Judicial ethics violence is an unpardonable sin

Following article based on the excerpts from the speech the new Chief Justice Priyasath Dep ( writer) delivered at the ceremonial sitting of the Supreme Court to welcome him.


Laws delays are a sensitive and complicated issue discussed in various fora which requires urgent steps to be taken to eliminate delays to restore confidence in the justice delivery system.


by Priyasath Dep

( March 19, 2017, Colombo, Sri Lanka Guardian) In 2011, the Bar warmly welcomed me when I was appointed a judge of the Supreme Court after having served the Attorney General’s Department for more than thirty three years. In my speech I stated that I was conscious of the fact that as a judge of the apex court of the country, I have an honourous task to perform which I consider as a sacred duty. To-day after a lapse of five and half years you are welcoming me as the 45 th Chief Justice of the Country. As the Chief Justice my task is difficult and responsibility is heavy. I seek divine inspiration to perform my duties and I will always act according to my conscience and the law.

The Supreme Court is a hallowed institute which was adorned by persons of eminence who added luster to institute and further enhanced its stature. It is incumbent on the chief justice and other judges to maintain the highest standards expected of judges of the apex court. A Judge owes this duty to society at large.

As judges we are required to observe principles of judicial ethics which are developed into judicial canons. They are considered sacred and akin to a religious belief and the violation of these canons is considered as an unpardonable sin. These principles are Independence, impartiality integrity, propriety, equality, competence and due diligence. Knowledge and diligence are the essential qualities required of judges to perform their duties. These principles are incorporated in the Bangalore Declaration. I will to the best of my ability observe these principles and strive to maintain the highest standards expected of a judge.

Justice Bhagwati in the case of S.P.Gupta v. Union of India (1981 Supp SCC 87 para 27) stressed the importance of the independence of the judiciary in promoting the rule of law. “The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in the armoury of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers”. This is the principle of independence of the judiciary which judges must keep in mind while upholding the Constitution and administering the laws.

Independence of the Judiciary
According to the Commonwealth (Latimer House) Principles “An independent, impartial honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each Commonwealth country.

Judicial accountability
It further stated that “Judges are accountable to the Constitution and to the law which they must apply honestly, independently and with integrity. The principles of judicial accountability and independence underpin public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible government relies”.

To promote rule of law which is essential in a democracy and to maintain independence of the judiciary the legal profession has a vital role to perform.

It is stated that the Judiciaries do not have treasuries or armies. In the words of Hamilton it does not have a sword or a purse. The judiciary has to depend on the executive to enforce its orders and depend on Parliament for allocation of funds. The strength of a judiciary comes from the support of the public.

At this stage it is appropriate to refer to the role of the Bar. In the pre-independence era, lawyers were in the forefront in agitating for constitutional reforms and played a significant role in gaining independence from the British. The Bar plays an important role in promoting the rule of law and protecting human rights and maintaining the independence of the judiciary. There should be a healthy relationship between the bench and the bar for the proper administrative of justice.

Laws delays
Laws delays are a sensitive and complicated issue discussed in various fora which requires urgent steps to be taken to eliminate delays to restore confidence in the justice delivery system.

Laws delays are not a new phenomenon. It existed in the past and presently continues on a larger scale. There should be a balance between the expeditious disposal of cases and ensuring fair trial. Speed has its dangers too and at times results in the miscarriage of justice. But long protracted delays will erode the confidence and trust in the law and the system of courts. Justice delayed is justice denied.

Justice V.R. Krishna Iyer. In his book ‘Law & Life (Universal Law Publishing Company, Delhi, 2008 Edition) at page 44 stated, “Today, in India man lives in the short-run but litigation lives in the long-run. The volume of cases and the alienation of judicial interpretation from ordinary people’s grasp can be abolished if a simplification of Law India is radically and creatively realised. The plurality of appeals provided in our legal system is another source of baffling uncertainties in the law and making finality and certitude in the decision of disputes never possible. Otherwise, what Judge Learned Hand said about U.S. Justice system becomes a riddle of terrible reality in India too. Before you go to court said the great U.S. Jurist, please write a Will because the litigation is not likely to end in your life-time”

Justice V.R. Krishna Iyer in his book LAW & LIFE (supra)in chapter titled ‘THE INDIAN JUDICIAL ODYSSEY – A ‘SIXTY YEAR SAGA OF JUSTICE, JUSTICES AND JUSTICING’ highlighted the weakness in the Indian judicial system thus:

“Arrears of pending cases are astronomical in number, eroding people’s credibility in the Judiciary. Litigation is now a terror and horror, never final, ever perennial, bankrupting both sides, shocking and shaming socio-economic egalite.”

The laws delays, no doubt, erode the confidence and trust in the judicial system. There is a tendency among the affected parties to resort to self-help. In that event no doubt lawlessness and anarchy will prevail. Due to the delays in criminal cases victims are the persons who suffer most. They have to attend courts on numerous occasions and the cases are postponed for various reasons. They continue to suffer due to the flaws in the system which amounts to secondary victimisation.

Remedies for laws delays
Judiciary: There is a need to increase the number of judges and develop the infrastructure by constructing more court houses. There is a backlog of cases in the Supreme Court and in the High Court. There is an urgent need to increase the number of Supreme Court and High Court Judges.

The court management system could be improved using modern technology. Computerisation, office automation and adopting electronic filing system will improve the court management. New methods should be adopted for court and case management. Countries like Singapore and Malaysia were able to reduce the backlog of cases by using modern technology and management systems. The judges should divest the administration functions to registrars or designated officers so that they will have more time for court work. The courts cannot function without an efficient and a competent staff. Supporting staff plays an important role in management of the courts. The quality and the standards of the supporting staff should be improved.

Law Reform: There is a need to amend the laws especially procedural laws for the purpose of simplifying the procedure and expeditious disposal of the cases. Sentencing powers of the Magistrates Court could be increased so that more serious cases otherwise indictable could be tried by a Magistrates Court. This will no doubt prevent the accumulation of cases in the High Courts.

The Ministry of Justice has taken the initiative to update the laws including the procedural laws.

It is to be mentioned that the judges especially in the minor judiciary are working under difficult conditions. Their remuneration is not commensurate with the duties they perform and housing and other facilities are inadequate. Judges should be commended for their performance of their duties satisfactorily under difficult conditions and for their dedication and commitment.I must thank the Honourble Minister of Justice and the secretary for taking steps to improve the facilities for judges and for infrastructural improvements and allocating funds for judicial training.

Already the judiciary has taken several steps to expedite the disposal of cases and directions were given to the judges to have day-to-day hearings. Access to justice is also an important topic to discuss.

Colebrook Cameron reforms 1883 established a western type of courts to administer justice which was alien to the native population. However, this system expanded over the years and firmly established itself. With the implementation of the official language policy from 1956 onwards gradually the language of the original courts became Sinhala and Tamil so that the common man could understand the proceedings in court. New court houses were established in various parts of the country.

People have easy access to courts. However there is a difference between the physical access to courts and the access to justice. Especially lower income groups due to the limited financial resources were unable to have access to justice. Although in the lower courts they are able to have legal representation, when the cases are prolonged they will not be able to continue with the litigation and at times they will have to abandon their cases. Even if they were able to litigate in a lower court, in the Appellate court they will not be able to have legal representation and thereby they are unable to proceed with the appeal.

Therefore, legal aid and assistance is required for the lower income groups to have the access to justice. Access to justice does not mean purely in quantitative sense but be qualitative access to justice. In the developing countries due to limited financial resources allocated to legal aid schemes their role is limited as a significant number of poor litigants are denied legal representation.

Litigation has become costly and prohibitive. Therefore, there is a need to have an effective legal aid scheme by expanding available schemes and also getting the private sector participation is necessary.


Priyasath Dep PC is a Sri Lankan judge and the 45th Chief Justice of Sri Lanka


 

Author: Sri Lanka Guardian

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