| by Rajiva Wijesinha
( January 12, 2013 , Colombo, Sri Lanka Guardian) Both this resolution, Mr Speaker, and the manner in which it has been pursued, make very clear the need for radical reform. We have long known that we have an illogical Constitution that confuses all sorts of political principles. Sadly we have not taken seriously the crying need to change it wholesale, not simply engage in piecemeal reforms.
Nowhere is inconsistency more obvious than in the relations between the three traditional branches of government. Underlying this inconsistency is a failure to ensure accountability, despite the claim that power belongs in all instances to the people. The Executive is accountable in that it submits itself to democratic elections every few years, but the period of six years that is prescribed, and the provision, based on Westminster norms, of having an early election, make this accountability less than perfect. And the system of elections we have for the Legislature makes a nonsense of accountability, since that requires a closer relationship between constituencies and their representatives than the preferential vote system makes possible.
With regard to the Judiciary, there is almost no accountability. Over the last year I have tried, in pursuing action on our National Human Rights Action Plan, to suggest that the Judiciary lays down norms with regard to its activities, but replies when received were not positive. The Secretary to the Ministry of Justice got no reply when she suggested that the Chief Justice convene a meeting on sentencing, and the Institute of Human Rights was not allowed to proceed with a training programme on this subject. Given the gross overcrowding in our prisons, the failure of the Judiciary to act as requested is most depressing.
Depressing too is the failure to institute codes of conduct. The report of the PSC suggests, even on the best possible interpretation, indiscretions that should never have been perpetrated. It is true that many have been responsible for such indiscretions, but in the absence of strict guidelines, that are carefully monitored, a culture of propriety is hard to sustain.
I would have hoped that the Judiciary would draw up its own guidelines but, if this does not happen, it will be necessary for Parliament to do this. The judicial power of the people is exercised by Courts set up by Parliament, and therefore it is our responsibility to draw up guidelines for the exercise of such power even while scrupulously refraining from interference in decisions. It is best then if we leave it to the Judiciary to enforce those guidelines, and only ensure careful monitoring through the financial controls exercised by Parliament.
We should therefore institute Judicial Norms through binding rules to
· prevent any judge sitting in judgment in cases in which he or she has any interest (To deal with the Chief Justice buying a flat from Trillium while judging their cases. It is clear she understands this was wrong, inasmuch as she withdrew, immediately after the impeachment resolution, from that Bench)
· remove the absolute power of the Chief Justice to allocate cases, and instead set up a panel consisting of the three most senior judges. No changes should be made except by the panel in consultation with the original bench, and in consultation with the entire Supreme Court if allegations of bias have been made (To deal with the Chief Justice replacing the Bench hearing the Trillium cases with a Bench headed by herself)
· prevent any spouse of a judge accepting office from government except in the case of those already in government service. No judge or spouse of a judge should be offered or accept office from government for five years following the judge’s retirement, except for appointments to mediation boards and such task bound assignments (To deal with the appointment to high positions of Mr Kariyawasam)
· have the Judicial Service Commission appointed either by the Minister of Justice or by a panel of the three of the six most senior Supreme Court judges, with provision for appeals regarding appointments to be addressed to a separate panel of the other three (To deal with allegations of arbitrary actions by the JSC)
· We should also institute internal investigation systems within the Judiciary if judges violate judicial orders (To prevent situations such as occurred when the Chief Justice was given a substantial discount on a purchase from Trillium when there was a Court Order enjoining that the highest possible price be obtained for these).
· We should also institute rules with regard to the Assets and Liabilities Act to
· Ensure immediate remedial action when the Declaration is not make (To avoid situations such as the realization now that the Chief Justice did not submit a Declaration for 2001)
· Redraft the form to ensure that manipulation of assets is detected (To prevent concealment of funds by emptying accounts just before March 31st each year, as is alleged was done by the Chief Justice)
· To allow for random checks on the accuracy of Assets Declarations by an independent body, such as the Auditor General’s Department or the Bribery Commission, though with greater institutional safeguards regarding the independence of those institutions (To prevent accumulation of misleading statements as seems to have been the case with the Chief Justice)
Given what has been reported, it is clear that the ‘moral conduct of an exceptional degree’ expected from a Chief Justice that the Committee believes is necessary was not forthcoming. But of course the high standards enjoined by the Committee are expected also from Parliament, and we need measures to ensure that as well.
In that regard our failure to amend a Standing Order that violates all judicial principles is regrettable. I gather that the Standing Order was created in a tremendous hurry, like the judgments of the Courts recently and the PSC Report itself. This tendency to simply react to a crisis without looking to deal with underlying causes has created tremendous problems for the country in the last fifty years, and I hope very much that we will instead reflect more carefully, both now and in the future, without hasty decisions and institutionalizing ad hoc measures.
At its simplest, the Constitution talks of proved misbehavior being grounds for removal of judges. However the Standing Order that is meant to ‘provide for all matters’ relating to an address for removal of a judge does not mention proof or the need to prove, but talks only of defence and disproof.
It is for this reason that comparison with the position in the United States, or in the Philippines, where the Chief Justice was recently impeached, is misplaced. In the Philippines there was a prosecution, spread over several days, with Senators voting like a jury on what had been placed before them, both by prosecution and defence. Our Standing Order however requires a PSC to investigate and report but makes no mention of the establishment or proving of charges.
Given these flaws in the procedures adopted, it will be difficult to vote for this resolution. The PSC report itself follows the maxim, in discussing the first charge, that ‘the appearance of bias…. is sufficient to taint a decision’. Sadly that maxim was not followed in other instances in the report, which is an inconsistency that further taints the conclusions reached.
This is unfortunate, because an inquiry conducted on the lines of that in the Philippines could very easily have led to similar conclusions. That is why, since one should not condone the actions of the Chief Justice, it is equally difficult to vote against the resolution.
In abstaining on this resolution, Mr Speaker, I can only hope that we move swiftly on the institutional and procedural reforms that this country so urgently needs. I have spoken to Parliamentary officials, and written to you, about convening the Committee to amend Standing Orders, which moved so quickly during the first three months of this Parliament and was then suspended because of a trivial dispute. I trust that we will not allow such personal considerations to stand in the way of the changes that are so badly needed.