It may convincingly be argued that, in any democratic system on the face of this earth, there is no power as great as judicial power.
Political power is finite. After all, an elected President or a Prime Minister is regularly subject to the hard test of his or her electoral power. On the other hand, the only remedy against a judge of the appellate courts in South Asian jurisdictions whose arrogance, (or hubris as the Greeks classically referred to it), is such as to invite disaster or ruin or who is incompetent or corrupt, lies in the constitutional remedy of impeachment. This remedy is however, hedged around by so many restrictions and is essentially, so determined by politicians, (Sri Lanka being a good example), that it is almost impossible to work in actual practice.
Discipline of the judiciary
That said, the system provides for the disciple of lower court judges by vesting it in the hands of a Judicial Service Commission (JSC) which, in Sri Lanka comprises the Chief Justice and two other judges of the Supreme Court. The JSC itself has not been bereft of controversy; recently two judges of the JSC resigned due to severe differences of opinion with the Chief Justice on the manner of disciplining the lower judiciary. Earlier, missions by the International Bar Association to Sri Lanka in November 2001 had found credible evidence of the removal of some judges without proper recourse to an inquiry or disciplinary hearing.
The most Recent Communication of Views by the UNHRC
This week, we also heard about the 11th Communication of Views issued against the Sri Lankan State by the United Nations Human Rights Committee in a Communication filed by the former District Judge of Negombo, regarding the denial of his right to a fair hearing and denial of access to public service as a result of an inquiry conducted by the JSC. (Communication No. 1376/2005, Date of adoption of views: July 24th 2008). The finding of the Committee was based primarily on the failure of the JSC to provide the author of the Communication with copies of the proceedings from the first hearing before the JSC as well as the findings and reasoning behind the decision of the Committee of Inquiry appointed by the JSC on the basis of which the author was dismissed.
It was observed by the Committee that there was no justification for the current Rule 18 of the JSC rules, which state that "Copies of reports or reasons for findings relating to the inquiry or of confidential office orders or minutes, will not, however, be issued." The Committee noted that there is no justification for the failure to provide judicial officers with the reasoning for the findings made against them. Consequently the dismissal procedure was found not to respect the requirements of basic procedural fairness, was unreasonable and arbitrary, amounting to a violation of article 25 (c) of the Covenant. Looking at Improvement of the System.
As long as Sri Lanka's accession to the Optional Protocol to the International Covenant on Civil and Political Rights (in terms of which Sri Lankans lodge individual Communications to the UN Human Rights Committee) remains in force, this country will be judged on the international human rights law sphere by the negative pronouncements of the Committee. This is a reality that no amount of angry domestic rhetoric can deny.
Indeed, it would be a far better expending of energy to address the substance of the Communications delivered by the Committee and examine the extent to which our domestic systems could be improved. There is no doubt that the fair and effective discipline of the judicial service-from the highest to the lowest judges- is of immediate importance. Linked to this debate is the need to enact a Contempt of Court Act. A draft Act had been approved by the Bar Council of the Bar Association of Sri Lanka on 25th February 2006 and forwarded to the Government shortly thereafter. It is puzzling as to why this has not progressed thereafter.
Questions of Justice and Fairness
In the end, ordinary people's grievances need to be addressed impartially, independently and fairly when they are taken to court.
A judicial system that is dysfunctional either towards judges themselves or towards litigants is far worse than corrupt or unjust political rulers. This is a question that should concern all citizens and not merely the legal community in this country.
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