by Sarath Wijesinghe
“Not by passing arbitrary judgments does a man become wise? A wise man is one who investigates both right and the wrong. He who does not judge others arbitrarily according to the truth, that sagacious man is a guardian of law and is called just. One is not wise because one speaks much. He who is peaceful, friendly and fearless is called wise. A man is not versed in Dhamma because he speaks much. He who, after hearing a little Dhamma, realizes its truth directly and is not heedless of it is truly versed in Dhammapada.”
Judges should be impartial and politically insulated
( February 17, 2017, Colombo, Sri Lanka Guardian) Judges should be politically insulated and free to make decisions because they are charged with the ultimate decision over life, properties, rights and duties of the citizen including all kinds of freedoms enshrined in the Constitution and by way of Conventions Powers and Traditions vested with the Executive with great trust to be impartial and should not be undermined overlooked or destroyed. They are the guardians of the supreme law and the citizen. It is also unfortunate that successive governments and the leaders of the Executive have misused and violated this sacred responsibility entrusted to them as the guardians and temporary trustees of the .”Temple of Justice”, which is the backbone of the freedom and equality.
Citizens have the highest expectations on this right as guaranteed by the Supreme Law of the country. Therefore States give special emphasis and protection for the judicial independence, judges and the system of Justice. Independence of the judges and judiciary should be real and not merely apparent safeguards in which guarantees should be jealously guarded by all. Judicial independence or independence of the judiciary is the principle that the Judiciary should be politically independent from legislature and Executive Authority. Courts should not be influenced by any political authority or external influence. Is the Sri Lankan Judiciary independent? – is a million dollar question to which the answer is only known to the inner coconscious of the citizen in the receiving end who possess the proper answer with no proper mechanism to express their views freely . Judiciary should be acceptable and recognized, for the citizen to have trust or faith on; being the branch of government primarily responsible for the judiciary is interpretation. According to UN guidelines and accepted norms of constitutional law under the doctrine of separation of powers are outlined in details in international instruments and conventions, to be followed by the family of nations which trickles down to national laws in democratic models. It is doubtful how many do follow the guidelines and concepts of good governance in conduct of justice and fir play.
Temperament and Qualities of a Judge
Tenure of the office of the judge should be guaranteed and enshrined in the Constitution. No pressure, threat or interference should be exerted on the Judges who will act impartially based on facts and fairly. Judges should be respected and expected to respect the litigants who have entrusted the utmost trust on these human beings learned and trained for this honorable service. Judges always command respect and therefore need not demand respect. How do judges show respect? By treating everyone with dignity, by being polite and courteous, by listening carefully to the testimony presented and arguments of counsel, by being patient, and in general showing that the judges genuinely care about the matters being presented, understand that it is an impartial meeting of those involved and convey the attitude that he/she will do the best to decide the case forming objections on the evidence presented and applicable to the law and judges should not be political animals and have any interest in politics, any religion or any activism in any form other than fair and impartial adjudication. They are expected to lead a secluded life for which they are well remunerated. In the United Kingdom and Sri Lanka judges are paid well and well looked after with perks, respect and facilities. Political and ideological issues should not enter the consideration before a judge. Judges should be careful as they are similar to public exhibits in glass boxes! It is unbecoming of a judge to maintain close contacts with the media and politicians however much one is tempted to be in the limelight and likes publicity. A judge should not be a social or religious activist or a center for public controversies. Judges are human beings and liable to make mistakes. Highest Judiciary in a country must be extra careful in their deliberations as it is difficult to challenge the decision of the final court. Compassion, Decisiveness, Open mindedness, Sensitivity, Courtesy, and Patience, Free from bias, and Commitment to equal justice are some of the main qualities of a judge with the correct judicial temperament. System of judicial independence depends on the citizens’ faith and the trust that judges will decide disputes impartially and fairly free from bias or prejudice. Judges traditionally have been accorded respect from citizens. In return judges must respect all those who include the parties to the dispute, then attorneys, jurors, court reporters, staff and members of public. How many and are their judges living up to the expected standards?
Appointments of Judges and Practices in other Jurisdictions
In the USA some judges are elected by the people. First amendment to the USA guarantees the protection and tenure of the judges as in the case of many common law jurisdictions. Judiciary is the fourth branch of the government and severely scrutinized by the people and the media. David Blankette, once the Home Secretary and Secretary of State in the United Kingdom was compelled to resign in 2004 as a result of the pressure from the media and the activists on matters pertaining to judges and judiciary. Commonwealth countries including UK, India follow the same procedures and traditions in the appointments and conduct of the judges and the judiciary, which is one of the main components of democracy. In the common law jurisdictions too courts interpret law including constitutional status and regulations. They also make law based upon prior case law in areas where legislature has not made law. We mainly follow English Law in this area and the principles and procedures accepted are from the English and Commonwealth practices. Appointment of judges is clearly laid down in the constitution, with safeguards and freedom to the Executive to take impartial and correct decisions. It is sad but correct to state that successive heads the Executive in Sri Lanka has violated the scared trust thrust on them by the people on trust, except the leaderships of Hon D.S. Senanayaka, Hon Dudly Senanayaka, Hon Sri Johan Kotalawala and Hon S W R D Bandaraneike. Ministers were charged and convicted ( Mr Monnakulama and Jayatillaka) on charges of bribery during SWRD which is never heard in the present despite rampant bribery and corruption by Ministers in successive governments. Hon Madam Bandaraneike –the World’s first Prime Minister and the best Foreign Minister ever, made tactical blunders on ill advised by most smart and efficient Minister of Justice then by appointing Justice Jaya Pathirana- one of the finest judges with previous political links leaving a “black spot” in the judicial domain. Most leaders of the Executive after Madam Bandaranaike have not been fair and transparent in making crucial appointments which have direct effect on the Independence of the judiciary, “Due Process” and fair adjudication. President Jayewardene indirectly dismissed the entire higher Judiciary and appointed Mr. Neville Samarakoon Q.C. (from the unofficial bar- with previous strong political background) as the Chief Justice and other Judges under the New Constitution. Many judges lost seniority and the tenure of office but they were helpless as the government then were so powerful and no protests or resistance was shown except stoning on judge’s houses as a protest by government goons.
Though C J Samarakoon was so close to the President he had to go through difficulties which led to unfortunate incidents and early retirement. In making this particular appointment then President Jayewardene overlooked the seniority of Justice Wanasundara – an able and respected and the most senior Supreme Court Judge at that time. . Nation expects President to make the best appointment to be the Head of the Judiciary deciding crucial and decisive junctures future of the destiny and future of the subject. Chief Justice is the head of the Judiciary and under the Constitution, legislature and conventions entrusted with enormous powers in Legal Education, (vide the article on legal education by this author on 29th June 2008 on the subject Law College, Legal Profession, Bar Association and Judicial System) Disciplinary matters of the judges and lawyers and as the head of the final court of appellate with ultimate and final powers of adjudication and administration of justice. As for every head of the Executive JR had his blue eyed brother HW for best or worst in all legal affairs on the judicial arena. HE R Premedasa though a non-lawyer with iron fist in administration, knew the law and the legal fraternity well living in Hulftsdorp with the common litigants and lawyers. His conduct with the Bar and Judiciary has no visible conflicts except on his rough and tough administration that has influenced the justice system too. He did not make controversial appointments nor did he make any drastic changes to the system. He was assisted by a battery of lawyer’s headed by BJ Fernando PC and Sundaralingam. HE Chandrika bandaraneika was misguided and misdirected by her most powerful and senior civil servant/s in undermining and down grading the judiciary mainly by appointing the most controversial AG Sarath Silva with accusations of personal character and judicial conduct was promoted to CJ, despite the objections of the legal luminaries in the legal fraternity including H L de Silva and R K W Genesekara and social Groups led by Ravaya Editor Victor Ivon..
HE Mahinda Rajapaksa as an able lawyer and a smart politician of the era made the biggest blunder in removing Justice Sharani Bandaranayaka, expediting process influenced and advised by another controversial politician/s famous for changing colors for power still powerful and functioning in the same capacity in a new power block taking the new found friend leader on the precipice. His other mistake was the appointment of a dozens of President’s Counsel including junior/s not completed required number of years also guided and advice by the same person/s akin to that of the advisor of Madam Chandrika who accompanied both towards the downfall. Apart from these avoidable mistakes HE Mahinda Rajapaksa’s period had been an excellent era for the Judiciary and legal system substantiated by current world ratings.
History Repeating today on appointments to the Judiciary
There is controversial and conflicting news in the media on the appointment of a High Court Judge from the unofficial Bar of Batticalore allegedly at a request of a political party, to the High Court Judge over the seniority of 68 District Judges which is the second controversial appointment of the good governance government with heavy protests from the Bar Association judicial Service Officers Association -the official union of the Judges in Sri Lanka .President, Bar Association, Judicial Officers Association, TNA ,and media are giving conflicting statements on the decision taken by the President using his Executive powers under the Constitution on this controversial appointment. First controversial is the re-appointment of the Lady High Court Judge just after her retirement who heard the case against the Finance Minister Ravi Karunaniyaka on charges of fraud amounting to millions of US dollars of Raja Rajaratnam- the disgraced Sri Lankan billionaire accused of having LTTE connections and fraud and money laundering charges in USA.. A Magistrate was removed very unusually on representations made by public interest group also allegedly pausing in a photograph with the former President. Many lawyers, judges and state officers pause for photographs with the President and Prime Minister in public functions and, wedding ceremonies which is a common happing.. Appointment of the Prime Minister while the previous appointment in office in the minority government is unconstitutional and illegal. A mere request from the previous Prime Minister could have solved this constitutional calamity led to a calamity. The way the previous Chief Justice Mohan Peiris was removed by a mere letter from a secretary is un constitutional and undermines the Judiciary which could have averted by requesting the previous CJ to move out the way Justice Bandarayaka was swiftly moved out as a political maneuvering. These are worrying issues that undermines the independence of the judges arises suspicions of the citizen on the freedom and impartiality of the judiciary. Repeating the history too is a worrying phenomenon when people clamor for improvements on the judicial system empowers and independence of the Judiciary. In the constitution of Sri Lanka power derives from “people” and exercised by Parliament through Courts, tribunals and institutions created except the privileges and immunities exercised directly by the Parliament. Rights of the People are enforced through the Supreme Court, Court of Appeal. High Courts, other courts, tribunals and judicial and semi judicial institutions created and established by the Parliament.
Long Way to achieve enjoyment of Independence of Judiciary in Sri Lanka
There is a long way for Sri Lanka Judges and Judiciary to be fireless, impartial and independent from political and other pressure by political and financial considerations, unless drastic changes are made towards this goal. Indian Judiciary has sent strong messages by convicting previous Chief Minister of and the Chief Minister to be in Tamil Nadu on allegation of bribery and corruption. Information on the personal, judicial and academic conduct of the Sri Lankan Judiciary which is in the public domain is unsatisfactory and worrying, which undermines the independence and the integrity of the Judges and the Judiciary. General perception of the citizen is that the Judiciary and Judges could be influence and bought over which is never heard of before. With the increase of the crime rate, complexity of the law and judicial system coupled with the unresolvable laws delays and increase of drugs drug mafia and crime mafia, and all kinds of vices taking place freely with no control, confirms the views of the citizen as all are threads of the same complicated system of the civil and criminal network connected to the inefficient and ineffectual legal and judicial system, where the general opinion is fast spreading that money and power will keep the crime dowers free without trouble. How many judges are competent and educated to understand finest points of complicated legal analysis and issues in the higher courts and how many write quality judgments are known to the members of the legal profession facing enormous problems before incomplete inefficient and uneducated judges. Are judges trained properly and is there a proper institution to train judges’is in other countries. These are matters directly relevant to the independence of the judiciary as the impact of the judiciary depends on the quality of the members of the judiciary. Unfortunately the answer is negative to many issues raised. It is the duty of the Executive, legislature and the judiciary to concentrate on the independence, education and quality of judges with proper recruitment, training, and procedure giving priority to provide qualified and quality judges to the society.
The writer is a former a Secretary of the Bar Association and former Sri Lankan Ambassador to UAE and Israel. The views expressed are that of the author taking the responsibility for the contents.