How independent is the Judiciary?
H.
L. D. MAHINDAPALA
The following anecdotal evidence is narrated to test the independence
of the judiciary that was supposed to exist before the current contest
between Parliament and the Judiciary broke out. The raging controversy
is based on the claim that the Judiciary was independent and the
appointment of a Parliamentary Select Committee to probe into the
conduct of the Chief Justice Dr. Shirani Bandaranayke erodes the
independence of the Judiciary.
The following anecdotal evidence presents a skeletal profile of the
hidden legal system on which the sovereign people were dependent solely
for the rule of law and their share of justice:
First story: Reminiscing about the good old days at Hulftsdorp a
lawyer friend once told me that it was common in his day to see bewigged
lawyers getting off their cars and walking down the solemn corridors of
red- brick Hulftsdorp, followed by peons carrying heavy legal tomes on
their stretched scrawny arms.
"That is all gone now," he added ruefully. "Learned counsel do not
take volumes to court now. Nowadays they take the short cut, the easy
path, by visiting judges at home with bulging envelopes, offering the
kind of irresistible hard evidence that judges cannot refuse."
Second story: Going back to the late sixties I remember meeting a
cross-section of professionals at the AAA -- a popular watering hole of
journos, politicos, lawyers, etc.-- which was located then just behind
Gall Face Flats. I also remember having hot, spicy bites of seer fish or
venison, washed down with sips of gin, lime and tonic, with a prosperous
lawyer-politico who was boasting that he fixes his cases the previous
evening before it comes to trial the next morning. I asked him how.
"That's easy," he said. "I invite ......(all names withheld for obvious
reasons) for drinks the previous evening and over one-too-many he hears
the evidence and the verdict he would deliver next morning in courts."
Chief Justice Dr. Shirani Bandaranayke |
Third story: I also knew a Magistrate's driver with an exceptional
knowledge of the inner workings of court, especially in the art of
making vital evidence disappear the day before the case is due to be
taken up. Once he made a miris gala, a vital bit of evidence, disappear
just like that from the courts store room -- a feat that could have been
performed only by some one like Houdini. I have, of course, lost count
of the number of times I've read or heard of the record rooms of courts
going up in flames, particularly if it contains files of tax cases of
rich big wigs.
Fourth story: Judges, in cahoots with their mates at the bar, offer
liberal extensions to lawyers who postpone their clients cases, over and
over again, which, in effect, means the helpless clients pays out of
their pockets for the needs of the hired lawyers and not theirs.
Fifth story: Chief Justice Shirani Bandaranayake, who has held her
sister's power of attorney for 22 years to manage her investments in Sri
Lanka, uses the power embedded in the office of the Chief Justice to sit
in judgement over her sister's case concerning a property deal, knowing
that she should not touch it even with a barge pole miles long.
Since she, in her defence, claims that the principle of "justice seen
to be done" should apply to her, how will the public see this sacred
principle in operation when she comes to court grabbing her sister's
case in one hand and the sister's power of attorney in the other? Even
illiterate Punchi Banda, who lives in remote Yakdessagala and never
heard of the existence of Standing Orders or the Constitution of 1978,
won't take two seconds to see through it.
Corrupt legal system
The anecdotal evidence cited above covers a wide range, from top to
bottom. This, of course, is not even the tip of the iceberg. It is only
the last tiny flake sitting on the tip of the iceberg. Every
practitioner in the legal system knows more than one story which they
will not talk about in public because it reflects badly on the integrity
and the professional standards. The tragedy -- or rather the hypocrisy
(Jesus had a lot to say about this) -- is that these black-coated
professionals are the first to pontificate on the unimpeachable
standards that must be preserved at all levels to (1) protect the
independence of the judiciary (2) rule of law and (3) delivery of
justice to the sovereign people.
Justice C. G. Weeramantry |
With the damning inside knowledge of the goings-on in courts the
legal fraternity, which is tearing its hair now about the "rule of law"
should seriously ask: is Hulftsdorp governed by rule of law or by
corrupt, underhand, illegal, immoral practices? Can the judiciary be
independent when those in the profession are the first to undermine the
independence of the judiciary by selling justice to the highest bidder?
The vocal lawyers and moralists are babbling and demonstrating about
political threats to the judiciary as if the law-makers are about to
pluck judges from their benches and hurl them into the nearest dustbin.
But how many of these lawyers have shown the same concern to the
sovereign people in villages and cities, who have been fleeced by
unscrupulous lawyers because of their incompetence, postponements of
cases to suit their personal agendas, corrupt practices or by greasing
the palm of judges? When have the lawyers fought as passionately as they
do now to protect the independence of the judiciary from the
black-coated enemy within?
External forces
When have they ever demonstrated publicly protesting that justice
cannot be delivered at the exorbitant fees they extract from the
sovereign poor? Which lawyer ever broke a coconut in defence of a
penurious villager who had been wronged by malpractices of lawyers and
judges in courts? The Kalu Koat Karayas have invariably been on the side
of the rich and the powerful. Justice was constantly bought and sold
over the counter at Hulftsdorp.
Legal practitioners
When did the poor ever have the rule of law on their side? On whose
side was the independent judiciary? There were intrepid judges (example:
T. S. Fernando) who stood their ground resisting all pressures but they
were few and far between. By and large the judiciary would go with the
flow. So will the President of Bar Council, the ever-so- righteous
Wijedasa Rajapakse, PC, initiate action among fellow black coats to
clean up the Augean stables at Hulftsdorp to reform the legal system
which he, like his fellow-lawyers, knows is corrupt to the core? Can a
corrupt legal system deliver justice to the sovereign people? How can
the superficial separation powers at the top deliver justice to the
sovereign people if the process at the bottom on which justice depends
is rotten to the core?
Standing up for the independence of the judiciary does not begin and
end with combating external forces -- political, underworld, money bags,
reforming outdated and bad laws, etc. These, of course, constitute a
part of defending the independence of the judiciary. The struggle to
defend the judiciary goes beyond these to the internal factors that
corrode the integrity of the judiciary, starting from crooked lawyers
and going up to some of the untrained, lazy, judges who sit on the bench
with befuddled heads in the morning after the night before.
Righteous principles of law
Independence of the judiciary also does not mean fighting for the
privileges of those in upper bracket in the official and unofficial bar.
If independence of the bar means delivering justice to the sovereign
people, without tilting it in favour of one side or the other, then
there are greater issues at stake like protecting the citizens
victimized by the tyranny of courts, malpractices of black-coated
hypocrites, costs involved in getting justice, impartiality of the
judges, incompetence of lawyers, and generally lifting the standards of
the legal profession to make it user-friendly for the public who have to
wait for donkeys years just to get their cases heard, let alone justice.
It is the Bar Association that must be in the forefront of this battle
to reform the judiciary to make it independent in a meaningful way to
serve the sovereign people. But so far no one has seen lawyers dashing
coconuts on behalf of the poor people who had been denied justice from
the exploitative legal system.
Independence of the judiciary has had no meaning to the average
citizen who had suffered throughout their lives oppressed by the
lawyers, judges, and those connected to the legal system. Ask anyone who
has come out of the nightmarish legal process and he/she would come out
breathing a sigh of relief never wanting to go back to gruelling process
ever again. So far the vociferous cry of "independence of the judiciary"
boils down to ensuring the right of those in the legal profession to
rake in as much profit as they can with no consideration for the rights
of their clients, especially the poor ones, to obtain some measure of
justice.
If the Bar Association and those black-coated coconut dashers had
devoted one fraction of the concern they spend on saving their
privileges in the name of saving the independence of the judiciary to
bring some justice and relief to their poor clients by reforming the
legal system, the sovereign people could look up to those on Hulftsdorp
hill as valuable and sincere contributors to life, liberty and
happiness. But one has to wait and see when -- if the day ever comes --Wijedasa
Rajapakse, who wants to reform everything around him, will ever dare to
clean up the rot in his professional backyard and restore an independent
judiciary free from legal tyranny and corruption.
It is in this background that respected Justice C. G. Weeramantry's
judiciously couched phraseology directs it censorious force to question
the ethics of legal practitioners. In his writing he has been very
critical of the legal profession. His latest statement on this aspect
goes to the heart of the crisis within the profession. He said: “If a
judge fails in his duty of judicial integrity, that entire nation is
lost. It is only when the community has confidence in the integrity and
the capacity of the judiciary that that community is governed by the
rule of law. In other words, you don’t have the rule of law, you don’t
have democracy in any community where the judge is lacking in
integrity.”
Before I place this statement in its local context I must digress to
sketch briefly Justice Weeramantry's role in the Sri Lankan judiciary.
Earlier I mentioned that there are two models established at Hulftsdorp:
1) the model of T. S and Mark Fernandos, both of whom adhered to the law
and its spirit with redoubtable tenacity to preserve the purity and the
integrity of the judiciary; (2) the model at the other extreme of Chief
Justice Sarath N. Silva which doesn't need any more elaboration.
Religious values
The third model was established by Justice Weeramantry who reached
the pinnacle not only in the legal profession when he was appointed to
the highest court in the world, the International Court of Justice, but
also in his scholarly approach to the law, bringing in
inter-disciplinary perspectives to enrich the law and serve the
sovereign people through the use of the most civilized and humane force
available to humanity: the righteous principles of law. Those who had
read his numerous volumes, including the published two volumes of his
biography (the third is on the way), will agree that his legal
philosophy is influenced deeply by religion.
Just not his Christian faith but all mainstream religions. He sees
religious leaders as the primary law-givers for mankind and he draws
deeply from religious sources to give depth and meaning to the laws of
day. One outstanding contribution in this vein is his book titled The
Lord's Prayer -- a path-breaking approach to Christianity from a legal
perspective. He delineates the oppressive socio-economic conditions that
prevailed in the time of Jesus in Jerusalem and teases out the profound
legal principles enshrined in the Lord's Prayer.
He relates the crises of modernity to either the neglect or
abandonment of the fundamentals contained in the highest principles of
religions. His criticisms of the crises in environment, politics,
science and technology, law etc., are based on religious values and, in
his main thesis, he concludes that the security. stability and the
future of the good earth -- the exclusive home of mankind -- can be
assured only by returning to the religious values and the life-style
prescribed in the sacred texts. By this he does not mean a return to
institutionalised religions.
He refers essentially to the life-enriching values that can take the
individuals lost in crass materialism into the next level of a moral and
meaningful life. It is in this spirit of his concern for humanity and
their future that he delivered the landmark judgment which declared all
weapons of mass destruction illegal at the International Court of
Justice. It was a dissenting judgement no doubt. Nevertheless, it
resonated globally with a lasting moral impact that is slowly but surely
gathering a momentum of its own.
His attitude towards his own legal profession too is drawn from
religion. Talking about lawyers at a recent dinner in Melbourne I heard
him telling another lawyer that he must read Jesus on lawyers. “You must
read Mathew from 23: 22. Jesus was very severe on lawyers.” True. Jesus
had never excoriated any other profession as that of the lawyers. His
angry verbal explosion is devastating. He calls them “hypocrites”,
“blind fools”, “blind guides”. He tears into them saying: “You snakes,
you vipers’ brood, how can you escape being condemned to hell?” (23:33).
He begins his tirade against lawyers on a quieter tone. This is how the
long text begins: “The doctors of the law and the Pharisees sit in the
chair of Moses; therefore do what they tell you; pay attention to their
words. But do not follow their practice; for they say one thing and do
another. They make up heavy packs and pile them on men’s shoulders, but
will not raise a finger to life the load themselves. Whatever they do is
done for show....” (p.51 -- The New English Bible, The British and
Foreign Bible Society in association with Oxford University Press and
Cambridge University Press, 1962)
The source of Judge Weeramantry’s statement referring to “the duty of
judicial integrity” can be traced to the Bible. He is quite emphatic
when he says: “If a judge fails in his duty of judicial integrity, that
entire nation is lost.”
Parliamentary Select Committee
He, of course, is not referring to the current crisis. He is focused
in general on the principle of a judge’s duty to uphold judicial
integrity. But there is no doubt that it is a principle that applies
directly to the Sri Lankan judiciary. He leaves no doubt that judicial
integrity must of the highest unimpeachable standards. The last word on
lawyers is with Jesus who said: “Alas, for you, lawyers and Pharisees,
hypocrites! You travel over sea and land to win one convert; and when
you have won him you make him twice as fit for hell as you are
yourselves” (Mathew, 23: 15). The lawyers at the bar indeed have done
just that -- dragged Sri Lanka into another hell!
The current contest between the legislature and the judiciary
revolves mainly round the issues of “judicial integrity”, “independence
of the judiciary:, “rule of law”, separation of powers”, leading finally
to who has the final legal authority to lay down the law to whom -- is
it the judiciary to Parliament or vice versa? CJ’s team of lawyers is
appealing to the courts urging that in the contest between the courts
and the Parliamentary Select Committee the Courts must take away the
option available to Parliament to hear the case of the CJ and hand it
over to court. “On that selection it is respectfully submitted hangs the
future of the independence of the judiciary,” says K. Kanag-Iswaran the
counsel for CJ.
Superior courts
The issue before the Appellate Court is not that of the “independence
of the judiciary”. The issue is whether courts can impose a new and
arbitrary interpretations of the law and take away the powers vested by
the Constitution in Parliament to appoint a select committee and hear
the cases of misconduct of the judges in superior courts, including CJ.
In his submission Kanag-Iswaran is openly and unequivocally appealing to
the Courts to interpret the law in favour of the Courts.
He would not ask the courts to interpret it in favour of the courts
if the law had not given Parliament the right to hear the case. It is
because Parliament is vested with the power of hearing the case of a
superior courts judge that Kanag-Iswarn is asking the courts to deny
that right to Parliament and hand it over to the courts.
If the courts had that exclusive right in law he should ask the
Appellate Court to uphold the law -- not to interpret it in favour of
the courts.
So if the Courts go out of its way to take away the power of
Parliament to hear cases against judges in superior courts and hand it
over to the courts then it would amount to a dictatorial grab of power
to strengthen the hands of judges who can pervert the law with no one to
check them. It would also question “the independence of the judiciary”.
Can a court be trusted to judge independently, without bias, a case in
which the judicial powers constitutionally vested in Parliament is
contested with a view to grab it from the legislature and hand it over
to the judiciary? Yes, if the judge was like T. S. Fernando. So it is
the judges who will be on trial with the issue of the “independence of
the judiciary”.
Considering that granting judicial powers to an external institution
would erode its own powers the natural temptation would be for the
courts to interpret the law in its favour. It would be something like
the CJ deciding to hear the case of her sister because she has a stake
in the investments of her sister by holding in her hands the power of
attorney to the family property.
As stated earlier, this issue tests the integrity of the judiciary.
Given the high voltage electrifying the political landscape, can the
judiciary uphold the rule of law when their interests are at stake? This
case as argued by CJ’s counsel, K. Kanag-Isveran, unequivocally concedes
that Parliament has the right to hear the case of judges in superior
courts. But -- hold your breath! -- he says that this right must be
transferred to courts for the courts to maintain its independence,
disregarding what the Constitution states in black and white.
In 107 (3) of the Constitution the law states that Parliament is as
good as a court in trying judges of superior courts ONLY.
After the Constitution vested in Parliament the legal power to try
judges of superior court in principle it was left to Parliament to
structure the mechanism for trying judges which subsequently was laid
down in Standing Order 78A.
The law vesting power to Parliament is in 107 (3) of the
Constitution. What is in 78A is the mechanism to implement that power
vested in Parliament and it is the right of Parliament to devise its own
instrumentality to implement the powers vested in it. It is similar to
the Constitution vesting powers in the Judiciary in principle and the
judiciary devising its own mechanism to implement those powers. So it’s
not a question of what is right and wrong in law. Or who has the power
to try judges or not. It is because the Constitution has vested the
power in Parliament that the Judiciary is fighting now to grab that
power from Parliament.
Parliamentary privilege
The precedent for Parliament to act as judge has also been
established. Harold Peiris, the Editor of the Sunday Observer, was tried
before Parliament on an issue of Parliamentary privilege and fined Rs.
1,000.00. If citizen Harold Peiris can be tried by Parliament why can’t
citizen Dr. Shirani Bandaranayake be tried, especially when the law says
that judges of the superior courts, including the Chief Justice, should
be tried by a Standing Order of Parliament. Neither the Chief Justice
nor the Judiciary is above the law. Trying the superior judges by
Parliament is another way of maintaining the checks and balances
entailed in the principle of separation of powers. Allowing judges to
try each other (no pun intended) is not a healthy practice for the
preservation of the rule of law or the independence of the judiciary.
If the courts decide to usurp powers that it does not have and grab
power vested in Parliament to empower the judiciary, which is something
like grabbing your neighbour’s property to expand and strengthen the
base in your little acre, then it amounts to the judiciary acting
illegally to place the judiciary above the law with no checks and
balances. It would lead to reinforce the Actonian principle that would
tend to establish the untrammelled dictatorship of the judiciary. Such a
scenario can have serious consequences to the nation. Powers that
invariably corrupt individuals and institutions tend to propel both to
demand more powers, all in the name of high principles. This leads to
the erosion of the integrity and credibility of institutions and
individuals. That is why there are checks and balances in the separation
of powers.
It is in this context that the warnings of Justice Weeramantry
becomes germane. As he stated: “If a judge fails in his duty of judicial
integrity, that entire nation is lost. It is only when the community has
confidence in the integrity and the capacity of the judiciary that that
community is governed by the rule of law. In other words, you don’t have
the rule of law, you don’t have democracy in any community where the
judge is lacking in integrity.”
Next question: So will the judiciary uphold the law or will it bend
over backwards to uphold its own interests under the cover of upholding
“the independence of the judiciary” which doesn’t exist as shown in the
anecdotal introduction? |