has been for at least five years a judge of a high court or of two or more such courts in succession; or (b) has been for at least ten years an advocate of a high court or of two or more such courts in succession; or (3) is in the opinion of the president, a distinguished jurist.”

Although consultation is referred to in the Indian constitution with judges of the Supreme Court and judges of the highest state courts, namely the High Courts, the President is not obliged to do so. He is, however, constitutionally obliged to consult the Chief Justice of India before making an appointment of a judge other than the Chief Justice. Although there is an obligation to consult, the President is not bound to follow the advice of the Chief Justice. The President acts on the advice of the Prime Minister.

The Prime Minister, it will be recalled, recommended the appointment of Justice Ray as Chief Justice of India, superseding three senior Judges. The Prime Minister of India decided to recommend the continuation of Justice Lalit as an additional Judge, notwithstanding the recommendations of the Chief Justice of Bombay, the Chief Justice of India and the Law Minister of the Union of India to the contrary.

The case of S.P. Gupta v. Union (known as the Judges’ Case), further highlighted the inadequacy of the Indian provisions. Whether there is express constitutional provision in that regard or otherwise, appointing authorities everywhere always act after consultation with those who are expected to know best of all by reason of their contact with likely candidates, and advice is seldom, if ever, disregarded.

In England, the Law Lords, the Lords Justices of Appeal, the Lord Chief Justice, the Master of the Rolls and the President of the family division are appointed by the Queen upon the advice of the Prime Minister, after consultation with the Lord Chancellor, who himself consults with senior members of the judiciary. The appointment of the superior court judges in England is a matter of practice and convention.

In the United States, the President appoints the Chief Justice and Judges of the Supreme Court, but this is done after extensive consultation with the Judges, Attorney General and others. The appointment is subject to the approval of the Senate, which through a Sub-Committee enquires into the suitability of the Judge. Not all presidential nominees have survived the scrutiny of the Senate.

Shimon Shetreet in his book ‘Judges on Trial’, citing G. Gardiner who later became Lord Chancellor, states: “The quality of the judges in any system largely depends upon the method of their appointment and the standards applied by the appointing authorities in the process of the selection of judges. The methods of appointment have direct bearing on both the integrity and independence of judges.” H.M. Seervai in his work on the Constitutional Law of India states: “Such evidence as there is shows that the security for the appointment of good judges lies not in the nature of the appointing authority but in the sense of duty of those charged with making the appointment and in a vigilant public and professional opinion.”

The Indian experience has shown that neither the sense of duty of the appointing authority, nor public vigilance and professional opinion, can always provide an effective safeguard. This is a matter to which those who are in the process of making a new constitution should give their earnest consideration.

Qualifications of a judge

Naturally, in a brief essay of this nature it would scarcely be possible – if it were possible at all – to describe what the qualifications of a judge should be. However, a few observations of a general nature may not be out of place. The first is that there are great difficulties in assessing a person’s fitness for appointment. For instance, when Blackburn was elevated, Lord Campbell was criticised as wanting to do so to promote a fellow Scot. The Times, for instance, had an article under the caption, ‘Who is Mr. Blackburn?’ Shetreet observed that, “the criticism was a total misjudgement of the remarkable ability which Blackburn later demonstrated on the bench.” Lord Coleridge said: “It is one of the curious things about our profession, that you can never tell what sort of judge a man will be. One of the worst judges I ever recollect was Crampton, yet I am sure if he had gone by election, the profession would have elected him, and Blackburn, of whom no one thought anything, made, with some grave defects, one of the very best judges of my time.”

A man may be an excellent advocate, but he may turn out to be a bad judge. Lord Chancellor Hailsham once observed that “it needs a good deal of experience to tell what’s going to happen to a good advocate when he gets on the bench.” A wise appointing authority would seek guidance and take advice from those who should know best about these matters.

The most relevant criteria

What are the most relevant criteria? Thomas Jefferson said that, “judges should always be men of learning and experienced in the laws, of exemplary morals, great patience, calmness and attention, their minds should not be distracted with jarring interests, they should not be dependent upon any man or body of men.” Obviously, an unqualified appointee must be someone who will be, or be perceived by the public to be, beholden to the appointing authority for the great favour of thrusting greatness upon him. Can such a person be trusted to hold the scales evenly in matters between the state and the citizen? Can it be said that justice in a court of which such a judge is a member is not only done, but, in Lord Hewart’s famous words in the Sussex Justices Case, be “manifestly and undoubtedly be seen to be done”?

Age is not a barrier in itself, but persons of maturity – worldly-wise people who have had sufficiently wide exposure – have been preferred for a very long time. Plato in The Republic put it this way: “The judge should not be young; he should have learned to know evil, not from his own soul, but from late and long observation of the nature evil in others. Joseph Story was appointed in 1811 to the US Supreme Court. At the time of his appointment he had established a law practice, and served in the Massachusetts legislature as a member and its speaker. He had also served as a member of the US House of Representatives.

“Learning and experience in the laws,” as Jefferson said, “is of great importance.” Of course, this may be acquired in different ways, and so there many categories of persons who are learned and experienced in the law. The Indian constitution, as we have seen, identified three groups of persons: (1) those who have had judicial experience in the highest state courts – the High Courts for at least five years; (2) persons who have been in practice before such courts for at least ten years; and (3) persons who are, in the opinion of the President, “distinguished jurists.”

Sri Lanka

In Ceylon, as Sri Lanka was then known, at first the Chief Justice and judges of the Supreme Court were appointed by the sovereign on the recommendations of the Colonial Secretary. The last such judge to be appointed was Ralph Windham in 1948. They were usually men who had been at the bar in England for several years, or were the most senior Law Officers of the crown in Ceylon or elsewhere, or had served in other countries in the colonial judicial service. Some of them – Sir Alexander Johnson, Sir Hardinge Giffard, Sir William Carpenter Rowe, Henry Byerley Thompson, F. C. Moncrieff – were also distinguished academics.

The first local judge to be appointed to the bench was Richard Francis Morgan. He was appointed an acting puisne judge in 1857. He was an Advocate and served as District Judge of Colombo and as Deputy Queen’s Advocate and as Queen’s Advocate. The Queen’s Advocate was the equivalent then of the Attorney-General. Harry Dias, after a long and distinguished career at the bar, was appointed to the bench two years later, followed by H.L. Wendt, a distinguished advocate, in 1901. 

The first local Chief Justice was C.P. Layard, who had been a successful advocate, and had functioned as Solicitor-General, puisne Justice and Attorney General, prior to his appointment as Chief Justice in 1902.

Many distinguished men from the official and unofficial bar have been appointed to serve on the bench of the Supreme Court. From the official bar, the appointments have been from the positions of Solicitor-General. From the unofficial bar, appointments have been usually from the ranks of ‘silks’, except during the brief period 1972 – 1978, when silks were neither appointed nor recognised by the government.

Dr. H.W. Tambiah QC was both an eminent lawyer and a scholar. Dr. C.G. Weeramantry had not taken silk when, at the age of 41, he was appointed a commissioner of Assize in 1967 and as a judge of the Supreme Court in 1968. However, he had an extensive practice and was also an outstanding scholar. N.D.M. Samarakoon QC was appointed Chief Justice straight from the bar in 1977. Dr. R.F. Dias may be regarded as the first ‘career judicial officer’ to be appointed to the Supreme Court, for soon after his admission to the bar he spent five years in the Attorney General’s Department and then joined the judicial service and served as an Additional District Judge and as a District Judge and Commissioner of Assize until his appointment to Supreme Court in 1946. In addition to his judicial experience, Dias was also a distinguished academic.

Since then, many ‘career Judges’ have been appointed to the Supreme Court, two of them – M.C. Sansoni and Parinda Ranasinghe – becoming Chief Justices. Since, the creation of the Court of Appeal, career judges as well as senior members of the official and unofficial bar have been appointed to that court and have made their way to the bench of the Supreme Court, usually from the position of President of the Court of Appeal. Earlier the stepping-stone was the position of Commissioner of Assize.

Officers who have been Secretary to the Ministry of Justice or Legal Draftsmen have been considered as occupying positions from which they may be appointed to the Supreme Court. E.H.T. Gunasekera, V.L. St. C. Swan, Hector Deheragoda, G.P.A. Silva (later Chief Justice), and Dr. A.R.B. Amerasinghe were all Secretaries to the Ministry of Justice at the time of their appointment to the bench of the Supreme Court. Parinda Ranasinghe was Secretary to the Ministry of Justice at the time of his appointment to the Court of Appeal. He was later President of the Court of Appeal, a Judge of the Supreme Court, and Chief Justice. H.N.G. Fernando (later Chief Justice) was Legal Draftsman, as was A.W.H. Abeysundere.

Each of the persons in this category had experience in the law at the highest levels, not only as framers of the law or as the principal executive officers responsible for the administration of justice; they all had other qualifications as well.

E.H.T. Gunasekera and Hector Deheragoda were members of the official bar and acted as Solicitors-General. Hector Deheragoda had also assisted Chief Justice Basnayake in the drafting of the legislative enactments. G.P.A. Silva had been a Crown Counsel, Assistant Secretary of the Ministry of Justice, Bribery Commissioner and had served on committees of inquiry and on delegations abroad. V.L. St. C. Swan and Parinda Ranasinghe were both career judicial officers.

Dr. A.R.B. Amerasinghe had been the justice secretary for five years. He had earlier been a lecturer in Law at the University of Ceylon, the Chief Legal Officer and General Manager of the Insurance Corporation of Ceylon. He had served on numerous national and international committees on law-related matters and had also been the author of several books and papers on various aspects of the law. He was also the author of a book on the Supreme Court.

As for the Legal Draftsmen, H.N.G. Fernando had acted for a brief period as Solicitor General and had also served as Secretary to the committee investigating strikes in 1945 and as a Secretary of the Mortgage Law commission. He had also been a lecturer at the Law College. A.W.H. Abeyesundere was a member of the Ceylon delegation that went to Washington in connection with the Aberdeen – Laxapana project. He took silk in 1956 and had served as acting Bribery Commissioner and acting Attorney General.

Position occupied is very important

The position occupied at the relevant time is very important. However, the fact that a person occupies a position recognised to be one from which an appointment to the bench of the Supreme Court may be made, does not mean that any person who occupies such a position – President of the Court of Appeal, Secretary of the Ministry of Justice, Solicitor General, or Legal Draftsman – or that the appointing authority, has the duty to appoint hm. The matter must be decided at the time a vacancy occurs, weighing various considerations, including the need to maintain a balance of expertise on the bench.

Although the Indian constitution provides for the appointment of eminent jurists, no such appointment has been made. In the USA there have been some remarkable scholar-judges on the bench of the Supreme Court: The names of Joseph Story, Oliver Wendelll Holmes and Benjamin Nathan Cardozo readily come to mind. Story wrote his famous commentaries while on the Supreme Court, concurrently serving as a professor at Harvard.

But both Holmes and Cardozo had already gained judicial fame in the state courts before coming to Washington. Holmes had served for 22 years as a Judge on the Supreme Court of Massachusetts, the last three as Chief Justice before his appointment on 1902 to the Supreme Court of the USA Cardozo, who was appointed to the US Supreme Court in 1932, had been in private practice for 23 years, and he served on the New York Supreme Court, and later on the New York Court of Appeal of which he became Chief Judge in 1926.

With the exception of William Howard Taft, who was appointed Chief Justice in 1921, no one had gone to the Supreme Court from a teaching position, until Felix Frankfurter was appointed in 1939. Taft had prior judicial experience and had been Solicitor General of the USA and had been the President of the USA.

On the other hand, Frankfurter had never argued a case before the Supreme Court, or actually in any court since the Adkins case in 1923. However, at the time Frankfurter, aged fifty-six, was a nationally, well-known professor at Harvard. He had worked closely with the judges and was familiar with the work and workings of the Supreme Court. The Judges welcomed his appointment: Justice Harlan Fiske Stone told President Roosevelt that the court “needed Frankfurter”. The Attorney General urged the President to appoint Frankfurter. A huge cross-section of the nation’s 175,000 lawyers endorsed Frankfurter for appointment. The media called for his appointment. And when his appointment was made no one was taken by surprise.

President Kennedy, in announcing Frankfurter’s resignation in 1962 on account of ill-health, said: “Few judges have made as significant and lasting an impression upon the law. Few persons have made so important a contribution to our legal tradition and literature.”

Wiley B. Rutledge (1943), Antonin Scalia (1986), and Anthony M. Kennedy (1987) had strong academic backgrounds, but each of them was appointed to the Supreme Court from a high judicial position and not from a teaching position. Sri Lanka has always had the benefit of having on its Supreme Court bench people appointed from various positions having a wide range of experience. The high quality of work, which has for over 200 years earned and maintained the respect of the public, has been partly attributable to this. Its collective wisdom and independence have never been in question and nothing should be done to impair it. The safety of our liberties eventually depends upon the way in which the Supreme Court functions.

Lord Denning said: “Every judge on his appointment discards all politics and all prejudices. You need have no fear. The judges have always in the past – and always will – be vigilant in guarding our freedoms. Someone must be trusted. Let it be the judges.”

The appointing process and the conduct of the judges have a great deal to do with the safeguarding of the public trust in the judiciary and the appointing authority. The bench therefore must do the right thing according to law to ensure that the judges will be trusted and the public in return would trust the judges to make the right decisions. As Lord Denning said many years ago “SOMEONE must be trusted. Let it be the judges”. 

(The writer is a thought leader)


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