Columns

Sri Lanka’s judicial system has taken a bad beating in recent weeks. This, of course, is not the first time it has been slammed by legal professionals and the public alike.

Naturally the professionals, being more learned in the law (spare me the sniggers, thank you), subject it to greater probity than the public which present specific instances to buttress their arguments.

The other day Justice, Human Rights and Legal Reforms Minister Nimal Siripala de Silva lamented the fact that the people’s faith in the judicial system has eroded. Action should be taken immediately, he said, to restore their faith by cleansing the system.

He claimed that this has happened since the recent release of recordings of conversations between Rajan Ramanayake and a couple of judges. How these recordings taken into custody by the police got into the hands of the media –particularly the so-called social media — within a couple of days of these being ‘confiscated’ by the police is better left to the sleuths from the same or a related division to determine.

Last Sunday fellow columnist Kishali Pinto-Jayawardene in an acerbic and hard-hitting commentary exposed the fallacy of Minister de Silva’s assertion that the “Ramanayake tapes” was the cause of all the evil. She says otherwise. The system was tainted by many — some who adorned the apex court right down to the lowest level in the justice system, prosecutors, and official and unofficial institutions linked to dispensing of justice.

But most of all, Justice Minister de Silva’s lament at the erosion of public faith in justice as dispensed today misses one responsible party to the judicial shenanigans that have been played out over the years, nay decades. That is the burgeoning interference, intervention and influence of politicians that has caused the steady degradation the entire system of justice.

However columnist Pinto-Jayawardene was not ready to omit or ignore the role of the politician in this unholy mess, quoting chapter and verse to expose such perfidy.

Siripala de Silva’s simplistic attempt to throw all or most of the blame at the door of Ramanayake is like dumping all the garbage at Meethotamulla until that mound collapses burying with it the responsibility of those who created the problem or much of it, in the first instance.

If the minister is genuinely interested in clearing up the refuse and not just moving it away to another ‘location’ it is not just constitutional reform that is necessary but to take a harder and sustained look at the issue as a whole and not just bits and pieces.

Many centuries ago the Roman poet and satirist Juvenal wrote, “Quis Custodiet ipsos Custodes”. Who would guard the guards, he asked quite relevantly. He may not have been referring to the judicial system of the day.

Yet if judicial independence and the integrity of those who dispense justice are cornerstones of a democratic society that functions according to the rule of law protecting the rights and freedoms of the people, then it is crucial there should be a mechanism against which to judge the ethical conduct of judges.

If the guards need to be guarded, judges should also be guarded from straying from their oath of office through a system that establishes transparency and integrity as integral pillars of that system.

In fact, there should be an integrated a system that monitors the entire judicial system from top to bottom and horizontally, too.

About two years ago I remember reading an abridged version of a speech delivered by Dr Nihal Jayawickrama, Coordinator of the UN-sponsored Judicial Integrity Group.

In earlier writings, I had raised two issues relating to the functioning of the judicial system. One concerned the lack of a code of ethical conduct for judges.  The other was the frequent recusing by judges particularly in recent years.

Dr Jayawickrama in his speech drew attention to Sri Lanka lacking a code of ethical conduct for judicial officers.

“Although two Sri Lankans were intimately involved in the processes that led to the formulation of the Bangalore Principles of Judicial Conduct, the Sri Lanka Judiciary remains one of the few judiciaries in the world that have failed to incorporate these Principles in a code of judicial conduct of its own.”

One figure Nihal Jayawickrama alludes to is Judge Christie Weeramantry, a world renowned jurist and academic who added lustre to the development and understanding of international law and was Vice-President of the International Court of Justice at The Hague.

I had on two occasions in London listened to Prof Weeramantry’s discourses on the history of judicial systems and how different civilisations contributed to the evolution of international legal systems.

The other person is Dr Jayawickrama himself who had been closely involved in the drafting of the original documents that eventually led to the formulation and international acceptance of the Bangalore Principles of Judicial Conduct.

While the Bangalore Principles increasingly gained international currency, Sri Lanka has done little, if anything at all, to formulate a code of ethical conduct for its judges.

Was it considered too enormous a task for Sri Lanka’s learned judges that they failed to make progress in this regard? Or was there another reason or reasons that prevented the judiciary from preparing and accepting a code while other jurisdictions were falling in line to strengthen judicial integrity and transparency and thereby public faith?

A year or more ago at a conference in Vienna which discussed similar issues, Sri Lanka’s then chief justice reportedly conceded that his country lacked a code of conduct for judges.

A question that concerned citizens and litigants would ask is why? What reason or reasons have prevented the judiciary from adopting a code of ethical conduct when more and more jurisdictions are doing so? Is there some deep, dark secret which the public is unaware of and should know?

Another troubling issue is the manner in which judges named to a bench recuse themselves mentioning “personal reasons” for not wanting to hear a case. It is surely unfair by litigants when cases are postponed because one or more judges have withdrawn citing personal reasons.

On a number of occasions in India this issue of recusing judges has come up with it even being suggested by some Justices that the reasons should be mentioned in open court to be fair to victims and litigants alike.

But these are not the only reasons for the erosion of faith in the justice system. A finger should also be pointing at the Attorney General’s Department which has drawn much flak in recent years. Case files sometimes goes stray or piles up gathering dust.

In recent times, we have witnessed the unusual spectacle of the AG’s department issuing a press release taking to task a judge for a decision in an ongoing case. It is customary for ministers and state institutions to issue press statements to inform the public of developments.

But for the AG’s department to castigate a judge via media releases appears unusual, to say the least.

Many complain of the cost of litigation and the years of delay in settling cases. Another public complaint is the manner in which some lawyers seem endowed with the privilege of having their cases postponed time and time again.

Who ultimately pays for this waste of time, money and resources? The public surely, one way or another!

Nimal Siripala de Silva has been practising law for years when he is not a minister. He knows the drill — from court clerks and up. It is not necessarily constitutional changes that are needed to restore some public faith in the justice system. Ethical conduct, accountability and transparency would be a promising start.

Mr Bumble in “Oliver Twist” called the law an ass. Why blame the asses, pray!