'Judges need not be immune from public scrutiny' - Bar Association President Geoffrey Alagaratnam:

by Anurangi Singh

Current President of the Bar Association, President's Counsel Geoffrey Alagaratnam came into the limelight making allegations against the media, claiming that it is irresponsible in its reporting on the Judiciary, and asserting that legal action should be taken against such media organisations.

The Sunday Obsever sat down for a one on one interview with the President of the Bar Association to seek clarifications on his comments, and question on the legal system and its course of development. Mr. Alagaratnam was elected in 2015 as President, Bar Association and his term ends in March 2017.

Q: Your term is almost coming to an end, how do you feel? Do you feel you have accomplished your task? Were you able to reach the goals you set, at the beginning of your term in early 2015?

A: No, I don't feel I have completed my tasks. I hope to put in place some of the mechanisms before I go, i.e. uniformity, consistency and certainty in our operations, make the Bar Association a professional and independent body, and render a bigger service to society. I have dreams, some of which I hope to accomplish, though I don't think I will be able to accomplish everything.

Q In terms of access to justice are you happy with where we stand at the moment?

A: Not quite, if you mean access to justice in respect of legal aid there is a fair amount of work done by the legal aid commission. We have set up our own legal aid unit to cater to those who cannot be catered to by the commission depending on the income brackets. Access to justice is not only helping persons unable to afford access, but also to ensure that everybody can go to an efficient system. They are: law reforms, change in approach, mediation, Alternative Dispute Resolution (ADR), etc. because everything doesn't have to come before a court of law.

Q: Some litigations go on for as long as twenty to thirty years. Surely the purpose dies half way through. What can be done about this?

A: We must understand that it's not a problem that can be solved overnight. In countries like Singapore and Malaysia they've taken years to put their systems in order. Going 'electronic' or embracing technology is not the only solution. Even with e-filing it's the men who do it. What about the capacity of the court staff, the judges, the lawyers who do e-filing, especially, in remote areas. I think we need an attitude change.

I am a supporter of Alternative Dispute Resolution. Arbitration and mediation systems have to be improved, to reduce the time taken on cases by reducing the number of cases.

Then, case law management needs to be improved, how you track cases. I believe the judiciary is not the best authority to track its own cases. You need a different arm to monitor. The Chief Justice should be the policy maker, supervising with a body of people. We need someone like a CEO in the Supreme Court, who need not necessarily be a lawyer , who monitors and keeps records and reports so that clients know where things go wrong. Many cases drag on for years, with unnecessary evidence being led. Shouldn't we isolate and identify the core issues before we start a trial, e.g. with a pre-trial conference to consider the documents, witnesses what needs to be admitted and what needs to be proved.

Q: In terms of a judge's role, do you think it should change from the current adversarial system to a more inquisitorial system, or should a system which is a mixture of both these systems be introduced?

A: I think, hearing a case should be an adversarial system. Maybe in the pre-trial it could be inquisitorial, where judges should be able to question why a case should be continued, if it lacks necessary merit.

And in simple instances where cases are postponed, shouldn't there be a state cost? In countries like Singapore there is a state cost. Even if the judge is sitting, you have to pay a considerable amount if the case is postponed. Even if the lawyer postpones it that amount should be paid by the lawyer and not the litigant. We have to look into methods of shortening the trial procedure and or bringing about a settlement at the very early stage of litigation or before, by referring to ADR.

Now, even in appellate courts much time is taken on arguments. Even when considering leave to appeal (the first stage of hearing) sometimes parties argue for a whole day. In such instances shouldn't there be a system to exert your authority and allow a limited time, maybe about 45 minutes. I have known cases where court sat for 3 or 4 days just to look into the aspect of whether it is a matter worthy of further consideration. Hence time management of cases should be changed.

Q: Do you think our judiciary is corrupt? If so what is the mechanism you suggest to counter it?

A: No, I don't think our judiciary is corrupt. I agree that society has its bad eggs. I wouldn't tarnish the judiciary in such a manner. I believe the judiciary is under immense pressure. Maybe fear was instilled by, not only by the last government but many political parties too are at fault, trying to interfere with the Judiciary.

The Judiciary appears to be breathing better now. I am not saying it's a perfect system or a perfect set of judges, but we are hopeful. Much needs to be done to make it more independent, transparent and answerable. We have recommended for example, that the Judicial Service Commission be broad based with members of the Attorney General's department, Bar Association, the Court of Appeal president and perhaps a couple of civil society activists to make it fairly representative.

We have seen in the past Chief Justices controlling the Judicial Service Commission and maybe unfairly punishing members. We should have a system of judicial audit, to gauge the performance of a judge, such as competency, attitude, etc. and, if there is corruption how it should be dealt with. Promotions should be made on seniority, competency and performance. We have recommended a separate Judicial Services Disciplinary and Advisory Board, vested with powers to even discipline Supreme Court judges, but not removing them as that is vested with the President.

Q: About your accusations against the media saying they are irresponsible and are tarnishing the reputation of the judiciary, isn't it the responsibility of the media to bring such issues to the notice of the public? And why would you think that Judges or the Judiciary should be immune from such exposure?

A: I don't think judges should be immune from public scrutiny. Judges should be criticized in the proper manner, if they have written a judgment that is unworthy. But to say a judge took a bribe or was influenced, if it is true there are mechanisms to refer to. You can complain to the Chief Justice, the police or the CID. The CID would then seek permission from the Chief Justice and initiate investigations. It's not a question of attacking one judge. I am not saying that all judges are honest. But, when you go on attacking a couple of judges the public perception is that the entire Judiciary is bad, the entire Judiciary is corrupt, whereby you're losing faith in the whole judicial system. Isn't that bad for democracy? People will say, what's the use of going to courts, as they too are corrupt. So there might be a hasty generalization. Anyone can criticize a judgment, but to say a judge took a bribe or was influenced is not a responsible way of criticizing.

Q: There have been some accusations of a judge's mobile and official phone being tapped? Is this a genuine claim and what actions will be taken against such conduct?

A: There has been criticism that the complaint was made by the lawyer who has appeared for one of the accused. Then some ask, why should the Bar take it up when there is a conflict of interest.

We can't proceed only on that basis as it's only hearsay. If that was the case why hasn't the judge complained to the Chief Justice? Or in the alternative, with the permission of the Chief Justice, report to the CID, and say it is an interference with his public duties. It's not that I disbelieve these statements but we are in a responsible profession. If I appear for a party I can't have a personal interest in the matter, and I cannot take it beyond the case. No first hand information has been received to act on it. In my role as President of Bar Association I cannot be taking on an investigative role.

Q: There is talk among litigants that lawyers in agreement with judges get together with the Judiciary to agree on bail terms or jail terms? Your comments?

A: I am not saying there could not be such incidents, but to act on it, somebody has to complain and stand by it. The very person who influences is not going to say I influenced. The person who is at the receiving end should be able to provide this information. Then we can take it up. Lots of people may be reluctant to expose that there are such incidents. So how do we act? As I said no system has perfect people.

Q: Standardising professionalism within the members of the bar? How do we upgrade our standards in etiquette and conduct?

A: We have to get our systems in order. We need to catch them young. We are churning out about 800 lawyers a year, with limited resources, and may be with insufficient seniors to guide them. Some of the basic things we have to teach them are: ethics, professionalism, dress code, how to speak and conduct oneself, to be transparent and how to quote fees and instruct the client. They are all fundamentals. But none of them are inculcated. At present the Bar is closely working with the Principal of Law College on aspects of legal education and professionalism.

Q: Is that sufficient? Where can people complain of unprofessional or unethical conduct where disciplinary action is needed against such individuals?

A: We are currently looking into it. At the moment our disciplinary procedure doesn't have enough teeth. In other countries disciplinary procedures are controlled by the Bar, which can suspend its members and even disenrol them. But in Sri Lanka it is the Supreme Court that disciplines, not us. We can make a recommendation, or inquire into complains. But there are allegations that our panels are slow or are biased towards lawyers. Perhaps the Bar should take a more positive role with a more effective mechanism and speedily deal with the complains. It is not happening now.