The recent conviction of a magistrate on charges of entering false information in court documents, fraud and soliciting bribes raises several pertinent questions in regard to our legal system. The question is as to whether this is an isolated case or whether it points to a far greater systemic problem with Sri Lanka's legal system. Anecdotal as well as documented evidence appear to suggest that this is just the proverbial tip of the iceberg, as it were.
It is a pity that the remedy of fundamental rights petition is not available against judicial action. If the Article 126 jurisdiction in terms of the Constitution is indeed extended to cover magisterial actions, then we would see far more cases of magisterial abuse of their powers coming to light.
Magisterial abuse in a
wider context
The case that has recently come to light involves bribery and fraud in no uncertain terms. Yet, magisterial failures in the exercise of their legal duties are far wider in scope. For example, magistrates rarely examine suspects brought before them either under the normal law or under the emergency law following initial police custody and at a later stage in regard to obtaining extension of custody, for evidence of torture. Failures in this regard have been subjected to adverse comment by the Supreme Court as well as the High Court on several occasions. These are also derelictions of duty with equally grave consequences as bribery and corruption as they impinge on the personal liberties of individuals.
Negative perception surveys
Indeed, we would do well to remind ourselves that two recent perception surveys reflecting the opinions of judges and lawyers themselves as to the proper working of the legal system, hardly inspires the public with confidence. These surveys have been subjected to various strictures by discomfited critics, unable perhaps to bear the thought that this country's legal system is not as pristine as they would like to believe. In the first survey conducted by the Marga Institute of Sri Lanka, 87% of court users who were interviewed did not believe that judicial system was always fair and impartial. 80.6% of judges, lawyers and courts themselves opined that judicial system was not always fair and impartial and 83% felt that the judicial system was corruptible with a mere 17% asserting that it is never corruptible.
A perception survey by Transparency International (Sri Lanka) in 2002 also revealed that the judiciary is now considered the third most corrupt institution in Sri Lanka, next to the police and health sector. These are controversial findings that nevertheless invite serious reflection.
The Indian experience
In this context, it is important to encourage free and frank debates regarding the working of the judicial system. For that, we need not only have a Contempt of Court law in place but also a strong public constituency as to why contempt should not be used to block justifiable criticism of the legal/judicial system. This has emerged as a major advocacy issue even in India where the existence of a law has been inadequate to prevent contempt being used by judges to prevent exposure of their own misdeeds. Among the increasingly problematic decisions in this regard, the Madhya Pradesh High Court's ruling of contempt on Rajendra Sail and four journalists for citing a fiercely criticized acquittal by the High Court of the murderers of a popular trade union leader as 'rubbish' and a previous contempt ruling by the Indian Supreme Court on the leaders of the Narmada Bachao Andolan in respect of a judgment by the Court on the Narmada Dam which had permitted the wall of the dam to be increased, stand out.
One writer to The Times of India put it well when he said that 'Justice has become a cynical game of checkers, confined to the theatre of the court. It intimidates dissent and resistance, and to that extent, it derides and uproots democracy, and clobbers people's constitutional rights, human rights, and civic freedoms. If the court is not seen as administering but disfiguring justitia omnibus, it is a sure sign that the whole of the judiciary badly needs either radical overhaul or total overthrow.'
These developments were in stark contrast to the past when Indian judicial attitudes were effectively used in Sri Lanka to urge a more liberal interpretation of the rule of contempt of court. However, it seems as if such reliance can no longer be taken entirely for granted, given recent unfortunately repressive trends in the Indian context as well. The need for contempt to be used in its proper context has thus become evidenced across South Asian courts and several common concerns in this regard have emerged.
Contempt should not be
used to stifle criticism
At least where this country is concerned, the recent conviction and sentencing of a magistrate for corrupt practices that had apparently continued for quite some time without her being brought to brook should be a catalyst to urge a more transparent working of the legal system.
If there had been more transparency, perhaps litigants who had been penalized by this judge might have had a greater opportunity to bring their plight to public notice rather than have it continue unchecked for so long.
Where there is obvious injustice apparent in the functioning of the legal system, the media can and indeed, have a duty to highlight it.
The public should have an equal right to expose judicial misdeeds as it is the court users who have the basic right to ensure that the system is working properly. Prohibiting such scrutiny on the basis of contempt of court undoubtedly achieves little in the long run.
This is the fundamental premise on which reforms to the law as well as changes in judicial attitudes should be urged. |
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