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| Friday, 20 September 2002 |
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A work of encyclopedic compass Judicial Conduct Ethics and Responsibilities Review by Justice J.F.A. Soza, Director Judges' Institute, Retired Judge of the Supreme Court Dr. A.R.B. Amerasinghe's latest treatise on "Judicial Conduct Ethics and Responsibilities" is a truly monumental work which will rank as a classic on the subject. It is remarkable as well for the erudite scholarship that pervades its pages as for the wealth and amplitude of its illustrative material. It is an outstanding pioneering research study wherein the author makes an illuminating survey of the paradigms of judicial ethics culled from a vast array of source material. The book is arranged in three parts. Part 1 has six chapters carrying a critical evaluation of the various facets of judicial conduct, ethnics and responsibilities. Part 2 is rightly headed "Cautionary Tales" and chronicles the sad stories of the indiscretions and delinquencies of judges. These portraits serve as a red alert to the judges of today and the judges of the future. Part 3 is a collection of appendices reproducing relevant provisions of our Constitution, the basic principles of the U.N. on the independence of the judiciary and judicial codes prepared by men of eminence and distinguished institutions in law regimes worldwide. The first chapter of Part 1 deals with the vocation of a judge. The analysis ranges over a broad spectrum. Judges have been compared to priests and courts to temples. The comparison may not be altogether happy but there is no denying that when a judge eneters judicial office he enters upon a sacred calling and takes upon himself a sacred trusteeship. On assumption of judicial office a judge should change his lifestyle. He must remember he has a pivotal role to play in the service of the community. He belongs to an "elite of service". He is accountable to his judicial conscience. But he must also be alive to the mores of the day and focus on the value needs of a society plagued at present by institutional decadence and a cult of violence. In his conduct he must adopt a low profile and avoid excessively conspicuous conduct. But this does not mean that he must go into monastic isolation. The chapter pitches its standards at a very high level and what is stated is buttressed by wide ranging references assembled by a selective exercise characterised by good judgement and sagacious discernment. Chapter 2 is devoted to the subject of public confidence. The concepts underlying this aspect of the judicial function are well reasoned out. It is the right of every citizen to be tried by judges who are impartial, independent and committed to preserve the integrity of the judicial process. The judiciary has no army or police force to carry out its mandates or compel obedience to its decrees. It has no control over the purse strings of government. The strength of the judiciary stems from public confidence. Eternal vigilance is the price the judges have to pay to prevent erosion of public confidence in the judicial process. Judges no longer live in ivory towers insulated from the attentions of their fellow men. The fierce glare of publicity is focused on the judges. Only the highest standards of judicial conduct and a lifestyle beyond the slightest reproach - like Caesar's wife beyond suspicion, will earn for the judge the confidence of the public. By and large the judiciary has won public confidence but blemishes keep occurring with disconcerting regularity. No doubt when a judge accepts judicial office he does not abdicate humanity. The great tides and currents which engulf the rest of society do not turn aside in their course and pass the judges by. There is however no room for complacency. The judge and even his family members must take every precaution to see that they do not get involved in the political cross-currents of the day and misdemeanours that may impinge on the judge's reputation. However judges must not be insensitive to the feel of the nation's pulse as day in and day out problems of the public of all hues and colours keep pouring into the courts clamouring for justice and for the enforcement of the rule of law as against the rule of arbitrariness and force. This is the message of this chapter which is enlivened by apt quotations and enriched by new perspectives and noble perceptions. Chapter 3 is on the subject of "Justice According to Law". Here again the author takes his inquiry over a vast range of sources. The parameters of liberal judicial interpretation are discussed with admirable lucidity and legal acumen. Value judgements in which extra legal considerations may loom large are the need of the hour in the field of constitutional adjudication. A judiciary that is independent of the electorate and its representatives necessarily needs to preserve the democratic values of society. A judge's personal views on social or political philosophies have no relevance. His interpretations must be in terms of the law. Judicial integrity is consonant with judicial activism and a progressive and even reformist interpretation of the relevant law if founded on sound reasoning. In the lower courts the law must be ascertained in strict accordance with the statutes, principles of applicable law and decisions of courts higher in the curial hierarchy. In the appellate court at the apex of the judicial hierarchy the judicial method allows for the development of legal principles subject to the limitation that the Rubicon separating the judiciary from the legislature must not be crossed. Chapter 4 is on the "Freedom of Speech and the Judge". Here again the author urges the desirability of restraint in judicial pronouncements. Justice is not a cloistered virtue and the right to public scrutiny is an essential part of the judicial system. Restraint in language is the hallmark of a good judge. In the contemporary legal scene the landmark judgements on freedom of speech handed down by Dr. Amerasinghe when he was in the Supreme Court, apart from adding lustre to our legal literature and refining our concepts of the freedom of speech stand as a bastian against invasion from any quarter. Yet the judge must remember that the freedoms granted by the constitutional safeguards protecting freedom of speech are no licence for unbridled and unbecoming language. The litigant on the receiving end is helpless and harsh judicial pronouncements will remain a lasting stigma on his reputation. On the other hand judges themselves are helpless when they become targets of unfair and sometimes even abusive criticism. Here recourse to contempt proceedings may be tempting but this is a dangerous weapon in the armoury of remedies open to the judge. Judicial power is great but full of pitfalls and dangers and should be sparingly used - always in the interests of the administration of justice and never to bolster the judge's own arrogant sense of self-importance. Shakespeare's admonition is cited by the author and is well worth remembering - "O! it is excellent Chapter 5 carries an extensive discussion on "Bias or Prejudice". It is fundamental that in the exercise of the judicial function there is no room for bias or prejudice. The fact alone that this chapter has as many as one thousand one hundred and eighty seven references is testimony to the prodigious industry that has gone into the compilation of this chapter. There are anecdotes and examples some of which are grim tales of judicial aberrations and even some shocking instances of depraved and immoral judicial behaviour. These serve as lessons particularly to sitting judges. The cautions given cover a multitude of situations when the judge should disqualify himself from hearing a case. It need hardly be emphasised that he cannot be judge in his own cause. The judge must not only be impartial but he must also appear to be so. Controversial perceptions of different judges on the question of bias are subjected to careful analysis by the author. The reasoning as is to be expected is impeccable and cogent and the principles that should be applied are formulated with meticulous care and precision. There are innumerable illustrations which pinpoint the precepts that the judge should adopt and follow. The appearance of possible bias survives as a test of disqualification to hear a case. Yet the law must strike a proper balance between protecting confidence in impartial decision-making and discouraging fanciful and unmeritorius allegations of bias. But this is not to be achieved by disregarding the hallowed principle that justice must be seen to be done. The various nuances in the tests to be applied are discussed with admirable clarity. Justice must be administered without fear or favour, affection or ill-will, that is, without partiality or prejudice. Justice is portrayed as blind not because she ignores the facts and circumstances of individual cases but because she shuts her eye to all considerations extraneous to the particular case. The chapter ends with a list of tentative general guidelines. The last chapter in part 1 deals with the subject of a "Fair Trial". In Sri Lanka a fair trial must be understood as meaning a fair trial within the adversarial system. The right of the defence to be heard (audi alteram partem) has been recognised down the ages as a basic principle of a fair trial. The discussion in this chapter marshals a whole list of concomitant principles which have a bearing on the neutrality and impartiality of the process of adjudication. A dictum of Socrates of ancient vintage spelling out briefly the attributes which should characterise the judicial function is among the age - old principles to which the author refers. Socrates said: "Four things belong to a judge: to hear courteously; to answer wisely; to consider soberly; and to decide impartially". The very appearance of pre-judgement by reason of contact with parties, lawyers, witnesses or victims must be shunned. There must be transparency, decorum and dignity when the court conducts its proceedings. There is nothing more detestable than coarse behaviour on the part of the judge. Courtesy and patience on the part of the judge are necessary for a fair trial. Discourtesy towards litigants is particularly reprehensible. The Judge must be attentive and patient and give counsel a fair opportunity to present his case. He must not unnecessarily interrupt counsel. An over-speaking judge is no well-tuned cymbal. A wagging tongue and a swollen head are said to be occupational diseases to which judges are prone. It is only in an atmosphere of calm detachment where the Judge does not forsake his role that a fair trial could be held. Interesting incidents enliven the narrative in this chapter and illustrate the requirements of a fair trial. ************* New approach to language learning and teaching "A Certificate Course in English" Reviewed by R. S. Karunaratne Dr. Siromi Fernando's "A Certificate Course in English", first published in 1985, has been reprinted after several editions. When I bought a copy, I was rather surprised at the low price of the book. Then I turned the pages to find this unusual note by the publishers: "This book is published as a service and at cost so that it may be within the reach of as many students as possible". If all the other publishers can follow suit, students will buy their books without undue delay. Today students flock to mushroom tutories to learn "Spoken English" and finally end up by learning more Sinhala or Tamil than English. Dr. Fernando's book can be used by students who are really interested in improving their knowledge while following a course. The author, a student of legendary Prof. Doric de Souza, has long years of experience teaching English to Swabhasha medium undergraduates since 1960. She is credited with introducing various methods to induce competence in English among university students. The book is meant for those who are already familiar with the basic grammar of English. Anybody who uses the book meaningfully would gain a sustained competence in the language, a more comprehensive awareness of its structures extending to higher levels of communication such as style and politeness, wider practice in comprehension and a systematic development of composition skills. Although the target readership had been undergraduates of the University of Colombo, the book is suitable for other universities, Technical Colleges, private institutes and individuals who want to have a better understanding of the language. Dr. Fernando has departed from the traditional grammar-based texts by adopting a semantic approach. For instance, under Future Events future constructions with "will" have been introduced. However, such departures from the traditional approach have not abandoned the tried and tested teaching methods. Since teachers of the new generation will require novel techniques. I feel that the author's attempt to write a course that is psychologically motivating and stimulating has been successful. However, teachers would welcome a handbook to be used along with this work as a companion volume. |
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