Independence of the judiciary – some points to mull over

| by Dr. Ruwantissa Abeyratne

( January 15, 2013, Montreal, Sri Lanka Guardian) Whichever way one might look at it, the noble concept of independence of the judiciary is about the unhampered right of a person to expect and obtain justice.  It is about protecting human security and rights.  Of course, to achieve that, there has to be a judiciary that is not interfered with, and which remains totally independent from outside influences. Professor Ruti G. Teitel, Ernst C. Stiefel Professor of Comparative Law at New York Law School, in her recently released book Humanity’s Law (Oxford University Press: 2011) offers  the compelling thought that the central transformation of the post Cold War occurred through a normative shift in the international legal order –  from prioritizing State security to protecting human security.  Obviously, this security has to be guaranteed through the just enforcement of law and order and the proper administration of justice.
National Perspectives
The late Dr. Joseph A. L. Cooray, a distinguished jurist, stated in his seminal work Constitutional and Administrative Law of Sri Lanka (Hansa Publishers: 1973):  “For over two thousand years of Sri Lanka’s long history the Courts of Law have occupied a unique place in the Island’s system of government.  One of the dominant characteristics of the ancient Sinhalese kingdom, which existed unbroken until the British occupation of Kandy in 1815, was its hierarchical system of judicature.  Under that system the Maha Naduwa or the Great Court not only had original jurisdiction but also acted in an advisory capacity to the king”.
Dr. Cooray  went on to say: “the independence and impartiality of the Judiciary is essential for the existence of a democratic system under the Rule of Law.  This right cannot exist in any appreciable measure without freedom of meeting and of discussion.  On the guarantee of these and other similar rights of the citizen depends the effectiveness by government of opinion.  The extent to which these rights are safe at any time against executive encroachment    and abuse rests on the proper administration of justice and an independent judiciary.  The maintenance of the independence of the judges and of the quality of administration of justice requires that adequate provision is made in the law and the Constitution in order to ensure it”.
Former President J.R. Jayawardene once said at a debate in the Constituent Assembly in his then capacity as a Member of Parliament: “We know that ultimately, whatever rules and words you may put into a Constitution, the working of it lies with the men and women who work it.  You may have all the precautions to make the judiciary independent, but unless the men who man the judiciary are men of courage, men of wisdom, the Judiciary will never be independent”.
Independence of the judiciary is a direct result of what lawyers call the Doctrine of Separation of Powers where, in a democratic State, three distinct institutions: the Legislature (Parliament), the Judiciary (Courts) and the Executive (Civil Service) are separate and mutually exclusive.  According to this principle, no single person or body could be in more than one of these three areas.  In particular, judicial and legislative functions are scrupulously kept separate in a democratic State.  Montesquieu, the father of the Rule of Law Doctrine considered despotism, in particular, as a standing danger for any government not already despotic, and argued that it could best be prevented by a system in which different bodies exercised legislative, executive, and judicial power, and in which all those bodies were bound by the rule of law.  Montesquieu said: “where the power of judging joined with the legislative, the life and liberty of the subjects would be exposed to arbitrary control, for the judge would be the legislator”.
International Perspectives
Often, the concept of independence of the judiciary is treated in a purely national context, as though it is exclusively within the purview of the State concerned.  It is.  However, not many would know that the international community has joined hands in globally recognizing the need for unhampered independence of the judiciary.
The Resolution “Basic Principles on the Independence of the Judiciary”  adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Milan from 26 August to 6 September 1985, which was endorsed  by the United Nations General Assembly Resolutions 40/32 of November 1985 and 40/146 of 13 December 1985 recognized the basic principles that:  a)   through the Charter of the United Nations,  the peoples of the world have affirmed, inter alia, their determination to establish conditions under which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination; b)  the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law; and  c) the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay.
The Resolution recognized that the above notwithstanding,  there still existed frequently a gap between the vision underlying those principles and the actual situation and the organization and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality. It also states that rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with the above principles.
The underlying thrust of the Resolution is that  judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens, and  that consideration be first given to the role of judges in relation to the system of justice and to the importance of their selection, training and conduct.  Some of the following conditions laid down by the Resolution are:
1.      The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2.      The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3.      The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4.      There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5.       Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6.      The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7.       It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
8.       Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.
9.      The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.
10.   A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
11.  Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
12.  All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
13.   Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

Conclusion
There are two cardinal principles enunciated by the Resolution. The first is that the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats of interferences, direct of indirect, from any quarter or for any reason. The second principle is that there shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
A stark fact jumps out of this discussion, which is that the denial of justice, whether it be by justice delayed or justice maladministered, is the most heinous crime a State can commit against a citizen.  Justice is about helping others in peril or need and looking after them.   As the father of international law, the Dutch Jurist Hugo Grotius said: “every man, as a man, has a right to claim the aid of other men, in necessity.  And every person is obliged to give it to him, if in his power by the laws of humanity”.
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Author: Sri Lanka Guardian

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