In these years, we have seen judges being summarily removed due to operation of law (as happened when the 1978 Constitution came into operation); houses of judges being stoned (after the Vivienne Goonewardene case); independent judges being overlooked for higher office (Justices Mark Fernando, Sriskandarajah, among others) and questionable appointments being made to the judiciary by the executive.
During the same period, we have had judges, albeit a very few, being hauled up before the criminal courts on charges including bribery, attempted murder and grievous hurt.
Despite these issues, a recent survey revealed that the public at large has greater confidence in the judiciary than any other institution in the country. Consequently, there is great need for the judiciary to be protected to maintain the confidence that people have in the institution, despite the many shortcomings that may exist. Protection for the judiciary is needed not only from outside influences and pressures, but also from the threats and challenges that occur from within.
Much has been spoken of the independence of the judiciary. Constitutional provisions safeguarding the independence of the judiciary are many. Safeguards have been introduced to the process of appointments of senior judges by the 19th Amendment to the Constitution. Notwithstanding the crude manner in which the impeachment of Dr Bandaranayake was pushed through, removal of senior judges remain difficult. These judges hold office during “good behaviour” and removal requires the participation of the Parliament and the President and, as was seen, is risky business. Judges’ salaries and allowances are protected and cannot be diminished; interference with the judiciary is a punishable offense; judges have a degree of immunity from suit for what they do in their judicial capacity; an independent Judicial Service Commission exclusively comprising of Supreme Court judges headed by the Chief Justice oversees and supervises the minor judiciary in respect of appointments, promotions, transfers, disciplinary control and dismissals.
In addition to all these safeguards, our courts have varying powers to deal with persons for Contempt of Court to prevent unwarranted attacks on the authority of the judiciary and to ensure the sanctity of its orders. The Court of Appeal and Supreme Court are vested with a vast and sometimes untrammeled power in respect of Contempt of Court, the exercise of which has been subject to criticism such as the manner in which the Tony Fernando case was dealt with.
President Maithripala Sirisena’s assertion that judges no longer need to fear calls from Temple Trees, signifies that, in previous times, there indeed have been efforts to bring pressure to bear on the judiciary. If there has, in the past, been an onslaught on the independence of the judiciary, judges who succumbed to such pressure also share part of the blame for failing to be assertive and independent, despite adequate legal safeguards.
Sacred duty and dissenting judgements
It must be understood that it is not only a right but also a sacred duty of judges to be independent and impartial, without succumbing to pressures that come from different segments. Not only politicians and the state impinge on judicial independence. Very often, the onslaught on judicial independence comes from within the system from friends, family and other elements and sometimes perhaps even from their own brethren.
One significant example of lack of judicial independence and assertiveness is the manner in which dissenting judgments have dwindled in our superior courts. Prior to 1999, there have been many dissenting judgments. Even when they did not dissent, in quite a few cases judges would write separate judgments setting out different reasoning for the same conclusion. Judges did not fear to dissent even with the Chief Justice. In one instance, relating to a writ against a Special Presidential Commission, the dissenting judgment was by the Chief Justice GPSde Silva, with two other brother judges disagreeing with him comprising of the majority.
However, after the ascension of Chief Justice Sarath N Silva, dissent, whether on the bench or outside, became less tolerated. Dissenting judges were considered as heretics and very few dared to disagree in public, even as they privately expressed their disagreement and displeasure with both the substantive decisions and the procedure adopted. The presiding judge would often hold sway, with the other judges merely providing the quorum. Today, this same complaint is made in respect of the Civil Appellate High Courts where two judges hear cases.
Transparency, or lack thereof
As much as creating a climate for an independent judiciary, an equal or even greater need has arisen for judicial accountability. Like all others in public service, there must be a process of accountability for the actions of the judiciary. Creating judicial independence from within, requires a greater degree of accountability on the part of the entire judiciary and the institutions relating to the judiciary, including the Judicial Service Commission. The JSC is the body vested with the power to appoint, promote, transfer, dismiss and exercise disciplinary control over judicial officers, which means Magistrates and District Judges. Despite the Supreme Court insisting that there must be a transparent process in recruiting public officers, the recruitment process in respect of the minor judiciary has woefully lacked transparency and openness. There is a similar lack of transparency in recruitment at the Attorney General’s Department.
Judges of the minor judiciary are initially appointed on the basis of a written examination and interview process. Neither the results of the written examination nor those of the interview process are made public. The manner in which the interview process is conducted and the marks being given are not made public, although other recruitment to the public service require openness and transparency.
At present there is no transparent and open scheme of recruitment, promotion or transfers for judges. Neither the Judges in the minor judiciary nor in the higher judiciary have a disciplinary code or a code of ethics and etiquette. A code of ethics will enable the public to understand standards of conduct required or expected from judges. On the other hand, judges themselves, especially younger judges, will have a guideline of what is expected from them and what they should avoid. It will set standards for judges in the years to come.
Disciplinary actions against judges of the minor judiciary often depend on the Chief Justice of the day and his or her attitude towards the individual judge and the disciplinary process. Disciplinary action against Superior Court Judges are almost entirely non existent, apart from the difficult impeachment process.
Other independent commissions are required to submit an annual report to Parliament and are, in that sense, somewhat accountable. Not so, the JSC. There is no mechanism for the JSC or the judiciary as a whole to be adequately accountable for their performance.
The JSC has strived to provide training to judges and there have been significant strides in training, both at the Judges Institute and abroad, and there have been moves to set up schemes of transfer. Last year, there was discussion on having a code of conduct for judges. In the minor judiciary, judges do have to send returns of work done, but there is no mechanism to review the quality of their work, their efficiency or their performance of judges. This is the same if not worse in the case of High Courts upwards. Promotions to higher office are not necessarily based on the performance of these judicial officers,but are almost entirely based on seniority.
An unpredictable system
Another serious complaint is the lack of consistency in the decision making process. A classic example of this inconsistency is the manner in which the Supreme Court determined the term of a President who calls for early elections after four years in office. In 2005, a five judge bench of the Supreme Court, headed by Sarath N Silva CJ, cut short President Chandrika Bandaranaike Kumaratunge’s term, holding that her term commenced the day the results were declared. This paved the way for the election in 2005 of President Mahinda Rajapakse. Just over four years later, when Mahinda Rajapakse himself called for early Presidential Elections and won that election, a seven judge bench of the Court, headed by Asoka de Silva CJ, held that the term of the President does not begin on the day the results were declared but on the day corresponding to the day when he first assumed office. Whatever the merits and demerits of the two decisions, how does one explain to the public these two diametrically opposed decisions given within five years?
Judicial inconsistency is most significant and glaring in the area of bail and sentencing in criminal cases. Bail is almost entirely dependent on the individual views of the judge concerned. Despite the guidelines in the Bail Act, certain judges adopt a tougher stance as to bail than others who might adopt a more reasonable or liberal stance. For an identical matter, one judge may release the suspect on personal bail, while another judge may order surety or cash bail and yet another judge may remand the suspect. These may lead to even allegation of favouritism or bias and often leaves the litigant at the mercy of an unpredictable system. Similar inconsistencies are found in the sentencing process, there being a lack of sentencing guidelines or policy. Here, again, in recent times, two judgments of the Court of Appeal have strived to bring some clarity to the sentencing process.
New measures on judicial ethics and conduct, financial disclosure,streamlining the process of appointments and promotions of judges, enhanced training, an independent and transparent investigations process into allegations against misconduct of Judges, as well as greater openness and acceptance of criticism of judicial decisions, will enhance the accountability of our judiciary and, in the long term, it will strengthen the judiciary and those holders of office who are worthy to do so.
The writer is a senior lawyer and a board member of the Lakshman Kadirgamar Institute.
This article first appeared in The Sunday Leader, a leading Sri Lankan publication. Click here to go to the original.