Judicial Reform in the 21st Century -From Independence to Accountability 

(Based on a presentation made at the Conference of the Asian Society of International Law on "The Rule of Law and Development Nexus: A New Deal for Asia?" in Bangkok last week.)

by Dr Nihal Jayawickrama-June 6, 2015

In the early 1970s, while still a young lawyer practising in Sri Lanka, I was invited by the new Prime Minister to serve as Permanent Secretary to the Ministry of Justice. She asked me to be, not merely an administrator, but also an innovator. We had a judicial system introduced in the mid-19th century by the British colonial government to serve the needs of a country of two million people. It had remained unchanged, notwithstanding Independence and a ten-fold population increase. The trial rolls in original courts were long. The backlog in the appellate court was enormous. The prisons were overcrowded. Litigation was expensive. And the citizen groped, often for decades, in his search for justice, administered in a language he did not understand, by strange men garbed in scarlet and ermine robes, whose heads were covered in wigs made of white horse-hair. That was the majesty of British justice that we had preserved in its pristine purity. To adapt it to the mid-twentieth century was the challenge that had to be met. It was a challenge that was compounded by the fact that a privileged legal profession comfortably ensconced in the archaic system was quite content to leave it as it was. What was called for was systemic reform. There was not even a whisper that the stakeholders in the justice system were corrupt.

We met that challenge with three new Acts of Parliament that established a new court structure, new civil, criminal and appellate procedures, and unified a two-tier legal profession. The reforms had a dramatic impact, not only on the administration of justice, but also on the life-styles of lawyers and judges. For example, the compulsory requirement of resorting to conciliation prior to the institution of proceedings in court resulted in over 50% of civil disputes being settled without the intervention of lawyers. Unfortunately the reform package had a relatively short life span. Three years later, following a general election in which the legal profession played an active role, and a change of government, the reform legislation almost in its entirety was repealed and the hundred year-old 19th century systems were restored.

Corruption in the Judiciary

Let me fast forward to 1997 when, after almost two decades in academia, I came down from the ivory towers to work at Transparency International in Berlin. That non-governmental organization was then in its formative years, and one of its principal objectives was to identify sectors that were vulnerable to corruption, and then to formulate strategies to combat such corruption. It was almost at the turn of the century that credible evidence began to surface of corruption in judicial systems in many countries across the continents; people who participated in public perception surveys considered the judiciary to be only somewhat less corrupt that the police. Litigants who responded in service delivery surveys claimed to have paid bribes to court officials, judges, and even to the opponents’ lawyers. At or about that time several reports were published in which senior judges admitted the prevalence of corruption in their judicial systems. A presidential commission of inquiry into corruption in an African country reported that corruption in the judiciary was so widespread that the ordinary citizen had no faith in the judicial system, with many believing that justice was only for those with money. That report documented numerous proved instances of personal secretaries, typists, court clerks, prosecutors, and magistrates soliciting or accepting bribes. In my own country, a national survey of court users and other stakeholders found that corruption was rampant in the judicial system, and that most judges were aware of its occurrence, and even identified at least five of their colleagues as bribe takers. It was a notorious fact that many a litigant or accused person found it more economical to secure the disappearance of a case record or the absence of a witness than continue to retain counsel for prolonged periods. The phenomenon of judicial corruption had finally arrived.

Undue influence on the Judiciary

Corruption in the judiciary is not limited to conventional bribery. An insidious and equally damaging form of corruption arises from the interaction between the judiciary and the executive, and from the relationship between the judiciary and the legal profession. For example, the political patronage through which a judge acquires his office, a promotion, an extension of service, preferential treatment, or the promise of employment after retirement, can give rise to corruption if and when the executive makes demands on such judge. Similarly, when a family member regularly appears before a judge, or when a judge selectively ignores sentencing guidelines in cases where particular counsel appear, the conduct of the judge gives rise to the suspicion of corruption. So does a high rate of decisions in favour of the executive. Indeed, frequent socializing with particular members of the legal profession, the executive or the legislature, or with litigants or potential litigants, almost certainly raises, in the minds of others, the suspicion that the judge is susceptible to undue influence in the discharge of his duties.

However wrong these public perceptions might have been, there was little doubt that in many countries, the people were losing confidence in their judicial systems. They were frustrated by the failure of the authorities to address the issues that had arisen - the cost of justice; the cumbersome and daunting procedures involved in going to court; the inevitable postponements to accommodate lawyers who needed to be in other courts at the same time. Many saw these as indicators of judicial systems in a perpetual state of crisis. They also saw them as indicators of the prevalence of corruption. In some jurisdictions, they even took the law into their own hands. In Venezuela, for instance, angry citizens took to lynching alleged murderers, rapists and even car-thieves on nearly a weekly basis somewhere in the country. The police recorded an average of 21 murders a day, comparable to casualties in a nation at war.

Judicial Independence

For a very long time it had been thought that independence was the single fundamental requirement for a national judiciary. That independence was secured when the judges were provided with certain constitutional guarantees - security of tenure, non-removability except for proved misbehaviour or incapacity, non-reduction of salaries, and immunity from being sued by dissatisfied litigants. 

(Continued next week)