Columns

Okay, so I plead nolo contendere. What does that mean? Who knows! I picked it up only the other day. When confronting eminent counsel, particularly if they carry the tag “Minister of Justice” it is best to be armed with a foreign phrase or two lest the black-coated fraternity delude themselves that the rest of us are as dimwitted as some of their colleagues who keep them company on the parliamentary benches.

It was not too long ago that a public-spirited citizen probably with time on his hands and his tongue in both cheeks thought it his patriotic duty to inform the citizenry that the peoples’ representatives who entered parliament were not all dullards as many thought them to be.

Although some 94 (if my memory serves me correct on numbers) had not approached the hurdle called the GCE “O” Level or failed to clear it, some 60-odd (if I am not inadvertently exaggerating) had somehow passed the “A” level. Some from that bunch of lawmakers are in the current parliament I believe.

I would not have raised this issue of the educational success of those who make our laws, for the laws themselves stand as a beacon of proof of their intellectual dexterity, except that our Justice Minister called Ali Sabry had made a tangential reference during the committee stage of the budget debate recently.

Not having heard of an Ali Sabry in Sri Lanka’s political circles long enough and prominent enough to reach the cabinet I thought I was probably confusing him with one from the Gulf sheikdoms house-hunting in London looking for luxury residences in Mayfair, Park Lane or Kensington now that Covid has knocked down house prices and political reputations here and elsewhere.

But then his words of wisdom could not have found its way into Hansard unless some error had occurred as they are bound to in these unfortunate times. So I read on, entranced by Minister Sabry’s advice to the elected–and some selected–on respecting the judiciary and trusting it to be fair and impartial and I suppose honest and accountable.

Now Mr Sabry should know a thing or two about how to treat the judiciary and those that ‘inhabit’ it, so to say. As the minister said in parliament in case colleagues and others had not studied his potted biography, let alone read it, he has 25 years of legal practice under his belt and is a President’s Counsel to boot.

Admittedly, there are thousands of PCs in this resplendent isle. There was a time not many month ago I have been told, when one could not go into an upmarket supermarket without brushing shoulders with several PCs (President’s Counsel that is not Police Constables) in search of turmeric (kaha kudu) or with tape measures in hand looking for coconuts. But since the coronavirus started spreading in the capital, most seem to have gone into splendid isolation in their strong rooms with sufficient time now to count their millions.

It must, of course, be conceded that a President’s Counsel tag is no educational qualification like an LLB, but still it is proudly flaunted on the family escutcheon. So if I was Minister Sabry, I would not make too much of a play over it for it is presented for many reasons some of which are better left unsaid.

Minister Sabry’s grouse appears to be that some of his parliamentary colleagues–and public too–do not pay sufficient respect to the judiciary and its learned jurists (though he does not specifically say so) but they should do so. Otherwise, it would seem, the public would lose trust in the judiciary.

That should raise a laugh in the marketplace knowing only too well what is being said about the public and private practices in the judicial system which have been exposed time and again in academic studies, surveys and other writings.

The Sunday Times Legal Columnist Kishali Pinto Jayawardena has regularly exposed the frailties, the blatant happenings in our judicial system and the dubious conduct of some within who, working at times in collusion with others, disgrace one arm of our power structure that like Caesars’ wife should not only be above suspicion but above reproach.

Minister Sabry would surely agree that trust cannot be forcibly extracted like teeth. It has to be earned by conduct that befits the holder of office. And there are rules and regulations for judges that restrain them from social conduct that does not restrict the normal citizen.

Mr Ali Sabry must surely be aware of the Bangalore Principles of Judicial Integrity which was endorsed by the UN General Assembly in 2006. If he is not acquainted with it perhaps he might be made aware that from the inception to establish a set of guidelines for the judiciaries, two Sri Lankan were at the heart of it. One was the internationally-recognised jurist Judge Christie Weeramantry and the other was Dr Nihal Jayawickrama, who was the Coordinator of the UN-sponsored Judicial Integrity Group which at first consisted of 15 chief justices or senior judges from the world’s different legal systems.

If the minister expects the citizens of Sri Lanka to trust and respect the judiciary, he is starting at the wrong end. To win that respect the judiciary must earn that respect through conduct that is beyond question. The judiciary must set the stage to win public trust.

One wonders whether the minister is aware that when the UNGA passed the resolution endorsing the Bangalore Principles of Judicial Integrity, it called upon member-states to ask their judiciaries to update their own codes of conduct based on these principles.

That was 14 years ago. What steps have our governments taken to encourage our judiciary to do so? In fact, when a group of chief justices and senior judges met in Vienna in 2018 to discuss further the UN-endorsed Bangalore Principles, Sri Lanka’s Chief Justice of the day intervened during one discussion to admit (without any shame one would suppose) that Sri Lanka does not have a Code of Conduct for the judges and has never had one.

It was not surprising that his admission raised many an eyebrow, for Sri Lanka was one of the oldest of independent colonies with a common law system. There is a code of conduct for MPs though I do not think it is generally observed except perhaps in the breach. Newspaper editors have a code of conduct. But not the judiciary. Why?

Perhaps the Judiciary has all along believed that it is clean, impartial and laden with integrity that it does not need a code of conduct and the people should accept it as such. Perhaps the minister thinks so, too. Otherwise why would he insist that the people not cast aspersions thus denigrating it?

PS. By the way is there one legal definition for contempt of court? Or does each judge decide on his own?

(Neville de Silva is a veteran Sri Lankan journalist who was Assistant Editor, Diplomatic Editor and Political Columnist of the Hong Kong Standard before moving to London where he worked for Gemini News Service. Later he was Deputy Chief-of-Mission in Bangkok and Deputy High Commissioner in London before returning to journalism.)