The Judicial Service Commission: A review of the Speaker’s ruling

IT was reported that Speaker Jagath Wickramaratne has rejected a motion submitted to him by 31 Members of Parliament requesting the appointment of a Select Committee of Parliament to examine the exercise by the Judicial Service Commission of its powers relating to “the appointment, promotion, transfer, dismissal, and disciplinary control” of judicial officers.

- By Dr. Nihal Jayawickrama

The reason for the rejection of the motion, as stated by him, is that compliance with the motion “would be a derogation of the independence of the judiciary and thereby a derogation of the judicial power of the People”.It is the view of Speaker Wickremaratne that the Judicial Service Commission “exercises the judicial power of the People”. That, I submit, is the fundamental flaw in the Speaker’s ruling. The Speaker’s ruling does not state why it chose not to follow, or even refer to, that authoritative statement of the Supreme Court.

The Queen v. Liyanage

As far back as 1962, in the case of The Queen v Liyanage, (Trial at Bar No.1 of 1962), the Supreme Court comprising Justice T.S. Fernando, Justice L.B. de Silva, and Justice Sri Skanda Rajah comprehensively examined the concept of “judicial power” and held as follows:

“Judicial power in the sense of the judicial power of the State is vested in the Judicature, i.e. the established civil courts of this country.

The Court proceeded to note that:

The Chief Justice and at least one other Judge of the Supreme Court are members of the Judicial Service Commission, a body performing executive functions.”

Speaker Anura Bandaranaike's ruling

Speaker Jagath Wickramaratne