Sri Lanka (BASL) that the reforms were not designed to benefit or influence any particular judge, but were part of a broader effort to strengthen the judicial system, speed up the delivery of justice and address longstanding capacity constraints.
Below is the full speech made by the President:
‘I would like to briefly present our views on the matters raised here, as well as the reasons that have shaped our approach to this process.
The Bar Association of Sri Lanka (BASL) issued a statement this morning, even though we had scheduled this discussion for this evening. The statement set out your position on the matters under discussion. Therefore, you have come here with a particular position. I have made a considerable effort to come here with an open mind and that was my intention from the outset.
I believe that, in our country, everyone is free to express their views on any matter following a discussion. However, when a discussion has already been scheduled, I do not believe it is appropriate to issue a statement in the morning setting out the content, substance and points to be presented at the discussion later in the day. My view is that doing so can constrain the scope for an open discussion. I make this observation, while fully recognising and respecting your right to express your views and to issue such statements.
When the President of the BASL presented his views, he stated that this was his personal position. I would like to make it clear that I do not regard the views expressed by you as your personal views. I accept them as the views of the legal profession that you represent. I do not, in any way, regard them as your personal opinion.
Secondly, you may say that this represents the views of the entire legal profession. Someone else may say that it does not represent the profession as a whole; another may say that it represents the majority, while someone else may say that it represents only a minority. That remains open to debate. Whether these views represent the entire profession, the majority or a minority is a matter that can be debated by all of us. I do not think we necessarily need to reach a definitive conclusion on that matter.
Thirdly, my approach is firmly grounded in the Constitution. I have absolutely no intention of using my executive powers, or any powers vested in us, beyond the authority granted by the Constitution.
Then there is the alleged risk referred to by Attorney-at-Law Upul, namely, that the previous President had to leave office because of a constitutional amendment and that I, too, might have to leave office as a result. I am prepared to accept that risk. I did not come into office with the intention of remaining here indefinitely. I am also someone who is prepared to take risks in order to bring about change. I do not believe that meaningful change can take place without taking risks. Change always requires a willingness to accept a degree of risk.
The best example I can give is the Easter Sunday investigation. The investigation has been entrusted to the intelligence services, who are also responsible for my security. Yet I am prepared to engage with the investigation. I am aware that doing so involves a risk to my personal safety. However, I do not believe that meaningful change can be achieved without accepting risks. Therefore, I am prepared to take that risk because I believe it is necessary for the people of this country. If, as a result of accepting that risk, I lose my position, I am fully prepared to accept that outcome and leave office. I am ready to do so.
Turning to the other matters that were raised, there was the issue of privilege that you raised, Madam. Where do we draw the line when defining privilege? How can it not be considered a privilege to pave the way for someone personally selected by an individual to eventually occupy the position of Chief Justice? There is a history of such practices.
If someone personally selects an individual, how is that person then brought to the forefront? Such actions can be interpreted as privileges centred on an individual. Another person could interpret the proposal to increase the number of Supreme Court judges from 11 to 17 and the number of Court of Appeal judges from 12 to 20 as an attempt to bring a personally selected group of individuals into the Supreme Court and the Court of Appeal.
Therefore, I believe that any change we make within the judicial sector could be interpreted as a privilege or as an undue influence being exerted on another person. I believe there would be virtually nothing we could do that could not be interpreted in such a manner.
If we look at the changes that have taken place in recent times, when the number of Supreme Court judges was increased from 11 to 17, it could be interpreted as meaning that the provision was created specifically to bring in six individuals who had been personally selected. Today, any change made within the Supreme Court could be interpreted as a privilege from increasing judges’ salaries to granting vehicle permits. Therefore, I made every effort to ensure that this was not structured as a privilege centred on any particular individual.
For that reason, I do not regard this as a privilege. I regard it as an effort to take the existing state of the judiciary to a new level. It is a transformation of the judicial system from its present state to a more advanced position. I do not consider it a privilege intended for any particular individual.
‘These vacancies were not kept open with any particular individual in mind nor were they left unfilled, while waiting for someone to become eligible or qualified for appointment. They remained vacant because of the circumstances surrounding the Easter Sunday case, which has attracted considerable public attention. My only objective was to ensure that justice was served in that case’
‘Police officers are among those who have suffered the highest number of deaths while on duty in Sri Lanka. Last year, 1,100 Police officers died while performing their duties. We are taking steps to recruit an additional 10,000 Police officers, provide them with the equipment they require, including improvements to their uniforms and equip them with the necessary technology. We need to strengthen the investigative process’
Then comes the question: why was it done now, when others had already left and could it not have been done earlier? The answer is that, whenever such a measure is introduced, someone may have retired the day before it takes effect. Likewise, someone else may benefit from it after it has been introduced. Otherwise, such a reform could never be implemented. Whenever such a change is made, there will inevitably be judges who have already retired and others who are approaching retirement age. This is a situation that exists within any judicial system at any given time. Therefore, I do not interpret this as an undue privilege or as undue influence being exercised in favour of a particular group.
Regarding the specific issue you raised concerning the filling of vacancies, I intend to resolve this matter within approximately one month. There is one specific reason for this and I will explain it to you clearly. There is the Easter Sunday case. That case involves approximately 23,000 charges and 3,000 witnesses. The three-member High Court Bench hearing the case comprises some of the most senior judges currently serving in the High Courts. As you have pointed out, those judges would then be among those eligible for appointment to the Court of Appeal.
When I looked into the matter, I found that the case is now at its final stage. It is a case that has attracted significant public attention and in which society has a strong expectation that justice will be served. We all know this. Therefore, I had the view that the judge concerned should be appointed to the Court of Appeal. You are aware of the potential impact that such an appointment could have on the case. I also considered the impact on the judge if he were not appointed. I had to consider whether having him continue to sit on such a significant case could itself place him at an unfair disadvantage. That was the consideration involved.
The next question was why this would not have an impact on appointments from the Court of Appeal to the Supreme Court. I also examined that issue. The volume of cases in the Supreme Court has been steadily decreasing, whereas the more pressing difficulty has arisen in the Court of Appeal. When the two situations are compared, I believe it would be inappropriate to move a group of judges from the Court of Appeal to the Supreme Court while leaving vacancies in the Court of Appeal.
Therefore, I want to state very honestly that these vacancies were not kept open with any particular individual in mind, nor were they left unfilled while waiting for someone to become eligible or qualified for appointment. They remained vacant because of the circumstances surrounding the Easter Sunday case, which has attracted considerable public attention. Even today, reports have indicated that the case could be concluded relatively soon. My only objective was to ensure that justice was served in that case.
That is why I believe this is perhaps the clearest example of judicial independence and the strongest assurance we can provide to people who are awaiting justice. If I had wanted to, I could have allowed the Easter Sunday case to collapse. There are approximately 23,000 charges and 3,000 witnesses. Who would come forward to hear such a case again? When would justice ultimately be delivered to the people? That was the consideration behind my approach.
However, I recognise that, in seeking to ensure fairness to one person, another person may have experienced some degree of unfairness. It is therefore a relative matter. The question is whether, having recognised the disadvantage faced by one person, justice was nevertheless secured for others. That is the balance that has to be considered.
However, the more pressing issue lies within the Court of Appeal rather than the Supreme Court. That was the conclusion I reached. That is the basis of my position regarding these appointments.
This is our principle and our policy. I accept the concerns you have raised. The question is whether ensuring justice means simply filing a case and having it heard expeditiously, or whether the process leading up to the filing of the case is equally important. As you pointed out, that process is also crucial. Therefore, the first step must be to strengthen our investigative process. At present, the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) has only one office, in Colombo. A bribery allegation arising anywhere in the country has to be brought to Colombo. I expect to establish 24 CIABOC branch offices across the country. Approval has now been granted to recruit 373 officers for this purpose. I have also discussed the matter with the Department of Management Services and obtained approval to place these investigators on salary scales higher than those applicable to the general public service. Investigators need to be placed on an appropriate salary scale because we must strengthen the investigative capacity of the Commission. We recognise the importance of doing so.
‘What we are proposing is a systemic change. Previous changes have often focused on individuals or been tailored to particular individuals’
‘If I had wanted to, I could have allowed the Easter Sunday case to collapse’
Then there is the Sri Lanka Police. The approved police cadre is 102,000, but only around 72,000 officers are currently serving. Of these, nearly 4,000 are on medical leave or are otherwise unable to perform uniformed duties. This means that, out of a cadre of 102,000, only around 68,000 officers are effectively available for duty. These are the personnel from whom we expect to carry out investigations and perform the broader investigative functions required in the country. Police officers are among those who have suffered the highest number of deaths while on duty in Sri Lanka. Last year, 1,100 Police officers died while performing their duties. They are working 18 to 20 hours a day. Therefore, we are taking steps to recruit an additional 10,000 Police officers, provide them with the equipment they require, including improvements to their uniforms and equip them with the necessary technology. We need to strengthen the investigative process. I have observed that investigations often take a considerable amount of time. This is because of the large number of complaints being received and the shortage of personnel available to investigate them. That is why we are strengthening the investigative institutions.
Next, we need to strengthen the Attorney General’s Department to support investigations and conduct prosecutions. There is, in fact, a problem within the Attorney General’s Department. Skilled and experienced legal officers are leaving the department. We have already granted approval to recruit 50 additional officers.
There is also an issue with the current promotion process. Our Minister has begun discussions to revise and improve that process.
In addition, legal officers receive certain allowances, particularly when they handle cases involving companies. I have decided that these allowances should be increased. Unless we ensure that legal officers are placed on an appropriate remuneration structure, we cannot retain and develop highly capable legal professionals within the Attorney General’s Department. We are therefore also giving attention to this matter.
We are also putting in place the necessary preparatory measures before cases reach the courts. I believe that, from the perspective of the judiciary, this constitutional amendment has been delayed. In my view, this amendment should have been introduced alongside the 20th Amendment. When the 20th Amendment increased the number of Supreme Court judges from 11 to 17 and the number of Court of Appeal judges from 12 to 20, let us assume that all six additional Supreme Court judges were appointed from the Court of Appeal. That would have created six vacancies in the Court of Appeal. There were also eight new positions created by increasing the number of Court of Appeal judges from 12 to 20. That would mean a total of 14 appointments would have been required.
At that time, there were only 12 judges in the Court of Appeal. If six of those 12 judges were promoted to the Supreme Court, only six would have remained. To bring the number of Court of Appeal judges up to 20, 14 new judges would therefore have had to be appointed. I believe that was the appropriate time to introduce this amendment. It was then that the increase should have been implemented while retaining and building upon the experience of the existing group of judges. However, that did not happen. That is now a matter of the past.
Therefore, there is a need to retain a certain level of experience within the judicial system. What you said is correct. Some judges may be 65, others 60 and some may be particularly experienced in writing judgments. I accept all of that. However, we cannot make these changes simply by selecting the individuals who are considered capable of writing judgments. That is precisely where the issue of undue privilege and undue intervention arises. If individuals are selected and appointed on the basis of their ability to write judgments properly, who makes that selection? Does the outcome then depend on the person making the selection? That is why I do not believe this was done on the basis of favouritism. I believe it would be preferable to have some form of objective assessment mechanism and make appointments according to that assessment. However, I do not believe that such an assessment mechanism, by itself, would necessarily guarantee judicial independence. That is why I believe the necessary change must be achieved through a broader transformation of the judicial system as a whole.
Then comes the question: will cases actually be heard and concluded more quickly? That is the key issue. The next matter concerns the Court of Appeal. I am not proposing to increase the number of Supreme Court judges. However, I am proposing to increase the number of Court of Appeal judges. The Constitution already provides for the Court of Appeal to sit at provincial level. In other words, the jurisdiction of the Court of Appeal does not necessarily have to remain concentrated in Colombo; while the Court of Appeal remains centrally administered, it can sit in different provinces from time to time. We need to implement that provision and develop the necessary infrastructure to support it.
I have therefore included an increase of four judges to provide the additional capacity required. If it is decided that the Court of Appeal should sit in another location, these additional judges would provide the capacity necessary for such sittings. There is also a significant backlog of cases in the High Courts. I believe we need to establish approximately 11 new courts, primarily across 10 districts, although proposals have now been made for around 11 locations.
We have therefore decided to establish approximately 11 new High Courts, including in areas such as Kurunegala. Once these new courts are established, we will also need to increase the number of High Court judges. Accordingly, we have decided to increase the current cadre from 110 to 120 judges, as additional High Courts need to be established.
Contd. on P11…
The reason is that High Court judges are not part of a general pool in the same way as judges of the Court of Appeal and the Supreme Court. Those courts have a pool of judges, whereas a High Court judge must have a specific court to serve in; otherwise, the individual cannot function as a High Court judge. Therefore, the number of High Court Judges needs to increase in line with the number of new High Courts established. I recently saw a comment suggesting that a deadlock could arise, with the courts effectively being locked for two years and all appointments being frozen as a result. That is not the case. The Supreme Court appointments may be affected by the proposed changes, but the Court of Appeal will continue to be staffed as the additional capacity is created. The four additional Court of Appeal judges will be appointed as the necessary Court of Appeal sittings are established. Similarly, High Court judges will be appointed in line with the establishment of new High Courts. Magistrates will also not have to wait an additional two years before becoming eligible for promotion to the High Court. Promotions within the Magistrate Courts will take place correspondingly.
The next matter you raised concerns the large number of cases pending before the Magistrate’s Courts and the need to reform and strengthen those courts. The Judicial Service Commission is currently taking steps to recruit 50 additional magistrates. According to the information I have received, I do not know whether the interviews have yet been conducted and it is not for me to determine that. If a selection panel determines that only 32 candidates meet the required standard, I cannot instruct them to appoint 33. That would constitute undue interference. Nor can I instruct them to appoint all 50. The panel responsible for recruitment has the authority to determine who meets the standard it considers necessary and to appoint accordingly. That is what judicial independence means. I will not ask why 50 positions were approved but only 32 candidates were selected. That would not be appropriate. The panels responsible for making these appointments have the right to decide not to recruit candidates who do not meet the standard they consider necessary.
These are some of the changes we are making within the judicial system. However, there is little point in establishing additional courts if we are unable to attract and retain the professionals required to staff them. I am aware that Sri Lanka currently faces difficulties in recruiting and retaining professionals in several fields. This is one of the reasons why the retirement age of doctors has been increased from 60 to 63. Initially, this extension applied only to specialist doctors, but it was subsequently extended to all doctors. Therefore, while the retirement age in the general public service remains 60, doctors have been permitted to serve until the age of 63.
More broadly, our first responsibility is to retain the professionals working in these critical fields. Judges, too, face a number of issues, including difficulties relating to official accommodation and deductions from their housing-related benefits. We intend to address all these issues through the Budget. I also expect some of these matters to be resolved even before the Budget is presented.
Another issue is the shortage of support staff. I understand that there is currently a shortage of approximately 1,007 staff members within the judicial sector compared with the approved cadre.
Of these 1,007 vacancies, approval has already been granted to recruit approximately 260 staff members and we will proceed to fill the remaining vacancies as well. We have already received around 21,000 applications for the 260 positions, which illustrates the scale of the recruitment process involved.
We will not bypass the established recruitment procedures. The appointments must be made through a proper competitive examination or interview process. Our objective is to fill all 1,007 vacancies and provide the courts with the necessary human resources and facilities to function effectively.
There are also a large number of courts in the country that remain only partially constructed. In the case of courts where there are two unresolved disputes with contractors, we will exclude those particular projects for the time being. For all other partially completed courts, provisions will be allocated in the Budget to complete the construction work. In addition, 11 more courts have been requested, many of which are currently operating from temporary rented premises. We also intend to allocate funds to construct a number of these courts as permanent facilities.
As you pointed out, we have also taken steps towards the digitalisation of the judicial system. In particular, I have instructed Dr. Hans from the Ministry responsible for digitalisation to meet the Judicial Service Commission (JSC) directly and expedite this work. I believe there has already been significant progress in the Supreme Court and the Court of Appeal. The system is currently at a testing stage and although the programme has been initiated, it needs to be implemented and evaluated to determine whether it is successful.
This is therefore part of a much broader process. It is not, in any way, an issue concerning the extension of the tenure of judges. Rather, it forms part of an approach that looks at the entire process, beginning with investigations and continuing through the judicial process.
I also believe that, regardless of whether the concern raised by one of you is ultimately substantiated, we have to acknowledge the perception that it creates. I accept that point. However, this principle applies more broadly. The judiciary has continued to function and people continue to place their trust in the courts. Is that trust based solely on the most favourable aspects of the judicial system? No. There have been many circumstances that have not reflected the highest standards. Yet people have continued to place their faith in the judicial system. I, too, place my trust in this judicial system.
In reality, what we are proposing is a systemic change. Previous changes have often focused on individuals or been tailored to particular individuals. That is open to interpretation.
I have seen some people asking why this cannot be done after 1 December. If the argument is that it cannot be done after 1 December, then the issue is not really one of principle or policy; rather, it suggests that there is a concern about particular individuals.
I have no personal interest in any particular individuals. I do not even know many of the people concerned. As you know, I have had no close association with many of those who hold positions at that level. I only came to know the names of some of them after assuming this office. They are people whom I would not otherwise have had occasion to meet.
Nevertheless, I believe that a change to the system is necessary.
I believe that this entire process is being undertaken to bring about that systemic change. Therefore, I understand that, in the course of a campaign or a struggle, arguments may sometimes be presented beyond the strict limits of the underlying issue. That is part of the nature of such campaigns and I can understand that as well.
When conducting a campaign, it is often necessary to frame the argument somewhat more strongly than the underlying reasoning itself. I understand that. This can create a heightened sense of alarm for example, suggesting that public confidence in the judiciary will be completely undermined from this point onwards, or that people may begin to question whether a judgment was influenced because the judge concerned received some form of special privilege.
I believe that such arguments can arise as part of efforts to mobilise public opinion when there is disagreement with a particular course of action.
That is the nature of many campaigns. Arguments are often framed somewhat beyond the strict limits of the underlying reasoning.
I am not saying that you are doing this. I am referring to the broader public discourse. The discussion taking place outside the Bar Association sometimes goes beyond the substantive argument.
At times, even the labels being applied to this Constitutional amendment go beyond what is actually contained in the Constitution or supported by the underlying argument. They are sometimes framed in terms of creating fear and alarm rather than through the substance of the argument itself.
Therefore, our view is that we must proceed from the principles and policy objectives underlying this reform.’