[Opinion]

Sri Lanka and independence of judiciary

by Sarath WIJESINGHE

Judges should be politically insulated and free to make decisions Judges are charged with the ultimate decision over life, future properties, rights and duties of the citizen.

Citizens have the highest expectations on this right as guaranteed by the Supreme Law of the country. Therefore States give special empasis for the judicial independence. Independence should be real and not merely apparent.

Judicial independence or independence of the judiciary is the principle that the Judiciary should be politically insulated from legislature and executive authority. Courts should not be influenced by any external power.

This criteria alone is not sufficient for the judiciary to be independent.

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.

Impartial

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 honourable 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 centre 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.

Commonwealth

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, 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. Commonwealth countries including UK, India follow the same procedures and traditions in the appointments and conduct of 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.

Privileges

The King’s power is gradually diminished and the Act of Settlement 1701 established the tenure for judges under Parliament renewed them. We follow the British convention that Parliament does not comment on the cases which are before the courts based on the principle of parliamentary privileges. Judiciary is one of the several branches of the government empowered to review certain acts of the other branches based on incompetency. Human Rights Convention too has been guaranteed by General Assembly Resolution 40/32 of 29/11/1985 and Resolution 40/146 of 13/12/1981. The judges appointed should be competent, impartial, and the selection should have been made solely on integrity, ability, appropriate training, and qualification in law, Character and temperament. “Character and Temperament” is given special emphasis on the selection of Judges especially to the higher 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. Parliament may replace, abolish, amend the duties and jurisdiction of procedure of such establishments and institutions. This reiterates that the Parliament is supreme and sovereign. Supreme Court and Court of Appeal are superior courts of record which are empowered with all the power including “contempt of court” which is one of the most discussed topics in the current judicial process. The sittings of every court should be public, unless the court excludes parties due to valid reasons. Chief Justice, Supreme Court Judges, Court of Appeal judges and High Court Judges are appointed by the President.

Cumbersome

Every judge appointed by the President holds office during good behaviour and their removal is complicated and cumbersome. President can make an order after the approval of the parliament on the removal of the Judges.

Salaries and the pension of the Judges of the Supreme Court and Court of Appeal cannot be reduced after they are appointed. These are some of the constitutional safeguards provided for the independence of the Judiciary, apart from the traditional and conventional safeguards.

17th amendment to the Constitution was presented to the Parliament by the JVP and the UNP with good intentions. (Vide article which deals with the executive, legislature and the judiciary and peaceful co-existence - 18th May 2008 Sunday Observer by the author on 13th and 17th amendments) Proceedings in the parliament on the debate show how quickly and with no proper study and preparations the legislators hurriedly brought up this important piece of legislation which is now at a grinding halt on the implementation process. Even in the procedure laid in the 17th amendment the ultimate authority in the appointment of judges including the appointment of the Chief Justice is done by the President. The judicial appointments made by President Rajapaksa since his assumption of the “Trusteeship of the Nation” are excellent. All the appointments to the Court of Appeal and the Supreme Court have been made after carefully scrutinizing the merits, seniority, experience, ability, and the character.

His predecessors have not been fair and transparent in making these crucial appointments which has 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) as the Chief Justice and new Judges under the New Constitution. Many judges lost seniority and the tenure of office but they were helpless as the government then was so powerful and no protests or resistance was shown. Though he became very close to the President he had to go through difficulties which led to unfortunate incidents and early retirement.

In making this particular appointment the then President Jayewardene overlooked the seniority of Justice Wanasundara - an able, and respected and the most senior Supreme Court Judge at that time. President Chandrika Kumaratunga too did the same by overlooking Justice, late Mark Fernando - again the senior most at the time. Nation can safely expect President Rajapaksa to make the best appointment to the Head of the Judiciary at this crucial and decisive juncture in our history. 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.

Menace

Laws delays are a worldwide issue where the Executive and Judiciary in any country is sensitive to and careful about. Other countries have brought in checks and balances and somewhat successful in combating this menace. In Sri Lanka there are cases running into decades- especially the partition, civil and land-related cases. Judges, Court staff, Lawyers and the other officers such as Surveyors, Valuers, Prosecutors including Attorney General’s Department and other officers assisting the judiciary are to be made parties to combat this issue to which most court systems have given prominence. Legal Education too is directly under the Chief Justice and the Supreme Court.

Ability

His Excellency has an enormous task to fulfil in the next few days in appointing the new Chief Justice. President Rajapaksa is an experienced and a senior lawyer, who has made excellent appointments in the Judiciary and other sectors previously. His appointment of the Defence Secretary and commanders made an end to the war engulfed the nation for three decades, and proved his ability to select the best for the Job. We wish the President and the New Chief Justice success and pledge support in the endeavour for a just and prosperous peaceful society.

“Not by passing arbitrary judgements does a man becomes 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 Dhamma.

“One is called noble because he is harmless towards all living beings” - Dhammapada

The writer is a Solicitor in England and Wales and Chair SAARC study centre in the United Kingdom. Former Secretary, Bar Association of Sri Lanka - [email protected]