The Loosening Of Discipline Within The Judiciary

By AHRC -May 31, 2013 

The District Court Judge of Homagama, Sunil Abeysinghe and his guard Constable were arrested yesterday (May 30, 2013) allegedly while receiving a bribe of Rs. 300,000/= in order to return a favourable judgement to the bribe giver.

Judge Aravinda Perera

Immediately after the illegal removal of Chief Justice Shirani Bandaranayke and the appointment of Mohan Peiris as the CJ, one of the earliest steps taken was the reinstatement of Aravinda Perera who was suspended from service by the Judicial Service Commission after their inquiries into allegations of bribery and corruption. This sent a clear signal of the loosening of discipline within the judiciary. Therefore, the Homagama District Judge being caught allegedly accepting a bribe comes as no surprise. The overall framework of the breakdown of discipline within the judiciary as a result of favouring those who are openly loyal to the Rajapaksa regime has created an environment suitable for the increase of bribery and corruption.

Added to this the new CJ, by his many statements from the bench, is discouraging litigation and encouraging outside court settlements. What is being called ‘justice at the market place’ is now encouraged in Sri Lanka. What this means is the encouragement of litigants to seek the assistance of various authorities in the hope of getting their favour. Litigation on the basis of rights and the reliance on law and legal procedure is now openly discouraged.

Sunil Abyesinghe

Driving the judiciary away from its traditional role as impartial arbiters who base their judgements entirely on the basis of law appears to be the ideological orientation now being pursued under the new administration. The arbitrary transfers of large numbers of judges and the removal of some of the officers of the Judicial Service Commission were moves aimed at bringing about the overall control of judges, not on the basis of judicial norms and standards but on the basis of political loyalties and the willingness to bend rules to suit the political aims of the government.

This overall approach will necessarily increase bribery and corruption and undermine the moral of the judiciary. The causing of such demoralisation is a policy line required to encourage the greater loss of confidence in judicial institutions and the rule of law. Such demoralisation and the people’s loss of faith act in favour of subduing resistance to the government.

In terms of these overall changes some may cynically blame the District Judge of Homagama, not for taking bribes but for getting caught. Perhaps this District Court Judge may also receive pardon in due course despite the fact that at the moment he is in remand custody. Interference with the due process of law being a common feature by now, it will come as no surprise if ways are found to return this judicial officer to the judiciary.

Earlier this week the opposition United National Party declared their aim to replace the present constitutionand some proposals for reforms have been submitted. In discussions on constitutional reform what is required is to deal with the complete derailing of the administration of justice and the rule of law in general. The implementation of a constitution depends on a functioning system of the administration of justice and the confidence that the people have in such systems. Given the level of the collapse of all the public institutions involved in the administration of justice, the making of a workable constitution for Sri Lanka will prove to be a herculean task. One of the hydra-like monsters that need to be beheaded would be corruption at all levels, including corruption in the judiciary itself.

Whether sufficient political will could be harnessed to achieve such comprehensive reforms is the test that will decide the destiny of Sri Lankans.