Abberrant actions cannot cure the Sri Lankan judiciary of its ills

• Sunday, April 05, 2015

Even close to one and a half decades later, it is heartening to see the virulent politicisation of the Sri Lankan Supreme Court from the year 2000 amidst the bypassing of honourable judges of the Court under the Presidencies of Chandrika Kumaratunga and Mahinda Rajapaksa being publicly recognised by the Bar.

Contrasts between then and now
One may indeed be forgiven for a somewhat acerbic reminder that such recognition comes better late than never, even as we chuckle from a merciful distance at the hypocrisy that predominates.

No matter that some of these very worthies now lustily singing the praises of an independent judiciary did not dare to speak out openly at that time, being either too scared or too reluctant to court the negative impact on their legal practice and pockets. Indeed, as I recall, a fair number of these individuals had to be virtually dragged to discussions on the need to stand tall against internal and external subversion of the judiciary.

Others kept quiet when the Kumaratunga Presidency ceaselessly interfered with an independent judiciary but became suddenly strident in their ‘intellectual’ disquiet after Kumaratunga left office. Yet others declined to publicly venture out affirming their support for besieged judges, one instance being their refusal to sign a public appeal requesting the late Justice Mark Fernando not to retire prematurely from the Court in 2003. Notably, signatories to this appeal went far beyond the legal profession to include prominent academics, professionals and ecclesiastical heads of the Buddhist, Catholic, Anglican and Methodist denominations.

Rendering a ruthlessly honest account
Despite this appeal, Justice Fernando insisted on stepping down. On his own acknowledgement written in a letter to some members of the Bar, it had become impossible for him to serve honourably in judicial office. Indeed, in that atmosphere of extreme intimidation coupled with extreme cowardice on the part of the Bar, the singular isolation of judges whose only crime had been to serve honourably in office was marked.

As the Human Rights Institute of the International Bar Association, (IBAHRI) summed up after conducting two fact-finding missions to Sri Lanka in 2005 and 2009, “the judiciary is currently vulnerable to two forms of political influence: from the Government and from the Chief Justice himself. The nature and degree of influence oscillates between the two and depends on the relationship between them at the time…” (2009 Report of the IBA)

This predicament was not limited to judges of distinction in Sri Lanka’s highest Court but ranked, among their number, conscientious judicial officers of the High Court and subordinate courts. In due time, a ruthlessly honest account has to be rendered of these unfortunate happenings which resulted in the country’s entire judicial system being compromised and degraded to the extent that a sitting Chief Justice was thrown out of office under the Rajapaksa Presidency. Indeed, the steps taken to correct this injustice were themselves not free from controversy. And while there are some who believe that the subversion of the system was corrected through President Sirisena’s executive order declaring a Chief Justice of Sri Lanka ‘as if he had never been’ after the January 8 electoral win, one must beg to differ .

19th Amendment’s clauses far from satisfactory
In this context, the proposed 19th Amendment’s revisions to redress concerns relating to the independence of the judiciary fall far short of their objectives. Merely providing for the Constitutional Council to obtain the views of the Chief Justice, the Justice Minister, the Attorney General and the President of the Bar in making recommendations in regard to the appointment of judges of the Court of Appeal and Supreme Court does not suffice.

There was an era not so long ago where all these individuals holding these positions would have happily concurred with the decision of the executive in this regard. It is an unforgivable fallacy to believe that such an era is now behind us with the dawning of the ‘Maithri’ yugaya.

Similarly, the safeguards proposed by the 19th Amendment in regard to the accountability and transparency of the Judicial Service Commission (JSC) are far from satisfactory. All that it purports to do is to provide a place in the JSC for a member who has experience as a judge of a Court of First Instance. The superficiality of these amendments is astounding. Our disastrous past experiences appear not to teach us to be more careful in these constitutional drafting exercises even now.

Ensuring the accountability of the JSC

Where the JSC is concerned, it was precisely during the greatest breakdown in judicial integrity we had witnessed that jurists of the Geneva-based United Nations Human Rights Committee were deluged, to their consternation, by appeals filed by Sri Lankan judges urging that they be treated fairly in judicial service.

In one such instance concerning the unfair dismissal of a District Court judge where the Committee found there to be a breach of the duty of fairness, it was specifically observed that Rule 18 of the JSC rules was unjustifiable. This Rule provided that “copies of reports or reasons for findings relating to the inquiry or of confidential office orders or minutes, will not, however, be issued.”

The Committee noted that there is no justification in the JSC rules themselves or any explanations offered by the JSC for the failure to provide judicial officers with the reasoning in findings made against them. In this particular instance, the only reasoning provided to the judge who had been summarily dismissed was a dismissal letter merely stating that he had been found guilty of the charges against him, without any explanation (Soratha Bandaranayake vs Sri Lanka, 2008).

Recognising the enormity of the challenge
It is good that the wild jubilation prevalent for a split second after the January electoral win has yielded to soberer thoughts. More tempered reflections on the measures necessary to restore the independence of Sri Lanka’s judiciary are needed. Systemic failures in regard to the independence of Sri Lanka’s judiciary cannot be corrected by aberrant actions, engaged in even with the best of intentions.