‘District Judges, magistrates’ strike’ - some issues

Vernon Botejue - Senior Attorney-at-Law

The independence of the Judiciary is enshrined under the provisions of Article 107 of the constitution. This has been emphasized recently by President Mahinda Rajapaksa publicly, “I uphold the independence of the Judiciary. I have never interfered with the Judiciary at any time.” But added “They must act Just”.

These words are enshrined in the well-known legal maxim “That justice must not only be done but seen to be done”. It is crystal clear that while the independence of the Judiciary is guaranteed and protected under the constitution: justice to the people is dependent on judges upholding the principle enshrined in the said legal maxim, in the exercise of their duties performed under oath, that the President emphasized. It is not worthy that the independence of judicial officers that includes District Judges and Magistrates is guaranteed under the provisions of the constitution of Sri Lanka Article 116 (1) of the constitution that provides inter alia “Every Judge shall exercise and perform such powers and functions without being subject to any direction or other interference proceeding from any other person except a superior Court, tribunal institution or other person entitled under law to direct or supervise such judge in the performance of such powers or functions.” This writer recalls that prior to the enactment of aforementioned provisions in the constitution, there were eminent magistrates and District Judges who rejected interference by others.

The magistrate concerned was a famous advocate who stood head and shoulders above others both in physique and intellect and well-known for his ‘hand shake’. When the Legal Secretary had written to him that he should increase the fines imposed in court to enhance the finances of the colonial regime, he had the courage to reply that he will not do so and rejected such interference with his Judicial decisions. Then there was the District Judge who had the independence and courage to reject the request of the Minister of Justice of the day to forward to him a record of a case in his court as the minister was not empowered to do so. Thereafter the law was enacted to empower the minister to do so.

Judicial powers

Interference with the Judiciary is deemed to be an offence punishable under Article 116 (2) of the constitution: ‘Every person who without legal authority interferes or attempts to interfere with the exercise or performance of the Judicial powers or functions of any judge referred to in paragraph (1) of this Article shall be guilty of an offence punishable by the High Court on conviction after trial without a jury with imprisonment of either description for a term which may extend to a period of one year or with fine or with both such imprisonment and fine and may in addition be disqualified for a period not exceeding seven years from the date of such conviction from being an elector and from voting at a referendum or at any election of the President of the Republic or at any election of a Member of Parliament or any local authority or from holding any public office and from being employed as a public officer.”

Who dares to commit such offence liable to such dire punishment not even under the Penal Code of Sri Lanka for grave offences? Such is the protection guaranteed to magistrates and District Judges under this law. Reciprocally then what is the obligation of these highly honoured and respected judicial officers towards the citizens of Sri Lanka?

The answer is enshrined in the provisions of Section 6 (2) of The Judicature Act No 2 of 1978 that provides “Every person appointed to be or to act as a judge or magistrate, as the case may be, of a Court of First Instance shall before he enters upon his office take and subscribe or make and subscribe the oath or affirmation of office prescribed in the The First Schedule hereto.”

Access to justice

The Oath or Affirmation of Office under Section 6 (2) of the Judicature Act 1978 is recited herein verbatim for the benefit of the public as set out in the First Schedule:

“I (name of judge) do solemnly affirm/swear that I will be faithful and bear true allegiance to the Republic of Sri Lanka and that I will well and truly serve the Republic of Sri Lanka and duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my offices as Magistrate/District Judge in accordance with the law and that I will do all right to all manner of people after the laws and usages of the Republic of Sri Lanka, without fear or favour affection or ill-will.

Having taken/subscribed to such solemn oath/affirmation; a reasonable question that arises in the mind of the public is, “Is it lawful for the judicial officer who has vowed to be faithful and bear true allegiance to the Republic of Sri Lanka and well and truly serve the Republic of Sri Lanka and duly and faithfully and to the best of my ability knowledge and judgment perform the duties of my offices in accordance with the constitution and with the law and that I will do all right to all manner of people after the laws and usages of the Republic of Sri Lanka without fear or favour affection or ill-will”; to voluntarily take decisions and shut the doors of court established to serve the people even for a day thereby denying access to justice to the people, that such judge, vowed to serve well and truly? If the answer to this issue of such strike by the said Judicial officers is in the negative then who is liable to compensate the litigants who have suffered unnecessary expenses and losses being shut out of court that is established to serve the people and not for the benefit of the judges?