Independence of the Judiciary

Sarath Wijesinghe

Guidelines: The Judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens. The 6th United Nations Congress called upon the Committee to create guidelines relating to the independence of judges and the selection of professional training and status of judges and prosecutors.

This has been taken into account and respected by many governments in the world. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution over the law of the country.

It shall decide matters before them impartially on the basis of facts and in accordance with the law without any restrictions, improper influences, inducements, pressures, threats of interferences direct or indirect from any quarter or any reason.

It is accepted that "everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures".

The term of office, their independence, security, adequate remuneration, and conditions of service, pensions and the age of retirement shall be adequately secured by law. Promotion should be based on objective factors particularly ability, integrity and experience.

Rule of law

The Independence of judiciary is the key to upholding a rule of law in a free society. The protection of human rights too is dependent on the guarantee that judges will be free and will reasonably be perceived to be free to make impartial decisions based on facts and law alone.

The laws must be public knowledge clear in meaning and must apply to everyone equally.

The international covenant on civil and political rights (1966) guarantees the rights of an accused person to prepare adequately for the defense and the right to a fair trial is guaranteed; affirmed by two other significant conventions in 1984 and 1989.

In 1985 the United Nations Assembly adopted the basic principles on the Independence of Judiciary.

There also should be administrative independence and immunity for the judges to perform their functions freely and impartially. There is a doctrine that political power should be divided among several bodies as a precaution against "tyranny" opposed to absolute sovereignty of the Executive Legislature, Judiciary or any other body.

Under the separation of powers the legislative branch makes the laws, the executive implements the laws, and the judiciary the court system interprets the laws and decides legal controversies.

"Montesquieu" based his theory of separation of powers on the British Constitution system in which he perceived separation of powers between the King, Parliament and the Courts of Law. Montesquieu did precise that "the independence of judiciary has to be real and not apparent merely".

Legislature

According to "Walter Vagehot" the Legislature is elected by the people, and the legislature creates the executive.

Under the present context in Sri Lanka the Executive too is elected by the people direct and the judiciary has been given all the privileges and protection under the Constitution of the Democratic Socialist Republic of Sri Lanka.

In India according to "V T Goshi" Indian judiciary has become a decaying institution. According to him the Indian model was set up as a poor copy of the British judicial system. The Absence of relationship between judiciary and academic community in India has weakened both institutions.

Internal decision

The powers of the Supreme Court in India are almost unlimited under Article 141 of the Constitution which has given Supreme Court powers to act even as a legislative body.

Armed with such wide powers it could have been logical for the judiciary to develop internal decision making process and systems for the judiciary to develop internal decision making process.

The public interest litigation has invaded the power of the Executive process and the powers by which most of far reaching changes in the economic front too have been taken away and as a result international investors and co-operations are considering Indian Judiciary as a big hurdle.

In Sri Lanka too we follow the British model and decisions of the Western Judicial System. The legal system is a very complicated and cumbersome process, especially the civil and the personal laws which is the mixture of combination of many personal laws.

In Sri Lanka we need straightforward, simple legal system. It is also matter of concern that the bodies appointed to propose suggestions and changes to the Executive are inefficient and inactive. Apparently they are busy with many personnel and projects on law on other areas other than law reforms.

The Principle of separation powers and the origin traces back to Aristotle's time. Strict separation of powers did not operate in Britain where the Parliament is the Supreme Law making Authority. The Executive branch acted in the name of the King.

One Minister the Lord Chancellor was at the same time the sole judge in the Court of Chancery and the presiding officer in the House of Lords. In the USA things are different and the Executive power is vested with the President which will take care of that the law should be faithfully executed.

The courts check both the Executive and Legislative branches through judicial review.

Fearless judge

In Sri Lanka from the inception separations of powers were in existence, and the three branches performed their duties in harmony except for a few instances of turbulent situations.

Chief Justice Neville Samarakoon in Sri Lanka had differences with J R Jayewardene who appointed him from the unofficial bar. He was an outspoken, honourable, fearless judge who had a turbulent period with the Executive. But that particular incident has not damaged the continuity of the existence of separation of powers and the co-existence among the three branches of Government.

Let us now check the judicial functions and also the checks and balances of the judiciary and judicial powers. The functions of the judiciary in any country could be summarised as follows:

* Determine which laws apply to any given case * Determine whether a law is unconstitutional * Has sole power to interpret the law and to apply it to particular disputes * May nullify laws that conflict with a more important law or constitution * Determines the disposition of prisoners * Has power to compel testimony and the production of evidence * Enforces uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges (The amount of discretion depends upon the standard of review, determined by the type of case in question) * May rule only in cases of an actual dispute brought between actual petitioners * Policies its own members * Is frequently immune to arbitrary dismissal by other branches.

Legal system

In Sri Lanka the legal system was originally a combination of Roman/ Dutch and English Law. The present system of judicial administration and organization is based on the current constitution introduced in 1978.

The judiciary comprises of the Supreme Court, Court of Appeal, Provincial High Courts, District Courts, Magistrates Courts and Primary Courts. The Supreme Court is the country's highest court headed by the Chief Justice and other judges.

The major jurisdiction of the Supreme Court includes constitutional, final appellate and fundamental rights jurisdictions. In the absence of the jurisdiction of House of Lords the final appellants' power is vested on the Supreme Court in deciding the fate of the nation individually and collectively.

The Supreme Court is an institution which runs independently with the funds allocated by the legislature and monitored by the Executive. Apart from the traditional and inherent powers, Constitutional, Fundamental rights issues; Election cases and many others concerning the Executive and Administrative powers which are monitored by Writs are the areas which give enormous powers to this institution.

Article 126 gives the Supreme Court exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by Executive or Administrative action of any fundamental rights declared and recognized by Chapter 3 or 4.

This jurisdiction has gradually developed the human rights jurisprudence, with the knowledge and rapid improvement of the knowledge of the conventions, covenants and human rights instruments which are being directly and indirectly imported to Sri Lanka.

Comparatively Sri Lanka has the largest number of Non Governmental Organizations (NGOs), Human Rights Activists Organization in a developing country. NGOs have found Sri Lanka to be a fertile ground for NGO activism.

There may be few genuine NGOs, but the general feeling and the impression of an average Sri Lankan on the NGOs in Sri Lanka are unpleasant and doubtful. Many people believe they have misused polite and good nature of Sri Lankans and the economic backwardness of an average Sri Lankan.

Politicised

Sri Lanka is a politicised nation where all the steps in the day today life too are politicised and decide on political considerations. This is a sad reality. Therefore any decision of any important land mark decision on the acts of decision makers are looked and considered very carefully and suspiciously by an average citizen.

According to accepted norms and principles laid down, judges are expected to be educated, experienced, impartial and of the highest calibre. They should be given protection and freedom to exercise their duties. "Justice Delayed" is justice denied.

The laws delays are not confined to Sri Lanka. It is the case in many parts of the world where the systems are complicated. There the judiciary and the executive are aware of their defects and take all precautionary measures to correct themselves.

We too go through a difficult patch in this area of laws delays, but very genuine attempts to curb the situation made by the present Judicial Structure headed by Lordship Sarath Silva, the present Chief Justice is commendable. He was consistent in taking steps to prevent laws delays and to streamline the system of judicial process and the due process.

The Executive too should be equally commendable for having allocated funds with no hesitation for the betterment of the living conditions, and to improve the knowledge and status of the judges. There was a time when the judges were highly respected and the nation had full trust in their ability and impartiality.

It is the need of the hour to take all possible steps to maintain the same standards and expected standards locally and internationally as knowledge of law and the language and access to knowledge is as important as respectability and impartiality. It is also necessary to harmonise duties of the three sections of the Government to maintain due process and law and order.

Fourth pillar

According to the some schools of thoughts the other main limb of the Government is the "media" which some people name has the fourth pillar which is today very aggressive and active in Sri Lanka where they exercise real press freedom .

The independence of our judiciary is to be adjudged by the peoples of the nation, who are subjected to litigation and decision of the judges, which has direct and indirect impact on the day today life and the future and the future of economy of the country.

The decisions may appear to be simple and straightforward but the impact and the end result of the decision and pronouncements locally and internationally may be irreparable and disastrous. The judiciary in the United Kingdom is one of the best models and their independence is felt by the professionals and the people.

In the United Kingdom the judiciary has demarcated their own boundaries and enormous powers are exercised cautiously in the interests of the nation and themselves. In the unwritten Constitution in the UK the enormous conventional powers the legislature as well as the judiciary has unlimited powers which they exercise subject to enormous self constraints and restraints.

We have imported the language, the system of Government, the criminal commercial systems of law and all other principles and norms of Justice from United Kingdom and it is best to follow the judicial independence norms precedence and judiciary made restraints.

It is also very happy to note that presently the Executive legislature and the judiciary in Sri Lanka work hand in hand with peace and harmony and co-existence. The recent judicial decisions and remarks and the friendly nature of the leaders of the three institutions are a reflection on their commitments and the assurance that, that they live up to the expectations expected locally and internationally.

The writer is an Attorney At Law and Convener of the Committee for International Law and International Relations.