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"Big price to pay if judicial independence is ignored''
By Rajpal Abeynayake
Lord Brennan QC who was in Sri Lanka at the request of the Intentional Bar Association in August 2000 to investigate and report on the rule of law in Sri Lanka, was again in the country last week as the keynote speaker at a symposium titled "The significance of the independence of the judiciary for democracy and the peace process in Sri Lanka.'' The symposium was headed by Prime Minister Ranil Wickremesinghe and Lord Brennan. The book "Unfinished Struggle'' authored by Ravaya Editor Victor Ivan was launched at this event.

The Sunday Times interviewed Lord Brennan after the event, on the subject, independence of the judiciary in Sri Lanka, and related issues:

Q: There were some rather interesting comments made from the region where I was seated when you delivered your lecture today, that these (constitutional concepts such as independence of the judiciary) are after all the legacies of the British - and that you are probably telling us how the British legacy was misused. Are there any parallels to the situation here with regard to the independence of the judiciary, that you can think of in Britain?
Lord Brennan: Let us forget about Britain, what's important is that there is a standard for judicial independence for all countries. This is the standard that I enunciated in my lecture today. These are standards that are applicable anywhere in the world, be it Britain or your country, and I think any educational institute for judges couldn't possibly disagree that these are good and fair standards. What you should ask yourself is whether all these standards for the protection of the independence of the judiciary are present in your country?

Q: To what degree are these standards present in Sri Lanka in your own assessment?
A: As far as some of these standards go, your country is certainly not having them. For example is there a code of conduct for the judiciary? There isn't, even though similar codes of conduct are available in countries such as Malaysia, Pakistan and even Bangladesh. It focuses the attention that your standards should reflect those comparable in the region.

Q: There was a lot said today about the kind of judiciary this country should have, particularly if there would be constitutional changes envisaged in the near future.
A: It is a complex process, and these issues should be brought into the public debate - but all these changes cannot be envisaged in a situation in which there is more to be done on terms of economic reform in your country. Independence of the judiciary is not going to mean much to the average Sri Lankan if he is to be on an empty stomach.

There is no quick fix - it is an issue which should be brought into the public debate, and which deserves a lot of time to be spent on.

Q: But it appears that the issue of the independence of the judiciary was tied repeatedly to the peace process. It could be said arguably on the other hand that these two should not necessarily be tied; that they are two separate issues.
A: As your Prime Minister said in his speech today, there was twenty years of conflict in this country, and he thought that there should be priorities, and peace is definitely a priority when one is talking of a twenty year conflict process….

Q: But peace is a long process - - and one message that seemed to come across today, perhaps inadvertently, was that the independence of the judiciary should be kept on hold, while the issue of the conflict is resolved. Is it appropriate to keep such an important issue on hold - shouldn't there be a simultaneous process, don't you think, that address these issues in tandem?
A: It is too premature to say what form the judiciary will take in the future considering the constitutional changes that are bound to come-up with the progress of the peace process. Therefore it is too premature to decide what form the judiciary will take in the future.

The issue of the independence of the judiciary is so important that it needs separate careful consideration. The public point of view should be sought in a national conference on the judiciary - and there should be a public exchange of views.

It is upto civil society, the community of lawyers and the NGOs to stimulate interest on what sort of judiciary should prevail ultimately in your country.

Q: Even so, isn't there an element of getting the issues mixed up to some extent - at least going by some of what transpired at today's symposium on the independence of the judiciary. First we have the judicial structures - the issue of what kind of judiciary we are going to have in the future, as you said, with envisaged constitutional changes if they take place. But apart from this is the issue of personalities. What kind of judges do we have, are they fit to hold office? Do issues of integrity disqualify certain judges from holding office. That is a separate issue. Didn't we get these two issues mixed up?
A: You are right in saying that if there are bad judges there a can be no independence of the judiciary. But the standards for maintaining the independence of the judiciary cannot be sustained if there are no mechanisms to ensure that there is no interference with the power of judges, and that there is no abuse of power that affects the lower courts. But, recommendations that have been made against certain senior judicial officials cannot be held in timeless abeyance - they must be dealt with.

Q: There is not much point in hiding the real issue under a veil - because all the speakers who spoke today at the symposium including you spoke primarily on one issue - which is the issue of the suitability of the current Chief Justice of Sri Lanka to hold that post. What is the bottom line on this issue?
A: There has been a clear expression of opinion. The order of seniority of judges should not be made to stand on its head for instance. The opinions on this state of affairs has been made clear in the IBA report of 2000.

Q: There has been some measure of debate within the country, about the suitability and appropriateness of the constitutional process to remove a Chief Justice from office. There has been some measure of debate about the Select Committee process, which our constitution stipulates for a Chief Justice to be removed.
A: Your constitution would echo the practices of many countries in dealing with a situation such as this. Even a Chief Justice needs to be able to show cause and exonerate himself, and the impeachment process that you have in your constitution fulfils these requirements.

Q: But there has been some measure of concern among certain quarters that the select committee process is flawed, as the politicians who comprise the select committee are themselves flawed. Some of them are out on bail - on all sorts of charges.
A: If there is a question about the quality of the legislature, then the people should select a new set of parliamentarians, but you have a constitutional process that needs to be followed!

Q: Do you think that enough international pressure has been brought to bear upon the Sri Lankan authorities regarding the issue of the Chief Justice, or do you think such pressure is inappropriate as this is a domestic issue. For instance, there has been a question over the UN rapporteur on the independence of the judiciary and whether it was appropriate for him to say that the Chief Justice should step down from the bench until the issues regarding his ability to continue are resolved.
A: There has been international opinion - it is you who talked of international pressure. International opinion has been clear on this issue….

Q: ….but has it resulted in a lot of talk, and no work. Has it been a lot of discussion about why the Chief Justice should not continue, with no real action in pursuance of this objective…
A: …all that can be said is that finally the citizens of this country should ensure that there is justice for all Sri Lankans on this issue - - and they should ultimately ensure that there is action on this issue. All that can be said is that if they let this issue slide - there will be a heavy price to be paid by them.

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