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The foundational elements of justice
 

BY SARATH Malalasekera
 

"It is absolutely necessary and is of fundamental importance that when exercising judicial authority that justice should not only be done, but should manifestly and undoubtedly be seen to be done", said Judge of the Supreme Court, Justice Dr. Shirani A. Bandaranayake delivering a speech at the conference organised by the Judicial Service Association (JSA) recently in Colombo.

Senior Supreme Court Judge, Justice Shirani A. Bandaranayake is formerly Associate Professor of Law and the Dean of the Faculty of Law, University of Colombo. Speaking on "The Rule of Law and Public Confidence in the Judiciary", Justice Shirani Bandaranayake said the Judge has a burdensome responsibility to discharge.

The judge is obliged to enforce laws laid down by Parliament or created by more senior judges which he may with justification think unfair, absurd or downright dangerous. Judges, it should be noted, are mere mortals, but they are asked to perform a function that is truly divine.

"Confidence in my view is something which is not easily achievable. The word confidence has been defined, to mean as the mental attitude of trusting in or relying on a person or a thing with a firm trust, reliance and with sincere faith.

The confidence placed in the judiciary by the general public of any nation, thus would be based on such trust and/or reliance that justice would be meted out, without any undue considerations. From the point of a litigant, becoming involved in a lawsuit is not an easy task.

For him it would be like "being ground to bits in a slow mill; being roasted at a slow fire; being stung to death by single bees; being drowned by drops; going mad by grains."

However. hundreds of thousands of people, some of them actually choosing to initiate this process, turn to litigation every year.

The experience, undoubtedly for them would be painful, protracted and expensive. At the end of the day some of them would certainly realise that the whole process was futile.

Nevertheless, there would be a long, never ending queue that would be joining for the machinery to continue, notwithstanding the end result of their action," Justice Bandaranayake said.

Justice Shirani Bandaranayake emphasised that although there may be various views expressed as to the concept of Rule of Law and how it is applied, it is clearly evident that the Rule of Law is accepted as a concept which underlines the basic request that government should operate according to laws made by a democratically elected Parliament and applied and interpreted by an independent judiciary.

'Justice delayed no doubt is justice denied. However, justice hurried could be justice miscarried. Just courts which could have a proper balance of the two extremes through wise and imaginative administration could be the symbols of civilization and the ultimate expression of it,' Justice Bandaranayake added.

Excerpts of Justice Bandaranayake's speech:
 

Irrespective of the result one would get at the end of the day, the litigant would anticipate that he would be in a position to obtain redress and that justice would be meted out to him to his satisfaction.

What would occur, if there is a system as that happened in Alice in Wonderland, a book, I think all of us would have read as children. If I may refresh our minds as to how the mouse, whom Alice encountered in the pool of tears, had been ill used by fortune by reciting the following lines:

"Fury said to a mouse,
That he met in the house,
'Let us both go to law;
I will prosecute you.

Come, I'll take no denial,
We must have the trial,
For really this morning
I've nothing to do'
Said the mouse to the cur,
'Such a trial, dear Sir,
With no jury or judge
Would be wasting our breath'
I'll be judge, I'll be jury
Said cunning old Fury.

I'll try the whole cause
And condemn you to death."

Along with the development of the applicability of legal principles, the doctrine of Rule of Law has expanded to include several rights which are rooted in respect of the human personality.

As pointed out by Prof. Weeramantry, free movement and fair trial, right to counsel and recourse to court, freedom of speech, freedom to agree and freedom to dissent, freedom of the press, freedom from racial discrimination, freedom of labour, freedom from retrial and from cruel and inhuman punishment could be listed out as some of the items in an unending list.

The question which arises at this juncture is with all the safeguards taken from a theoretical point of view, as to how it would be applicable to create public confidence in the judaical system.

Referring to the passage which I quoted earlier from Alice in Wonderland, Prof. Weeramantry states that.

"Readers of this sad tale are apt to laugh it off as something that could happen only in Wonderland.

Unfortunately, it has happened throughout history and is still the condition under which the majority of mankind lives.

Indeed, pre-judging and combinations of prosecutor, judge and juryman occur in real life with far greater attendant persecutions of the accused than in the mouses' tale."

However, in discharging his responsibilities he is being empowered to take decisions which would affect lives and livelihood of all those litigants who enter his court.

Should a man be sent to prison? Who should have the custody of the children in question? Is this woman to lose her house? Are these people to be deported?

Considering these positions it has been said that, if the judge is not careful, the judge may precipitate a civil war, or he may accelerate a revolution or he may accidentally cause a peaceful, but fundamental change in the political complexion of the country.

They are also subject to similar ambitions, passions, prejudices and fears as their contemporaries. In simple words they are human and if you prick them they bleed; just like any other person.

However high the general standard of judaical competence, there will always be human weaknesses which affects their judgements.

Because judges are human and not machines, it is necessary for the public to expect judicial frailties and not judge them too harshly.

Nevertheless, it is essential and necessary that we must and should take extra precautions to limit the damage such imperfections might do to the interest of justice. By doing so only we would be in a position to gain and continue to hold the confidence of the general public.

For that purpose in my view there are several steps that we have to take when imparting justice. It is not my intention to list out all what is necessary to be taken to achieve our ultimate goal.

Within the given time frame I wish to emphasise on three major areas which in my opinion would be important to cultivate, maintain and develop the confidence of the general public in the judicial administration and the judicial system as a whole.

Firstly, it is an elementary as well as an essential feature that there should be fair dispensation of justice.

In fact, following the statement in the Magna Carta, the English statutes had provided that no one should be condemned except 'in due manner, or by process made by writ original at the common law'.

Both the Magna Carta and the statute of 1354 were quoted in the Petition of Right in 1628 which used the phrase 'due process of law'.

In the United States 'due process' has been ensured by its adoption in the Fifth and Fourteenth Amendments to the Constitution. English Courts, have increasingly resort to 'fair play in action, common fairness, the fundamental principles of fair trial, and common fairness.

These phrases are used most of the time to refer to a standard of behaviour which the courts require to be followed even in circumstances where the duty to observe natural justice is inapplicable.

Fair treatment or fairness in judicial adjudication in my view would act as a guide in many situations. It is fundamental to a just and reasonable decision that each party should have the opportunity of knowing the case clearly against them.

It is equally important that both parties must be given an opportunity to present their version of the facts and make submissions on the relevant rules of law.

Neither party should be allowed to communicate with the judge without the knowledge of the other party.

Secondly, in my view it is absolutely necessary and is of fundamental importance that when exercising judicial authority that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

On certain occasions, although justice would have been meted out to the parties concerned, it may appear that it had not happened so, which would leave in the minds of even reasonable persons that justice was not caused out.

What is important is that the court must be concerned not with a case of actual injustice, but with the appearance of injustice or possible injustice.

Throughout the years courts have been concerned of the applicability of the maxim that justice should not only be done, but seen to be done, simply due to the reason that if the maxim is applied correctly, there will not be any party who would leave the temple of justice with bitterness and anger.

It was Lawton, C.J. who said in Maxwell v Department of Trade that 'doing what is right may still result in unfairness if it is done in the wrong way'.

The request that justice should be seen to be done has been regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice.

It is also apparent that the assurance that justice have been seen to be done is in itself, an important element in the public confidence in the settlement of disputes in courts.

Out of many important areas pertaining to the applicability of different facets of the rules of natural justice, which would give rise to a situation where justice does not be seen to be done, the most important would be the need to give reasons for the decision.

With the desirability of giving reasons for decisions so widely recognized, it could be argued that the failure to do so would amount to a failure that would in turn to be justice not seen to be done.

Thirdly, I wish to deal very briefly with a problem which is quite close to all of our hearts. I am of the view that the persistent, permanent and widely prevalent delays that existed in the judicial administration had been one of the foremost reasons which resulted in the erosion of public confidence.

For such an erosion there were justifiable reasons. The delays could create several complications. With the passing of time the memory is lost, deterrence is reduced, witnesses move or disappear and costs increase.

There would be emotional hardships at least on some litigants. It would tend to undermine the efficacy of the whole legal system.

The culmination of all these would be to destroy justice. The delays would sap up the energy and the strength of the system. The ultimate result would be that the majority of the litigants would lose confidence of the courts.

However, it is to be borne in mind that although expedition and speed are also necessary in the disposal of cases, this should not be the sole object of the exercise.

The goal of a good and fair judicial system should not be the speed, but should always be to mete out justice. A litigant resorts to a court of law to ventilate his grievance, to vindicate his rights and to obtain justice.

Therefore a litigant and his counsel have a right to utilize the court time and to present his case in reasonable manner and according to the law. A court must regard the entertainment of a complaint and the giving of hearing to an aggrieved person not as a favour, but as a public duty.

For the purpose of carrying out judicial administration expeditiously and with speed the rights of the litigants should never be sacrificed.

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