ICJ report perspectives on the Independence of the Judiciary

A warning to our policy makers

By Kishali Pinto Jayawardena

It looks as if the comments of the three eminent observers from the International Commission of Jurists (ICJ) who visited Sri Lanka last September could not have come at a better time. As the public marvel over revelations a la Mahanama Tilekeratne amidst an unholy clash of the police, the judiciary, state law officers and their other black-coated colleagues, it is apparent that once the dust settles, there would be no single winner or loser. What is however certain to suffer is the integrity and overall credibility of the legal system itself.

Thus it is that the timing of the ICJ report cannot be more fortuitous. The observations of the three-member team comprising Lord William Goodhart Q.C., former Chief Justice of India Justice P.N. Bhagwati and a member of the Judicial Service Commission and the Law Commission of South Africa, Phineas M. Mojapelo are succinct and couched in refreshingly non-legal language. Their focus is on the country's status with regard to the independence of the judiciary, the legal profession and the administration of justice. Sri Lanka is not given straight A status. Rather, it seems that a down graded B is in order.

High marks are however given for specific areas, as for instance with regard to the independence of the judiciary, where the rating is appreciably high. The conclusion of the ICJ Mission is unequivocal. " There is a strong culture of judicial independence in Sri Lanka. The Supreme Court, in particular is vigorously independent. While it took some time for it to get used to the exercise of its fundamental rights jurisdiction under the 1978 Constitution, it now exercises that jurisdiction freely and effectively."

Several recent decisions of the Supreme Court that were critical of the executive are specifically mentioned. These include the Provincial Councils Dissolution case, the Broadcasting Authority Bill case, the liquor licences cases and the Sirisena Cooray case.

" There are ( however) some matters of concern. …..we are worried that the President has made a number of public statements critical of the judiciary - for example- after the Cooray case, she made what was described to us as intemperate remarks about the judiciary during a question and answer session on television" the three members remark.

Essentially, what is at issue here is the need for executive sensitivity towards the judiciary and the workings of the legal system. Instances where this sensitivity appeared to be lacking are singled out. The ICJ Mission makes a reference to the "rather Solomonic judgement" of the Supreme Court in the Shirani Bandaranayake case, where the Court is said to have laid down guidelines for future appointments, while avoiding the constitutional crisis which would have resulted had the appointment of Justice Bandaranayake been set aside.

Nevertheless, the Mission is definite that the present practices of judicial appointment be changed. They suggest that the Judicial Service Commission be selected by methods that make it more independent, and that appointments be made to the higher courts by the Commission or by the President from a list of short names selected by the Commission. In the alternative, it is recommended that the President consult the Chief Justice before making appointments and that the two seniormost judges of the Supreme Court should, with the Chief Justice, make up the Judicial Service Commission. Again, delays in filling vacancies to the appellate courts in politically sensitive situations are critiqued as are present procedures for removal of judicial officers. In the latter case, it is suggested that instead of a parliamentary inquiry into the alleged misconduct or incapacity of a senior judge, the inquiry should be heard before an appropriate judicial body.

Particularly severe note is meanwhile taken of the laws delays. While delays in appeals are bad enough (taking up to 4 or 5 years), the delays in the exercise of the Court's original habeas corpus jurisdiction are termed as "horrifying".

Some of the blame is laid at the door of lawyers who request adjournments for their own convenience, but a more serious cause of delay is identified to be the shortage of judges in the Court of Appeal. The ICJ Mission has indeed gone so far as to recommend that there ought to be an increase in the present twelve members of the Court or that there should be a use of retired judges on a part time basis.

Meanwhile, the executive receives short shrift in the area of emergency laws.

" We are not dealing with a government which deliberately flouts or ignores human rights. There remains however, much that needs to be done to improve standards of observance of human rights and to punish past infringements" the ICJ observers say.

A basic thrust of their reasoning is that executive power under emergency continues to be far too widely phrased. It is pointed out that the Public Security Ordinance and the Prevention of Terrorism Act creates a regime of its own with the minimising of safeguards protecting ordinary people. Interestingly, they also look askance at prevalent notions that a proclamation made by the President under emergency cannot be challenged in court. Their argument is that this bar is quite wrong in a context where the proclamation of a state of emergency confers extremely wide powers on the President that are much more easily abused than her normal constitutional powers.

" While we believe that the President should have considerable discretion in deciding whether or not a state of emergency exists, her decision should be at least based on a rational belief that a state of emergency exists or is imminent. We therefore recommend that the ( law) be amended to permit a proclamation under section 1 to be challenged on the ground that there is no reason to believe that a state of emergency exists or is imminent." they add.

The point is further made that new regulations under emergency should be laid before Parliament for approval, in view of the inadequate system for publicising changes in the regulations where even Members of Parliament are sometimes unaware of such changes. It is also suggested that there should be a wider power to challenge the regulations on the basis that there is no ground (for example) for the President's belief that a particular regulation is necessary or expedient in the interests of public security.

Predictably, the ICJ Mission has stated that powers of detention under the Prevention of Terrorism Ordinance should be repealed, going by the reasoning that it is confusing and quite unnecessary to have two separate and parallel detention regimes operating in the country. The Supreme Court is however said to have shown independence and good judgement in balancing the interests of national security against the fundamental rights of its petitioners. In the opinion of the Mission, it is this that has averted some of the most serious potential consequences of executive efforts to oust the jurisdiction of the courts over emergency regulations and PTA.

The ICJ Mission has called for change to the country's legal system in order to ensure a healthier working of that system. Their recommendations are not startlingly new. On the contrary, they echo suggestions that have been repeatedly made by national level activists and lawyers in the past. The ICJ report in which the three member mission has not minced their language about issues that trouble them amounts to a much needed international endorsement of this need for reform.

The Sunday Times case: What the icj has said

Extracts from the report of the ICJ Mission, which specifically mentions issues connected to the case of criminal defamation against the Sunday Times and other matters relating to judicial appointments to the appellate courts and the Judicial Service Commission, are reproduced below;

The Appointment of the Judiciary There has also been criticism of delays in filling vacancies. Vacancies which occurred in the Court of Appeal in April and December 1996 and March 1997 were not filled until July 1997, when three new appointments were made. One of these was the senior High Court judge, Upali Gunawardena, who had until immediately before the appointment been engaged in a prolonged trial of the editor of the Sunday Times on a charge of criminal defamation of the President, of which he was found guilty. This inevitably led to speculation that the appointments had been delayed as a threat to Justice Gunawardena.

It may well be that the appointments were delayed in order to preserve the seniority in promotion which Justice Gunewardena, as the senior High Court judge would have expected; but even so, it is unfortunate that the vacancies were left open for so long, particularly since the Court of Appeal is notorious for its delays. The problems and the suspicions could have been avoided if (as is the case in some other countries) judges were permitted on promotion, to complete hearing the case on which they are currently engaged. This leads to the wider question whether the current laws and conventions governing the appointment of judges of the appellate courts and the High Court are satisfactory. There are two main criticisms- first, the fact that the President's power to make appointments is not constrained ( at least formally) by any obligations to consult or obtain the concurrence of any other persons and is therefore open to abuse; and second, that the emphasis given to seniority results in promotion on the ground of long service rather than merit.

It is of course true that promotion by seniority, though worse than promotion on merit, is preferable to appointment based on political partisanship. Thus, a strong convention of promotion by seniority (such as exists in Sri Lanka) may deter the person with the power of appointment from making partisan appointments and may increase the independence of the judiciary by reducing the fear that decisions which displease the government may lead to the withholding of promotion. Under the present system of appointment in Sri Lanka, with no formal restrictions on the President's power of appointment, but with a strong culture of judicial independence, we believe that a convention of appointment by seniority does more good than harm. However, we believe that appointment on merit through selection by an independent Judicial Service Commission or from the President from a short list of names selected by the Commission, is a better system. We draw attention to the South African system, where the Commission includes members selected by the judiciary, the legal profession and opposition parties as well as the government……..

…By another convention, the two most senior judges of the Supreme Court are appointed to sit with the Chief Justice on the Judicial Service Commission. Here again, there has been another recent departure from convention, since the two most senior judges- Justices Mark Fernando and Amarasinghe - have not been reappointed after the conclusion of their first terms of office. These two judges have a particular reputation for independence and there is concern that this may have been a reason for not re- appointing them. Women and Tamils are under-represented on the bench. Justice Shirani Bandaranayake is the only woman judge of the Supreme Court.

" …We recommend that the system of appointment and promotion of judges would be improved by selecting the Judicial Service Commission by methods that will make it more independent and by requiring appointments to the higher courts to be made by the Commission or by a list of short names selected by the Commission. If the above proposals are not adopted, constitutional force should be given to the conventions that the Presidents consults the Chief Justice before making appointments and that the two senior judges of the Supreme Court and the Chief Justice make up the Judicial Service Commission. The Secretary of the Judicial Service Commission should be appointed by the Chief Justice or by the Commission and not by the President. In making appointments, the desirability of increasing the number of women and Tamil judges should be borne in mind.

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