Instituting a proper judicial structure

Written following the Parliamentary debate on reforms suggested to make justice more accessible, this essay reflects on amendments to increase the number of High Court Judges

Prof. Rajiva WIJESINHA MP

Having been made aware recently of delays in the judicial process, I was pleased that one of the first pieces of legislation of the current Parliament dealt with increasing the number of High Court judges. The amendment seemed small in scope, but it dealt with a crucial area where it is important that we move to greater professionalism and accountability.

One reason for continuing criticism of our judicial system is, very simply, that our judges are overworked. This leads to inordinate delays in meting out justice. Apart from the simple principle, that justice delayed is justice denied, it is also unfortunately true that such delays strike hardest at the relatively deprived in our society. The amendment then was a welcome first step towards making our judicial system more responsive to the needs of the people.

Judiciary quarters

This seems especially important in a context in which efforts are being made to denigrate our judiciary in various quarters. Last year I attended a meeting to present a report prepared, I believe, by the International Commission of Jurists, during the sittings of the Human Rights Council in Geneva, to criticize the system of justice in Sri Lanka by suggesting that our Courts were politicized. Most entertainingly, the bulk of the arguments they advanced had to do with what they claimed was the oppressive approach of a former Chief Justice of Sri Lanka.

I had to point out then that the recent history of the individual concerned, both while he held high office and after he had given this up, suggested a political agenda that was deeply critical of the government. This seemed ample evidence that the judiciary was indeed independent, though whether independence that seems to violate judicial principles should be celebrated is another question. I do not think it would be appropriate to comment on judicial decisions made during his tenure, but I believe it is one of the strengths of our system that no criticisms are made now of the higher echelons of our judiciary on the grounds of politicization.

Certainly we have previously too been through periods in which some judges have seemed less committed to judicial principles than they should have been. I recall for instance the dissenting judgment in the Pavidi Handa case, way back in 1983 I think, when one judge seemed to argue that an elected government should not be challenged. Fortunately the majority of his colleagues held against him, and rightly I believe ruled against the government of the day.

Unfortunately that government proceeded to insult the Courts by paying the fine and promoting the police officer concerned, and barracking the judges, but I am pleased to say the judiciary was not cowed.

However, even though I believe we can by and large be proud of our senior judiciary, this is an institution that needs nurturing. Important as its pronouncements are, we have to ensure that they are based on sound arguments, anchored in social and political realities, and delivered swiftly. Unfortunately we are seeing constant derogations from the high standards of the past, due largely to the burdens cast on the judiciary by increasing amounts of litigation, and the advantage taken of the system by lawyers who have no compunction about applying pressures that are inappropriate.

In this context I am reminded of a recent newspaper article that drew attention to a situation in which relevant witnesses have not been permitted to testify, courts are misled and indeed lied to, written undertakings are ignored, multiple cases are brought with regard to the same or similar issues, contradictory testimony is furnished in different places, dates are sought and obtained without discrimination, and objections are made arbitrarily to judicial officers who are not compliant with a process that seems designed to serve continuous and wearing litigation than arrive at justice and a solution to problems.

Lower courts

The argument was that this sort of indulgence is meted out to litigants who are also lawyers. Certainly I recall, when I was at Sabaragamuwa University, similar interference with the lower courts by those able to exercise influence, which magistrates were unable to withstand. We must then have a system of review of such incidents, and responses must be immediate, because continuing abuse leads to increasing suffering, and increasing costs and increasing profits for the few unscrupulous lawyers in a profession that has generally maintained its dignity. However, just as bad money drives out good, connivance by a few members of the judiciary with a few members of the legal profession creates an example that others see no reason not to follow.

In this context it is to be hoped that the Minister of Justice will look seriously at the model of justice that was suggested over thirty years ago, when there was a serious effort at judicial reform in the interests of the people. Strengthening of arbitration and conciliation procedures was unfortunately opposed then by the same group of lawyers who produced the 1978 constitution, which suggests that professionalism was not their strong point.

Procedures and practice

Similarly, we need to look carefully into sentencing procedures and practice, to use reform rather than retribution as the main principle of punishment, to encourage community service, in particular for the young, and in short move away from the adversarial system that we have inherited from the British and which they have long abandoned. The idea of two sides in fundamental opposition to each other, with an all-wise judge acting as the decision maker, is a model that the world has outgrown, and we need to move towards a more active search for consensus in our procedures.

I am aware of many very positive proposals that have been delayed for a variety of reasons, none of them comparable with the benefits that our people will derive from the changes that have been agreed. It is true that there were reasons for many initiatives being delayed in the past, given the enormous workload of the Ministry but, now that we have overcome the worst threats or terrorism, and that rehabilitation is proceeding well on the basis of sympathy and understanding rather than adversarial judicial principles, reforms in necessary areas should be swift.

This should be accompanied by professional training for the police, in investigation, interrogation and also prosecution, so that the current low rates of conviction in all legal proceedings are altered. We should also introduce performance indicators, to reduce unnecessary delays and recognize and encourage judges who serve our people swiftly and effectively. In civil cases as well as criminal proceedings, delays and unnecessary expenditure must be reduced, so that the third branch of government lives up to the exalted role it is called upon to fulfill.