by VIGIL LANKA MOVEMENT^[1]

The two most important components of the machinery of justice are the Judiciary and the Legal Profession. The improvement of the quality of justice requires the improvement of the Judiciary and the improvement of the Legal Profession. The improvement of the Legal Profession is vital because the judiciary is recruited from those with legal training.
The following suggestions are made for the improvement of the judiciary:

APPOINTMENT OF JUDGES

(i) Appointments to the Minor Judiciary 

By the minor judiciary is meant the District Courts, Magistrates’ Courts, Primary Courts, Labour Tribunals and other inferior courts and tribunals. 

The appointing authority could continue to be the Judicial Service Commission (JSC) constituted as at present. However, such Commission should appoint only on the recommendation of a body consisting of senior judges of original courts. It is suggested that this body could be called the Judicial Service Advisory Committee (JSAC), and that it should comprise five members as follows: (a) two Judges of the High Court of Sri Lanka, (b) two District Judges, and (c) the Chief Magistrate of Colombo. They should be appointed by the Chief Justice for a period of two years and should be eligible for reappointment for further periods of two years. A member of the Committee should cease to hold office by resignation or by ceasing to hold office as High Court Judge, District Judge or Chief Magistrate. One of the members of the Committee should be nominated by the Chief Justice to be its Chairman. 

It is important to involve senior original court judges in the appointment process of the minor judiciary as they will know at first hand those best suited for appointment, judging by performance in court, reputation at the bar, and to some extent, moral character. 
The Secretary to the JSC should be appointed by the JSC itself. The appointee should be a senior, if not the most senior, District Judge. The Secretary of the JSC should function also as the Secretary of the JSAC. 

When the need arises for appointment to the minor judiciary, applications shall be called for by the Secretary on the direction of the JSC. The JSC should conduct a written examination for all qualified applicants. 

No person who is not an Attorney at law having more than five years’ professional experience in court practise shall be eligible for appointment to the minor judiciary. 

Those obtaining the highest marks (not more than five times the number to be appointed) should be referred by the JSC to the JSAC. The JSAC should examine those candidates viva voce, and inquire into the suitability of each such candidate for appointment. Professional experience, ability, character, conduct and temperament of each candidate should be inquired into. Thereafter the JSAC should make its recommendation to the JSAC for appointment. The number recommended should not be more than the number to be appointed.

(ii) Ad-hoc appointments to the minor judiciary 

If it is the opinion of the Chief Justice that a particular original Court such as a District Court, Magistrate’s Court, Primary Court or Labour Tribunal is burdened with a heavy back log of cases and that it is desirable to appoint one or more ad hoc judges to such court, he/she should direct the Secretary of the JSC to take steps to convene the JSAC and obtain the recommendation of the Committee for such appointment. In such an event it should not be necessary for the Secretary to call for applications unless the JSAC directs him/her to do so. In the appointment of ad hoc judges no written examination should be held. However the JSAC could hold a viva voce examination of a person it intends to recommend to the JSC for appointment as an ad hoc judge. 

An ad hoc judge should be appointed for a fixed period (of not more than eighteen months) and for a particular station only, at any given time. An appointee as an ad hoc judge should be an attorney at law having at least twelve years’ experience in court practice in the particular field in which he/she is to be an ad hoc judge. His/her station as ad hoc judge should not be in an area in which he/she is likely to practise as an attorney at law once he/she ceases to be such ad hoc judge. A person who has ceased to hold office as an ad hoc judge on his/her appointment and having expired by effusion of time, may be appointed as an ad hoc judge again after three years.

(iii) Appointments to the High Court of the Republic 

The President of the Republic should appoint as a High Court Judge any person from amongst persons recommended to him/her for the purpose by a body composed of the bench and bar. This body which could be called the High Court Appointment Advisory Board (HCAAB) could consist of five persons: (i) Chief Justice (who shall be ex officio the Chairman), (ii) President of the Court of Appeal, (iii) Attorney General, and (iv) two representatives of the Bar Association of Sri Lanka (BASL). 

The Registrar of the Supreme Court could function as Secretary of the HCAAB and could convene it at the direction of the Chief Justice. 

The two representatives of the BASL should be nominated by the Bar Council on an ad hoc basis and such nomination shall be valid for a period of two months only. However, a person may be re-nominated as a representative of the BASL in the HCAAB for further periods of two months at a time on an ad hoc basis. Preferably, civil lawyers should be so nominated by the Bar Council with a clear direction regarding which name or names should be proposed at the HCAAB with a view to having it recommended for appointment. 

Any attorney at law with professional experience of not less than fifteen years at the bar and/or as a judge in the minor judiciary should be eligible for appointment as a Judge of the High Court. 

(iv) Appointments to the Court of Appeal of the Republic 

The President of the Republic should appoint a as Judge of the Court of Appeal any person recommended to him/her by a body composed of five persons representing the bench and the bar as follows: (a) Chief Justice (who shall ex officio be Chairman), (b) President of the Court of Appeal, (c) Attorney General, and (d) two representatives of the BASL. This body could be called the Court of Appeal Appointments Advisory Board (CAAAB). 

The Registrar of the Supreme Court could function as the Secretary of the CAAAB and convene it when directed to do so by the Chief Justice. 

The two representatives of the BASL should be nominated by the Bar Council on an ad hoc basis and such nomination shall be valid for a period of two months only. However, a person may be re-nominated as a representative of the BASL in the CAAAB for further periods of two months at a time on an ad hoc basis. Preferably, lawyers who practise exclusively in the original courts should be so nominated by the Bar Council with a clear direction regarding which name or names should be proposed at the CAAAB with a view to having it recommended for appointment. 

(v) Appointment of the President of the Court of Appeal 

The most senior Judge of the Court of Appeal should be appointed as the President of the Court of Appeal by the President of the Republic.

(vi) Appointment of Judges of the Supreme Court of the Republic 

The President of the Republic should continue to appoint Judges of the Supreme Court. No person who is not the next most senior Judge of the Court of Appeal should be appointed as a Judge of the Supreme Court unless such appointment is approved in writing by the Chief Justice (and in his/her absence from the country, by the next most senior Judge of the Supreme Court).

(vii) Appointment of the Chief Justice 

The President of the Republic should continue to appoint the Chief Justice. A Judge should not be appointed Chief Justice over the head of a more senior Judge.

TRANSFER OF JUDGES OF ORIGINAL COURTS 

The present provisions in the Constitution regarding the transfer of Judges of the High Court by the President of the Court of Appeal can continue. 

The power to transfer judges of the minor judiciary can continue to be vested in the JSC. On the understanding that the Secretary of the JSC shall be appointed by the JSC and that he/she/she shall be a senior (if not the most senior) District Judge, the present provision in the Constitution that the JSC may delegate to the Secretary the power of transfer, can continue.

DISCIPLINARY CONTROL OF JUDGES 

The provisions of the Constitution relating to disciplinary measures against Judges of the Supreme Court, Court of Appeal, and the High Court, should continue to apply. 

Every complaint against a member of the minor judiciary or a Judge of the High Court should forthwith be acknowledged by the JSC. The JSC should without delay cause a preliminary investigation to be held regarding such complaints. If the JSC decides that the preliminary investigation reveals a prima facie case against such judge, the JSC should without delay cause a disciplinary inquiry to be held. Steps should be taken to impose appropriate punishment to a judge found guilty of a breach of discipline. The JSC should publish every two years the statistics of complaints received as well as the findings of every disciplinary inquiry where a finding of guilt was entered, together with the punishment imposed, giving the name of the judge so punished. This will be an effective deterrent against breach of discipline by judges of the original Courts. 

A judge who was removed from office on disciplinary grounds or who resigned from office pending a disciplinary inquiry against him/her, shall be thereafter disqualified for all time from holding office as a judge.

INDEPENDENCE OF THE JUDICIARY 

In order to prevent the Judiciary being bribed by the President of the Republic, the Cabinet Ministers or any others who operate State funds, the following words should be added at the end of Article 108(1) of the Constitution:

“No payment of any kind (whether called an allowance or not) shall be paid to any Judge of the Supreme Court, the Court of Appeal, or of the High Court, or to any judge of the minor judiciary, from the President’s Fund or from any fund other than the Consolidated Fund.” 

For the fuller independence of the judiciary, the words “may be required” in Article 110(1) of the Constitution should be replaced with the words, “may, with the prior consent in writing of the Chief Justice and of such Judge, be required”. 

In order to reduce the dependence of the Judges of the Supreme Court and Court of Appeal on the President of the Republic, Article 110(2) should be amended by the repeal of the following words found there:

“or with the written consent of the President.”

If necessary, legislation should instead be introduced within the meaning of the words “by written law” in Article 110(2), to enable Judges of the Supreme Court and of the Court of Appeal to accept other offices or places of profit or emolument, such as positions on international adjudicatory bodies or tribunals. 

For the greater independence of the judiciary, the following new provision should be enacted as Article 110(4) of the Constitution:

“No person who has held office as a permanent Judge of the Supreme Court or of the Court of Appeal may, after he/she ceases to be such Judge, hold any paid office or place of profit or emolument under the State, a public corporation or public company the majority of the shares of which are held by the State.”

Law Reforms with Special Reference to Criminal Procedure 

Time has come to consider the relevancy, adequacy and the applicability of the existing laws relating to the Administration of Justice in the field of Criminal Law, particularly in the fields of investigation and prosecution. 

This country has experienced the excessive use of Police powers with the combination of the Emergency Regulations and how these regulations were utilized by various repressive organizations and extra-judicial activists. 

Kidnappings and killings, prosecutions and refusal to prosecute were all part and parcel of the period of terror that this country underwent in the recent past. 

It is not sufficient to identify and bring to books the persons responsible for such activity but it is necessary that we create a system that such activities could not take place once again or at least we must create a system of law enforcement that it could not be used by those who intend to indulge in similar actions in future. 
Many persons were taken into custody and arrested using the powers vested with the police and when some evidence was available regarding the kidnappers or the murderers, no steps were taken to investigate and prosecute. 

Most of these activities were done under the colour of the power given to the ‘Peace Officers’ where the public is under legal duty to surrender, not to obstruct and obey commands given by so called ‘Peace Officers’ most of whom are Police Officers. The powers given to the Peace Officers to enter into houses and buildings for the purpose of search and arrest of offenders, take into custody any person who is ‘suspected of having committed or is committing an offence’ had led the public not to question, challenge or resist the action of the Police Officers, who are identified as such by the Uniform or by the simple expression that ‘we are from the Police’. 

Powers of arrest and remand and also the refusal to powers a person on bail had been utilized to strengthen the claim of the police that none should resist the ‘Peace Officers.’ Although in most cases the Courts had the power to release a person on bail, the Police used to make representations even in Courts which made it difficult for the presiding judicial officer to release a person on bail. For these reasons the Police Force had become the ‘Arm of Repression‘ rather than the Arm of maintaining Law and Order.’ 

Added to this we found that even though there were serious allegations of violations of financial regulations or monetary deals, persons responsible for these things had left the country and those who are suspected of committing abductions, torture and murder are at large and some have left the country. One might wonder whether the rules regarding arrest and detention apply only to some and not to others. At the same time we find that in certain instances, in spite of having strong evidence to suspect a person in committing an offence, such persons were not prosecuted. 

In this context we welcome and appreciate the move by the Ministry of Justice in calling for proposals to review and amend the existing laws in relation to the Administration of Justice. 

In our proposals in respect of these matters we would be touching on the investigations, powers of arrest and prosecutions.

INVESTIGATIONS 

During the times where 90 % of the population was not in a position to read and write, the Criminal Procedure Code made provisions for the police officer to record the statement of a complainant in his/her own words and to obtain the signature of the complainant. At present most of the complainants are more educated and certainly at least as educated as the ordinary Police Constable, who is recording the complaint. In fact in many criminal prosecutions and in many other legal matters, the accuracy of the recordings by the police officers, had come into focus and many a prosecution had lost their case due to such recordings. It had also left room to doubt the accuracy and or the genuinety of the statements so recorded since more often it is alleged that the person who made the statement was not aware as to what was recorded. 
Hence we would suggest that the provisions in regard to this aspect be changed so that: 

a) any person could tender a written complaint, which should be entered in an information book and a separate record of same be kept, with the proof of the identity of the person who makes the complaint. 

b) where a person makes a statement which is to be recorded by the police officer, in doing so should make a carbon copy simultaneously and handed it over to the person making it. 

c) there is a possibility to make a complaint by post. 
Of recording the statements from persons on the basis of a complaint made by another: 

a) It should be done at the residence or the place of work or employment of the person concerned and not be necessary to call the person to the police station. 

b) it should be made compulsory that the complete complaint should be read over to the respondent before he/she is asked to make a statement. 

c) the respondent should make his/her own statement and sign and the police officer should record it only if the respondent request it to be so written. This statement also should be recorded with a copy, and the copy should be left with the respondent. 
Of obtaining copies of those statements: 

a) any person should be able to obtain a certified copy of his/her own statement at any time; 

b) any person should be able to obtain a copy of any statement or a sketch made by a police officer in the course of investigating an offence and the notes thereof after three months from the day of its making or immediately after the filing a plaint in Courts, which ever occurs earlier; 

ARREST AND DETENTION 

Arrest and detention of a suspect has replaced the conviction and sentence. Public out-cry over some crimes are settled by arrest and detention of a suspect. Due to the long time it takes to conclude a trial, the public has lost interest in the final outcome of the prosecution. Hence the public are now more content with the arrest and detention of the suspect than the conviction of the offender. 

This is the adverse effect of the present judicial machinery. However it is necessary to reconsider this aspect in the light of the experience of the recent past where police powers to arrest were used to abduct individuals and detain them. In any event the percentage of the persons who were convicted after trial, who had been remanded prior to trial is so negligible, that the remanding of suspects had proved that more persons who were not convicted had been remanded than vice versa. 

Protections and restraints provided in the present Code of Criminal Procedure Act regarding arbitrary arrest and detention as found in chapter iv, v and vi are not adequate. Therefore it is suggested that the right to arrest and detain an individual be limited to the following instances. 

a) A suspect who is alleged to have committed the offence of murder, rape, gang robbery; 

b) individual who is escaping from lawful custody or against who a warrant of arrest is issued; 

c) who is committing a scheduled crime in the presence of a police officer; (This schedule may include murder, rape, gang robbery, assault, injury etc.) 
Further provisions should be made in respect of the method and duration of the said arrest, such as: 

a) that the next of kin of the arrested individual should be notified forthwith and the proof that such person was so informed lies with the person who arrested the suspect; 

b) that the suspect should be informed immediately on his/her arrest, the offence or the reason for his/her arrest and his/her statement should be recorded within three hours of his/her arrest; 

c) that the person so arrested should be released by the same person or his/her superior officer within twelve hours of his/her arrest; 

d) that on his/her release from custody, a written document should be given to that person explaining the reason for his/her arrest, duration of such arrest and the next appearance, if necessary, before the same officer or a different officer and the reason for such appearance. 

e) A search of a house, building, vessel etc. should be done only on a warrant issued under the hand of a Judicial or quasi judicial officer and a copy of such warrant should be handed over to the chief occupant of the place to be searched.

CRIMINAL PROSECUTIONS 

In the light of the above proposed amendments it is also necessary to re-structure the present system of prosecuting offenders in Courts. Hitherto, 90% of the criminal prosecutions in the Magistrates’ Courts are instituted and conducted by the Police Officers. It is generally felt that allowing the investigating officers themselves to prosecute is not a satisfactory system and it has led to many social and legal problems. (Please see pages 21 to 25 of the publication entitled “ Human Rights Related Legal Reforms in Sri Lanka” published by the Asian Legal Resource Centre, which is the Final Document prepared at the Workshop held in Bangalore which was jointly organized by Asian Human Rights Commission and Vigil India Movement, 1996.) 

Safeguards and protections found in Human Rights Charters such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, granting adequate time and facilities for preparation of the defence and to communicate with the Counsel of his/her choice should be introduced. Specially the concept of the presumption of innocence should be incorporated in the Criminal Procedure as a necessity. 

In the light of the above discussion we would propose that the investigations and prosecutions should not be concentrated in the hands of the same organ, but should be divorced from each other. 

Today, where complex legal provisions and legal principles are involved in the process of prosecutions and hence that should be handled by professionals. Like in many other developed countries in the European Continent, USA and Australia, Prosecutions should be conducted and cases should be filed by a separate entity, such as ‘the prosecutor’s office’ or a ‘District Attorney’ or by the ‘Public Prosecutor’. 

a) Once the police officers conclude investigations into any alleged offence, they should hand over their ‘crime file’ to the Prosecutor’s office; 

b) If the Police officers are bound to hand over the ‘crime file’ after seven days from the receipt of the first information of the offence or at the conclusion of the investigation, which ever occurs first. Any further investigations should be reported as and when necessary; 

c) Police Officer investigating into a crime feels that the suspect should be arrested, he/she should hand over the crime file to the prosecutor’s office and move the prosecutor to obtain a warrant of arrest from the Magistrate for the arrest of the suspect; 

d) After receiving the crime file, the prosecutor shall give further advise to the investigating officer as to the further conduct of the investigations; 

e) After receiving the crime file, the prosecutor may decide whether to prosecute the offender or not and if he/she decides not to prosecute, he/she must record his/her reasons in the same file; 

f) If the offence alleged to have been committed by the suspect is a one in the first schedule, he/she shall prepare the plaint and the charge sheet and move for summons on the accused; 

g) If the offence alleged to have been committed by the suspect is one in the second schedule, then he/she must prepare the draft of the plaint and draft the charge or indictment and seek leave of the Magistrate to proceed with the filing of a plaint or an indictment; 

h) the Magistrate, on receiving the said application for leave, may 

i) grant or refuse leave; If he/she refuses, reasons must be recorded;

ii) give further directions as to how the further investigations should be done;

iii) issue a warrant for the arrest of the suspect; 

i) All prosecutions in the Magistrate’s Court, shall be instituted and conducted by or under the authority of the Area/District Prosecutor. 

OF BAIL 

It is suggested that the Indian concept of anticipatory bail be introduced. The underlying concept should be that the granting of bail should be the rule and the refusal should be the exception. 

Powers of Magistrate in respect of bail relating to offences under Emergency Regulations should be enlarged and three months mandatory period of remand under such regulations be curtailed and sanctions given to the Attorney-General in this regard should be repealed.

A NOTE IN RESPECT THE POWERS OF THE ATTORNEY-GENERAL: 

It is our view that the Attorney-General is necessarily an organic part of the executive body of the State and therefore his/her powers to give directions to the Judiciary should be removed. Since we are emphatically suggesting that non-summary proceedings relating to serious crimes be abolished as stated below, the powers of the Attorney-General to give directions to the Magistrates in non-summary matters should automatically cease. However his/her power regarding bail and taking over conducting prosecutions in private plaints filed under Sec. 136(1)(a) should be abolished.

NON-SUMMARY PROCEEDINGS AND POST-MORTEM EXAMINATIONS 

As for non-summary proceedings, we are aware that there are arguments for and against the same. In our country, for several decades we have experienced this procedure. Then the Administration of Justice Law No. 15 of 1974 repealed it and it was once again introduced by Act No. 15 of 1979. Having considered all the arguments for and against, we are of the view that such proceedings should be abolished. Some of the reasons are given below: 

1) Futility of having two court proceedings in respect of the same offence where same witnesses are called to give evidence; 

2) Long delay in concluding these proceedings; 

3) Over 95 % of non-summaries end up with committals to the High Court and in High Court more than half of those cases, if contested end up in acquittals; 

4) The financial strain on the average suspect in a non-summary is such that he/she is impecunious by the time he/she has to defend himself at the trial proper in the High Court. 

As far as the Post-mortem examinations are concerned, it is our view that Chapter XXX of the Procedure Act should be amended keeping in mind the time within which the post-mortem report has to be tendered to Court. We suggest improvements in the post-mortem and state that changes are needed in law. These are very necessary in custodial deaths, where it is necessary to prevent such reports being doctored to suit the police and other authorities and further considering the fact that in several other cases there were inordinate delays in the submission of these reports. 

In order to ensure a greater transparency, we further suggest that provisions be made to video filming of post-mortem examinations and a photographic reports in the absence of such video filming. 

Law Reform with special reference to Fundamental Rights 

The present legal position under the constitution that an application under Article 126 of the Constitution should be filed within one month of the infringement or imminent infringment of the fundamental right is too short a period of prescription. The time period should be extended to at least three months. 

At present it is only the Supreme Court that has jurisdiction in respect of the infringement or imminent infringement of a fundamental right by “executive or administrative action.” This jurisdiction should not be restricted to the Supreme Court. It should be given over to the Provincial High Courts as well. 

The provisions of the Constitution do not permit a person other than the very person whose fundamental right was violated to seek relief under Article 126. The Rules of the Supreme Court which permit even other interested persons or attorneys at law to seek such relief, seem to clash with the Constitution. In any event the Rules do not seem to permit public interest litigation in the field of fundamental rights. The Constitution should be amended to permit a wider interpretation of locus standi and public interest litigation. 

VIGIL LANKA MOVEMENT
55/7, Nimala Maria Mawatha
Hendala, Wattala
SRI LANKA. 
E-mail: anton@lanka.gn.apc.org

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1 VIGIL LANKA MOVEMENT is an organization of lawyers in Sri Lanka. Its objectives are to: (a) promote protect and develop political, socio-economic and cultural rights of all perons, particularly their right to life, freedom of expression and employment; (b) to work towards expression of justiciability and the scope of rights; (c) to educate the public of their rights and reliefs available to them; (d) to promote a pro-active approach for protection and promotion of huamn rights and human values; (e) to actively engage in in-depth studies relating to promotion and protection of human rights; (f) to conduct seminars and work-shops and promote public relations; (g) to take all necessary steps to promote and improve the quality of judicial process. [reference: Constitution of the VIGIL LANKA MOVEMENT]