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CHAPTER XV - THE JUDICIARY Establishment of Courts, &c. 105. (1) Subject to the provisions of the Constitution, the institutions for the administration of justice which protect, vindicate and enforce the rights of the People shall be - (a)
the
Supreme Court of the Republic of Sri Lanka, (b)
the
Court of Appeal of the Republic of Sri Lanka, (c)
the
High Court of the Republic of Sri Lanka and such other Courts of First
Instance, tribunals or such institutions as Parliament may from time to
time ordain and establish. (2)
All courts, tribunals and institutions created and established by existing
written law for the administration of justice and for the adjudication and
settlement of industrial and other disputes, other than the Supreme Court,
shall be deemed to be courts, tribunals and institutions created and
established by Parliament. Parliament may replace or abolish, or, amend
the powers, duties, jurisdiction and procedure of, such courts, tribunals
and institutions. (3) The Supreme Court of the Republic of Sri Lanka and the Court of Appeal of the Republic of Sri Lanka shall each be a superior court of record and shall have all the powers of such court including the power to punish for contempt of itself, whether committed in the court itself or elsewhere, with imprisonment or fine or both as the court may deem fit. The power of the Court of Appeal shall include the power to punish for contempt of any other court, tribunal or institution referred to in paragraph (1) (c) of this Article, whether committed in the presence of such court or elsewhere: Provided that the preceding provisions of this Article shall not prejudice or affect the rights now or hereafter vested by any law in such other court, tribunal or institution to punish for contempt of itself. (4)
Parliament may by law provide for the creation and establishment of
courts, tribunals or institutions for the adjudication and settlement of
matters relating to the discipline of bhikkus
or any dispute between bhikkus
or any other dispute relating to the performance of services, in, or in
relation to, temples. Such law may, notwithstanding anything to the
contrary in this Chapter or Chapter XVI, make provision – (a)
for the appointment, transfer, dismissal and disciplinary control of the
member or members of such courts, tribunals or institutions by the
President or by such other person or body of persons as may be provided
for in such law ; (b)
for the exclusion of the jurisdiction of any other institution referred to
in paragraph (1) of this Article in relation to such matters and disputes. In
this paragraph the expressions "bhikku"
and "temple" shall have the same meanings as in the Buddhist
Temporalities Ordinance, as at the commencement of the Constitution.
Public
sittings 106.
(1) The sittings of every court, tribunal or other institution established
under the Constitution or ordained and established by Parliament shall
subject to the provisions of the Constitution be held in public, and all
persons shall be entitled freely to attend such sittings. (2) A judge or presiding officer of any such court, tribunal or other institution may, in his discretion, whenever he considers it desirable - (a) in proceedings relating to family relations, (b)
in proceedings relating to sexual matters, (c) in the interests of national security or public safety, or (d)
in the interests of order and security within the precincts of such court,
tribunal or other institution. exclude
therefrom such persons as are not directly interested in the proceedings
therein.
Independence
of the Judiciary Appointment
and removal of Judges of the Supreme Court and Court of Appeal. 107.
(1) The Chief Justice, the President of the Court of Appeal and every
other Judge, of the Supreme Court and Court of Appeal shall be appointed
by the President of the Republic by warrant under his hand. (2)
Every such Judge shall hold office during good behaviour, and shall not be
removed except by an order of the President made after an address of
Parliament supported by a majority of the total number of Members of
Parliament (including those not present) has been presented to the
President for such removal on the ground of proved misbehaviour or
incapacity : Provided
that no resolution for the presentation of such an address shall be
entertained by the Speaker or placed on the Order Paper of Parliament,
unless notice of such resolution is signed by not less than one-third of
the total number of Members of Parliament and sets out full particulars of
the alleged misbehaviour or incapacity. (3)
Parliament shall by law or by Standing Orders provide for all matters
relating to the presentation of such an address, including the procedure
for the passing of a such resolution, the investigation and proof of the
alleged misbehaviour or incapacity and the right of such Judge to appear
and to be heard in person or by representative. (4)
Every person appointed to be or to act as Chief Justice, President of the
Court of Appeal or a Judge of the Supreme Court or Court of Appeal shall
not enter upon the duties of his office until he takes and subscribes or
makes and subscribes before the President, the oath or the affirmation set
out in the Fourth Schedule. (5)
The age of retirement of Judges of the Supreme Court shall be sixty-five
years and of Judges of the Court of Appeal shall be sixty-three years.
The
salaries of the Judges of the Supreme Court and Court of Appeal. 108.
(1) The salaries of the Judges of the Supreme Court and of the Court of
Appeal shall be determined by Parliament and shall be charged on the
Consolidated Fund. (2)
The salary payable to, and the Pension entitlement of, a Judge of the
Supreme Court and a Judge of the Court of Appeal shall not be reduced
after his appointment.
Acting
Appointments 109.
(1) If the Chief Justice or the President of the Court of Appeal is
temporarily unable to exercise, perform and discharge the powers, duties
and functions of his office, by reason of illness, absence from Sri Lanka
or any other cause, the President shall appoint another Judge of the
Supreme Court, or of the Court of Appeal, as the case may be, to act in
the office of Chief Justice, or President of the Court of Appeal,
respectively, during such period. (2)
If any Judge of the Supreme Court or of the Court of Appeal is temporarily
unable to exercise, perform and discharge the powers, duties and functions
of his office, by reason of illness, absence from Sri Lanka or any other
cause, the President may appoint another person to act as a Judge of the
Supreme Court or Court of Appeal, as the case may be, during such period.
Performance
or discharge of other duties or functions by judges 110.
(1) A Judge of the Supreme Court or Court of Appeal may be required by the
President of the Republic to perform or discharge any other appropriate
duties or functions under any written law. (2)
No Judge of the Supreme Court or Court of Appeal shall perform any other
office (whethr paid or not) or accept any place of profit or emolument,
except as authorized by the Constitution or by written law or with the
written consent of the President. (3)
No person who has held office as a permanent Judge of the Supreme Court or
of the Court of Appeal may appear, plead, act or practise in any court,
tribunal or institution as an attorney-at-law at any time without the
written consent of the President. Appointment,
removal and disciplinary control of Judges of the High Court 32111.
[(1) There shall be a High Court of Sri Lanka, which shall exercise such
jurisdiction and powers as Parliament may by law vest or ordain. (2)
The Judges of the High Court shall be appointed by the President of the
Republic by warrant under his hand and be removable and be subject to
disciplinary control by the President on the recommendation of the
Judicial Service Commission established under this Chapter. (3)
Subject to the provisions of paragraph (2) of this Article, Parliament may
by law provide for matters relating to the retirement of the Judge of such
High Court.
Commissioners
of the High Court 33[111A.
(1) Where the Minister in charge of the subject of Justice represents to
the President that it is expedient that the number of the Judges
exercising the jurisdiction and powers of the High Court in any judicial
zone should be temporarily increased the President may, by warrant,
appoint one or more Commissioners of the High Court to exercise the
jurisdiction and powers of the High Court within such judicial zone as is
specified in the warrant of appointment of such Commissioner of the High
Court. (2)
Every Commissioner of the High Court appointed under paragraph (1) shall
hold office for the period specified in his warrant of appointment and
shall be removable, and be subject to disciplinary control, by the
President, on the recommendation of the Judicial Service Commission. (3)
Every Commissioner of the High Court appointed under paragraph (1) may,
during his tenure of office, exercise, according to law, such jurisdiction
and powers as is, or are, vested or ordained in the High Court by
Parliament, and shall be invested with all the rights, powers, privileges
and immunities (except such rights and privileges as relate to tenure of
office) of a Judge of the High Court, and for this purpose, a reference to
a "Judge of the High Court" in the Constitution or other written
law shall, unless the context otherwise requires, be deemed to include a
reference to a "Commissioner of the High Court” The
Judicial Service Commission 112.
(1) There shall be a Judicial Service Commission (in this Chapter referred
to as the "Commission") which shall consist of the Chief Justice
who shall be the Chairman, and two Judges of the Supreme Court appointed
by the President of the Republic. (2) The quorum for any meeting of the Commission shall be two members. (3)
The Commission shall have power to act notwithstanding any vacancy in its
membership, and no act or proceeding by the Commission shall be, or be
deemed to be, invalid by reason only of any such vacancy or any defect in
the appointment of a member. (4)
A Judge of the Supreme Court appointed as a member of the Commission
shall, unless he earlier resigns his office, or is removed therefrom as
hereinafter provided or ceases to be a Judge of the Supreme Court, hold
office for a period of five years from the date of his appointment, but
shall be eligible for reappointment. (5) The President may for cause assigned remove from office any member of the Commission appointed by him. (6)
The President may grant to any member of the Commission leave from his
duties, and may appoint a person qualified to be a member of the
Commission to be a temporary member for the period of such leave. (7)
A member of the Commission may be paid such salary or allowance as may be
determined by Parliament. Any salary or allowance payable to a member
shall be charged on the Consolidated Fund and shall not be diminished
during his term of office. The salary so payable shall be in addition to
the salary or other emoluments attached to, and received from his
substantive appointment. (8) The Judicial Service Commission may make- (a) rules regarding schemes for recruitment and procedure for 34[the appointment of judicial officers, and scheduled public officers,] and, (b)
provision for such matters as are necessary or expedient for the exercise,
performance and discharge of the powers, duties and functions of such
Commission.
Secretary
to the Commission 113.
(1) There shall be a Secretary to the Commission who shall be appointed by
the President in consultation with the Cabinet of Ministers. (2)
No person holding the office of Secretary of the Commission shall be a
judge of any Court of First Instance, either during or after his tenure of
office as Secretary.
Fiscal
for the whole island. 35[113A.
There shall be a Fiscal who shall be the Fiscal for the whole Island, and
shall exercise supervision and control over Deputy Fiscals attached to all
Courts of First Instance.
Appointment
of other judicial officers 114.
(1) The appointment, transfer, dismissal and disciplinary control of
judicial officers, and (notwithstanding, anything to the contrary in
Chapter IX) of scheduled public officers, is vested in the Commission. (2)
It shall be competent to the Judicial Service Commission by Order
published in the Gazette, to delegate its powers under paragraph (1) of this Article
in respect of such class or category of judicial officers or scheduled
public officers as may be specified, to a Committee of not less than three
Judges, each of whom shall be a Judge of the Supreme Court or of the Court
of Appeal, and one of whom shall be nominated by the Chief Justice as
Chairman. (3)
Any judicial officer or scheduled public officer may resign his office by
writing under his hand addressed to the Chairman of the Commission. (4)
The Commission may, by Order published in the Gazette, delegate to the
Secretary to the Commission 36[the power to make transfers in respect of
scheduled public officers,] other than transfers involving increase of
salary, or to make acting appointments in such cases and subject to such
limitations as may be specified in the Order. (5)
The Chairman of the Judicial Service Commission or any Judge of the
Supreme Court authorized by the Chairman of the Commission shall have full
power and authority to inspect any Court of First Instance or the records,
registers or other documents maintained in such court and to hold such
inquiry as may be necessary. (6) In this Article – “appointment"
includes an acting or temporary appointment; "judicial
officer" does not include a Judge of the Supreme Court or of the
Court of Appeal or of the High Court; "scheduled public officer" means the Registrar of the Supreme Court, 37[the Registrar of the Court of Appeal, the Fiscal, the Registrar of any Court of First Instance] or any public officer employed in the Registry of the Supreme Court, the Court of Appeal or any Court of First Instance, included in a category specified in the Fifth Schedule or in such other categories as may be specified by Order made by the Minister in charge of the subject of Justice, and approved by Parliament, and published in the Gazette.
Interference
with Judicial Service Commission an offence. 115.
Every person who, otherwise than in the course of his duty, directly or
indirectly, by himself or by any other person, in any manner whatsoever,
influences or attempts to influence any decision of the Commission or of
any member thereof, shall be guilty of an offence and shall, on conviction
by the High Court after trial without a jury, be liable to a fine not
exceeding one thousand rupees or to imprisonment for a term not exceeding
one year or to both such fine and such imprisonment : Provided
that nothing in this Article shall prohibit any person from giving a
certificate or testimonial to any applicant or candidate for any judicial
office. Interference
with judiciary an offence 116.
(1) Every judge, presiding officer, public officer or other person
entrusted by law with judicial powers or functions or with functions under
this Chapter or with similar functions under any law enacted by Parliament
shall exercise and perform such powers and functions without being subject
to any direction or other interference proceeding from any other person
except a superior court, tribunal, institution or other person entitled
under law to direct or supervise such judge, presiding officer, public
officer or such other person in the exercise or performance of such powers
or functions. (2)
Every person who, without legal authority, interferes or attempts to
interfere with the exercise or performance of the judicial powers or
functions of any judge, presiding officer, public officer or such other
person as is referred to in paragraph (1) of this Article, shall be guilty
of an offence punishable by the High Court on conviction after trial
without a jury with imprisonment of either description for a term which
may extend to a period of one year or with fine or with both such
imprisonment and fine and may, in addition, be disqualified for a period
not exceeding seven years from the date of such conviction from being an
elector and from voting at a Referendum or at any election of the
President of the Republic or at any election of a Member of Parliament or
any local authority or from holding any public office and from being
employed as a public officer. Immunity
of members of the Commission 117. No suit or proceeding shall lie against any member of the Commission for any act which in good faith is done or is purported to be done by him in the performance of his duties or discharge of his functions under the Constitution.
32.
Original para (1) repealed and substituted by the Eleventh
Amendment to the Constitution Sec. 2. 33.
Inserted by the Seventh
Amendment
to the Constitution Sec. 4. 34.
Substituted by the Eleventh
Amendment to
the Constitution Sec. 3, for “the appointment of judicial officers.” 35.
Inserted by the Eleventh
Amendment to
the Constitution Sec. 4. 36.
Substituted by the Eleventh
Amendment to
the Constitution Sec. 5 (1) for “the power to make all transfers.” 37.
Substituted by the Eleventh
Amendment to
the Constitution Sec. 5 (2), for “the Registrar of the Court of Appeal,
the Registrar of any Court of First Instance.”
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