Judges expose systemic failure in corrupt judiciary

H. L. D. Mahindapala

The anecdotal evidence, revealing what the judges are up to on the bench,should have amused and, more importantly, shocked the Magistrates and District Judges gathered at the Annual General Meeting of the Judicial Services Association, (JSA)held on December 22, 2012. For instance, Appeals Court Judge Justice A.W.A Salam speaking on the theme of judges falling asleep on the bench while cases are in progress confessed: “I also sometimes feel sleepy.

I have my own way of doing it. When I’m quite alert, I just close my eyes and wait. Suddenly, I open my eyes and, to show that I had followed everything while my eyes were closed, I ask him a question! So even if I fall asleep, he thinks I’m pretending to be asleep!” It is hilarious, no doubt, but there is a flip side to this story:what is the impact of it on the litigants who come in search of justice? The Chief Justice, Shirani Bandaranayake, addressing the same audience said: "In 1867 Walter Bagehot commented that, the worst judge is a deaf judge." In this story Justice Salam confirms that judges of our courts can not only be deaf but also blind with sleep.

In fairness to Judge Salam it must be mentioned that he warned the Judges to be attentive at all times. Nevertheless, this leaves room open to question the fairness and the quality of justice meted out to citizens who believe that they have come, in the words of the Chief Justice, to their "Temple of Justice". Can judges who fall asleep on their job deliver justice at the same time? Does this not amount to deception of sorts?

However, it is the stories narrated by Justice C. V. Wigneswaran, in his key note address, that revealed the seamy side of the judiciary. There is one story that screams out for justice. In this story, believe it or not, an innocent man was sent to prison because a Senior High Court Judge didn't like the lawyer who appeared for him. The Judge knew that there was hardly any evidence to convict the accused. So he put words in the mouth of the accused and found him guilty. After that the judge proceeded to give the maximum sentence to the client of his old batch mate at Law College. This Judge has been recently appointed as a High Court Judge.

Misconduct of crooked judges

Incredible? Yes. It's more than that. It's outrageous. Nay, it's criminal. The story stinks to high heaven. It exposes the corruption of the judicial/legal system that is now talking so piously about the independence of the judiciary. Oddly enough,the gathering of the magistrate and judges was focused on the theme of "the independence of the judiciary". This anecdote goes to the heart of the ideal principles enunciated by the legal pundits, from the Chief Justice downwards. The general trend was to expand on the theme of independence of the judiciary as if it is a mantra that should be chanted right now, in this politically charged ethos, to glorify the judiciary.

But theme of corruption in the judiciary that ran as a counterpoint was equally strident. While the high priests of legal morality were intoning their principles lurid stories were told of how judges run amok on the bench. It seemed as if principle were invoked to cover-up the misconduct of crooked judges. No doubt independence is a sine qua non to maintain the integrity, impartiality and the credibility of the judicial system for the public to rely on its fairness to all. But what confidence will it inspire in the public if the judges of the highest court conduct themselves in the most vindictive fashion? How can a Judge learned in the law act like abominable Prabhakaran? It is against all known principles of human nature to send an innocent man to jail just to please the bitter, vindictive cravings of a Judge.

Equally horrifying is the reaction of the entire legal profession that listened to this story. Their indifference to the unjust victimisation of an innocent man is deplorable. Normally, these acts come from political institutions. But for the Judiciary to commit crimes against innocent civilians is unpardonable. How can the highest tier of the Judiciary listen to the plight of an innocent man imprisoned for no fault of his own and not ask for an inquiry? Has the Chief Justice, who was there, initiated an inquiry into the plight of this innocent man and the conduct of the High Court Judge who was later promoted? Or are judges above the law?

Team of black-coats

What has the Bar Association, headed by righteous Wijedasa Rajapakshe, done so far? What does he propose to do, if anything all, in the future, to prevent judges from going berserk on the bench? For how long will our judges be allowed to pervert the judicial system to satisfy their sado-masochistic tendencies? The just thing to do was to report his Law College batch mate to the proper authorities -- the Bar Association, or Bribery Commissioner, or the Judicial Service Commissioner, or the Chief Justice. Instead of which the Judge punishes an innocent by giving him the maximum punishment. Isn't this another case of black-coats, whether on the bench or in the courts, ganging up to protect each other at the expense of the innocent citizens? Will Wijedasa Rajapakshe lead another team of black-coats to dash coconuts demanding justice/compensation for this innocent man? Or will this unnamed innocent victim of a crooked judicial system be ignored because he is not so important as the Chief Justice?

The evidence in this case is unimpeachable because it came from a retired judge who heard it straight from the vindictive Judge's mouth. Here is the full story as narrated by Justice Wigneswaran to judges with the Chief Justice listening:

"There are other interesting cases of judicial bias. A senior High Court Judge told me this about thirty years ago. This Judge had been recently appointed a High Court Judge and sent to this station. A senior lawyer who practiced in that Court had been a batch mate of the High Court Judge at the Law College. The lawyer would daily come into the Judge’s Chambers and wish him “Good Morning” and inquire about his health and conveniences at the Official Bungalow, about his family, children and so on. The Judge attributed the lawyer’s concerns to their friendship at Law College until one day the Judge casually walked up to the window overlooking the pathway within the Court’s premises. The lawyer had just left after inquiring into the health and well being of the Judge. Standing behind the curtain in his Chambers, the Judge overheard the lawyer telling a client in Sinhalese “Work is done. I have given the Judge’s dues. You will be acquitted. You must bring me extra Rs.5000 before evening today after you are acquitted”! The Judge was shocked. On looking into that day’s trial cases he found the one in which his Law College friend appeared, there was hardly any evidence to convict the accused. The lawyer knowing that the accused would be acquitted had made use of the Judge’s name to make a fast buck.

Self-serving principles

"The Judge was furious. What did he do? He while hearing the case put many matters into witnesses’ mouths, made out a case which was not there and convicted the accused sentencing him with maximum punishment. I inquired from him “Sir! Was it correct to punish the client for a mistake made by the lawyer?” He said “May be you are right. But at that time I was furious and until I convicted him I could not control my anger. I refused permission to any lawyer thereafter to come into my Chambers.” Judicial bias thus could be the outcome of anger and annoyance."

It is the conclusion drawn by Justice Wigneswaran in his key note address that is equally repugnant. He dismisses it as "judicial bias" that comes out of "anger and annoyance." No, Sir! It is not simple as that! It is a crime committed against an innocent man by a senior judge of the Sri Lankan judiciary. Obviously, the judge told this to Justice Wigneswaran to prove what a righteous man he was. A mature legal mind trained in the highest principles of law and imbued with a sensitive moral sense would have recognised instantly that the judge was a hypocrite hiding behind his self-serving principles to boost his own ego. Which moral judge would send an innocent man to jail to punish his batch-mate at the Law College? The Judge lets the guilty party (his batch-mate) go scot-free and sends an innocent man to jail just to prove that he is a righteous man to his fellow-judge. Why should the helpless accused pay for the the crime committed by his corrupt black-coated friend? The duty of Justice Wigneswaran was to get his friend removed from the bench for committing a heinous crime and the lawyer disbarred. But he turns a blind eye to his fellow-judge's crime and also allows the crooked lawyer to go on earning easy money through corrupt deals while an innocent man languishes in jail. The law forced this victim to pay twice: 1. he had to pay for the lawyer a bribe in addition to his fees and 2. serve a jail sentence for a crime he never committed.

The Chief Justice addressed the same meeting that day. She was there listening to this story and she and the entire legal profession assembled at this august gathering of magistrates and judges had nothing to say about the victimisation of an innocent man by a Judge of the Sri Lankan courts. Besides, the story is now well publicized with Justice Wigneswaran's speech going on the websites. This must be one of the thousands of injustices committed by the bewigged judges. Neither the President of the Bar Association, Wijedasa Rajapakshe, nor the Chief Justice, Shirani Bandaranayake, who should have reacted instantly had said anything about the conduct of the Judge or expressed any concern about the victims of the Sri Lankan judiciary. Imagine a judge putting words into the mouth of an innocent man deliberately to find him guilty on a charge he had never committed and giving him the maximum prison sentence! Does this judge deserve to sit even on a bench with a hole in the middle in the village toilets?

The narrator Justice Wignewaran too is an accomplice in this crime. For thirty years he kept this crime to himself without reporting it to the Judicial Commission or showing any compassion to the victim of his fellow-judge's wrath. If he is the righteous man he claims to be his first concern should have been to rescue the innocent victim locked up in a jail for no reason at all. He knew that a grave injustice has been done to an innocent man. He keeps his mouth closed all these days and lets an innocent man rot in jail. He revealed this story to his brethren in the judiciary not to right the wrong but to gloss over the act of a fellow-judge who should be in jail instead of the innocent man whom he convicted.

This is not all. The stories he told in all makes you wonder whether the judiciary has any right to claim independence. Here are the horror stories he related to his brethren in the judiciary:

Horror stories

"Let me point out some of the common contributory causes, which lead to judicial bias - Political pressures brought about directly or indirectly. Desire on the part of a Judge to curry favour for his or her future prospect. Pecuniary interest of the Judge in the subject matter of the case before him or her. A desire to patronize any former colleague at the Bar or elsewhere. Inherent tendency in a Judge to show favour to certain classes of cases. Interest of the Judge in one or the other litigating parties for any reason whatsoever. There are many more.

"A Judge needs to be alert with regard to his or her conditioned reflexes when hearing a case. We are all human. But it would do us good if we know ourselves – know our biases, prejudices, predilections and so on. Inter alia gender bias, communal bias, racial bias and political bias have been noticed in recent times.

"I know of a Lady Judge who would not seriously consider the need to have corroborative evidence to support that of the complainant in a rape case, regardless of how reliable the evidence was. I know of a Judge of an Original Court who refused to read a judgment of the Supreme Court produced in his Court by Counsel, which recommended corroborative evidence to support the confession given by the accused in a case under the Prevention of Terrorism (Special Provisions) Act with regard to the actual happening of the event mentioned in the charge sheet.

"The principle there was, even if a confession might be considered to have been voluntarily made, if the act confessed did not take place in reality how could an accused be convicted. Since the Judge refused to accommodate the Supreme Court Judgment in his anxiety to convict the accused, the matter is now in appeal.

"A senior lawyer had played out several clients. While hearing the criminal cases against him I had shown my disapproval of his conduct at some stage. That was good enough for the accused and his lawyer to

say I was prejudiced and have the case transferred to another Judge when in fact the lawyer’s cases were at their tail end after leading so much of evidence. I was annoyed with the transferring authority for not asking me anything or calling for my observations.

I discussed this with Justice Jameel, who was then a High Court Judge. He said “The fact that you are annoyed and angry confirms the fear of the accused. What does it matter if a few cases are less for you? Whether this lawyer will ultimately get convicted or not is not your concern. You have done your part. Just leave it at that!” The lawyer died soon thereafter – due to natural causes of course!"

How can a judiciary that has lost its moral compass ask for independence? Independence for what? To terrorise and imprison innocent citizens?

Sordid practices at Hulftsdorp

Nevertheless, I must congratulate Justice Wigneswaran for his no-holds-barred analysis of the judiciary. His first hand experiences are more revealing than the doctoral theses of those in Law Faculties of our universities. His analysis of the judiciary was clinical, sparing neither the external nor the internal forces that threaten the independence of the judiciary.

His candid narrative exposing the sordid practices at Hulftsdorp reveals the systemic failures of the judiciary. He makes an attempt to balance the external and internal factors fairly evenly even though at the end he comes down heavily on the external (political) factors that impact on the judiciary.

On the current crisis facing the Chief Justice he has taken a cautiously critical stance. He concludes this aspect by saying : "And if I may say so, honest reflection will show that the Judiciary played its role in allowing this to happen." He also sounds a warning note: "As Judges we must remember that manipulating crowds and processions are in the domain of the political animal. Judges who, by virtue of their office, are isolated cannot win that battle easily. The battle that can be won of course is the battle in their domain – the legal domain."

His concluding words were: "You must continue performing your duties however challenging they are, bearing in mind the need to be balanced. You must continue to remain together, for you can be certain that there will be moves to split asunder the unity. You must continue this historic struggle for extrinsic independence. Not just for the judiciary but for democracy."

Quite disappointingly, he did not sound the clarion call to clean up the Augean stables at Hulftsdorp. Obviously, he is willing to brush under the carpet the muck in which his black-coated colleagues wallow and divert attention only to the external factors. If even one tenth of what he says about Hulftsdorp is correct then there is an urgent need to clean up the place from top to bottom. But we know that Justice Wigneswaran is truthful. So will the Chief Justice and the President of the Bar Association get together and initiate action to eradicate corruption within the legal system?

The responsibility is mainly with the Chief Justice. She has heard it all from the horse's mouth. She must have heard worst things on the grape vine before and possibly kept quiet about it. But now that she has heard it will she take it up with the Judicial Commission and the other relevant authorities?

The role of some of the judges under her and her own role can explain, to some extent,why the judiciary has fallen into the lower depths described by Justice Wigneswaran. Her failure to clean up her backyard is an indictment of her role as Chief Justice. As S. L. Gunasekera, the intrepid legal luminary,said,quite aptly, she is "not all Lily White". Her speech at this annual gathering of judicial officers also reveals some aspects of her politics and attitude to the law and the judiciary. Her speech will be examined in the next article.