The newly appointed judge to the Supreme Court Saleem Marsoof PC emphasised that for the preservation of judicial independence, it was indispensable that there was transparency and fairness in the process of making appointments to, and promotions in, the judiciary.
He was speaking at the ceremonial sitting of the Supreme court held on Friday to welcome justice Nimal Gamini Amaratunga and himself. During his address he said, `If appointments and promotions are made without regard to age old traditions and rules of seniority, not only the independence of the judiciary but also the public confidence in the judicial system will thereby be seriously affected.`
Justice Marsoof also said he strongly believed that Justice, as much as Peace, is prerequisite for social harmony, political stability, progress and development but said he doubted if justice can be secured in an environment that is devoid of an efficient, independent and impartial judiciary. On a personal note, he said that the Attorney General`s Department was his second home for twenty nine long years and said there is no better training ground for potential judges.
`The judiciary should not consist of only career judges and opportunities must be available for those from the official and unofficial Bar to be recruited into the judiciary. This is because diversity is an important characteristic of a virile judiciary,` he said.
Justice Marsoof also said the post-relative criteria formulated by the Constitutional Council does provide for a certain degree of diversity. However, it is necessary to provide the members of the Bench and the Bar opportunities to make representations regarding these criteria so that they can be further refined.
`I am strongly of the view that the Constitutional Council should consider amending its post-relative criteria for appointment of judges of the Supreme Court to enable any Additional Solicitor General who had been conferred silk to be considered eligible for such appointment,` he said.
Justice Marsoof added that the Constitution of Sri Lanka declares that Sovereignty is in the People and is inalienable. Being a representative democracy, the powers of the People are exercised by the legislative, executive and judicial organs of State in trust for the People.
`I therefore consider myself bound by the commandment of God expressed in the Holy Quran, in the chapter entitled Sura An Nisaa IV:58,` he said. Justice Marsoof also pledged to administer justice impartially between citizen and citizen, and between state and citizen without fear or favour, answerable only to God.
`During the short period of time I held the office of President of the Court of Appeal, I received the fullest co-operation of all the Judges of that Court, the Registrar Mrs. M.M. Jayasekera, her Deputy Mr. S. Pinnaduwa, and the staff of the Court of Appeal, whom I thank wholeheartedly for their support and assistance. I was, with their help, able to identify some of the causes for the delays experienced in that Court, and to provide some solutions. The major problem with the Court of Appeal has been that it is understaffed and overworked`, he said.
`Its volume of work actually requires twice the number of judges to handle. In the first eight months of 2004 alone 658 civil appeals were filed but during the same period only 251 appeals were disposed of, and as on 31st August 2004 the number of pending civil appeals accumulated over the ages stood at 9,807. In these circumstances, it is heartening to note that there is a proposal to reconstitute the Court of Appeal so that it could also function as a Provincial Court of Appeal, and the appeal briefs can be prepared and the sittings held in the Provinces.
`While this could expedite the process of hearing not only civil but also criminal appeals, I would humbly suggest that the opportunity should be availed of to vest the jurisdiction presently vested in the Provincial High Court under the Thirteenth Amendment to the Constitution in the Provincial Court of Appeal, so that the High Courts could concentrate more on criminal trials.
In my view the government should also consider transferring the fundamental rights jurisdiction vested in the Supreme Court to the Court of Appeal so that persons from distant places such as Jaffna, Badulla, Moneragela or Hambantota do not have to come all the way to Colombo to redress their grievances under Article 126 of the Constitution. There could be an appeal to the Supreme Court from a decision of the Court of Appeal, with the leave of the Supreme Court`, he said.