Protect integrity of the judicial system
Posted on November 13th, 2012

S. Akurugoda

Today we are witnessing a possibility of  rapid deteriorating  of the integrity of  the country’s highest institution that interprets and  applies law in the name of the state, as never before.   Although there are three institutions in the country with highest order under the doctrine of separation of powers , Executive, Legislature and the Judiciary, there should not be a question about the ranking of the powers of the three institutions. The Executive of the country elected by the people is the leader of the country, as a whole, and he is responsible to the people of the country for the enforcement of law.  He has the power to appoint a Prime Minister, a Cabinet of Ministers of the Legislature  and  chief justice of the Supreme Court.   The Legislature, the representatives of the people, is responsible for making the law. The Judiciary interprets and applies law. The Executive has the powers to dissolve the Legislature too. The three institutions cannot run independently without communicating with each other.

For the first time in the legal history in the country, the Secretary of the Judicial Services Commission of Sri Lanka, who is a government employee made a statement in public  via media to say that there are political interference to the judiciary.  As a responsible public servant, the secretary should have refrain from making such a statement in public.  He should have attempted to resolve the matter internally. 

Failure  to deliver the decision of the supreme court on the  ‘Divinaguma’ bill to the Speaker of the House as per the normal practice has,  no doubt,  coursed another  rift between the three institutions. As the country’s law applying  institution and the interpreter of the constitution, the office of the highest judicial system cannot be expected to made such errors. This has led the Speaker to denounce the action of the responsible people  for not following the accepted norms of communication between the Judiciary and the Legislature.  

No one should be above the law including the members of the judiciary. The fourteen  charges laid against the Chief Justice in the impeachment motion include financial misappropriations among many other apparent serious charges.  When charges of similar nature are made against any other public servant,  the suspect is subjected to  interdiction pending an enquiry. However, the legal concept that the guilt of an accused person cannot be presumed and that they must be assumed to be innocent until proven otherwise shall be followed.

The latest development is the media release on behalf of the Chief Justice in response to the impeachment motion against her.  This is not the first time that the office of the Chief Justice of supreme court is facing an impeachment motion.  The first ever impeachment attempt against judiciary took place in 1984 when J. R. Jayawardane  attempted to remove Chief Justice Neville Samarakoon. There were two other impeachment motions against judges of the Supreme Court during that period. Few years ago, UNP led opposition brought an impeachment motion against Chief Justice Sarath N Silva. None of those judges attempted to defend themselves publically via legal firms or created a head-on collision either with the legislature or with the executive, like the one we are witnessing today.  As per the procedures, a judge facing an impeachment  has to appear before the Parliamentary Select Committee, personally, to defend the charges laid against him/her.  The impartiality of the courts of law is questionable when a  legal firm is appearing on behalf of a judge, due to the possibility of the same legal firm appearing for several other clients within the same courts of law.

Meanwhile,  the way things are going on, the impeachment motion has become a political battle between the government and the opposition. The BASL  and other groups of lawyers headed by well known politicians and supporters of the opposition  are in the forefront of the battle.

Members of the judiciary are also human beings. No person is expected to be perfect.  Members of the supreme court are not elected periodically like  parliamentarians. Parliamentarians are periodically elected or rejected by people. Thus the law should be enacted to keep the officers of the judiciary who are on charge of malpractices (until proved guilty or innocent ) away from courts to maintain the integrity of the judicial system. There must be a way to remove judicial officers if found guilty of corruptions similar to any other government employees without paving the way for the bankrupt politicians or any other interested groups looking for opportunities to destabilise the country and to take undue advantage of the situation.

22 Responses to “Protect integrity of the judicial system”

  1. NeelaMahaYoda Says:

    Main problem with the judiciary in Sri Lanka is that they really do not appreciate the condition by which conflict of interest can hamper fair delivery of justice. This is a situation that has the potential to undermine the impartiality of a person because of the possibility of a clash between the person’s self-interest and professional interest or public interest.

    We can learn a lot from legislations used in developed world. Take for example in US, US has a strong legislation to prevent Conflict of interest situations in government departments. The private companies have their own legislations developed for fair operation of their respective businesses.

    Disqualification Required by Conflict of Interest Statute in US is very much applicable in the present situation in Sri Lanka.

    In US, a criminal conflict of interest statute, 18 U.S.C. § 208, prohibits an employee from participating personally and substantially, in an official capacity, in any “particular matter” that would have a direct and predictable effect on the employee’s own financial interests or on the financial interests of:
    • the employee’s spouse or minor child;
    • a general partner of a partnership in which the employee is a limited or general partner;
    • an organization in which the employee serves as an officer, director, trustee, general partner, or employee; or
    • a person with whom the employee is negotiating for or has an arrangement concerning prospective employment.

    Executive branch employees have a continuing obligation to take the actions necessary to comply with ethics laws and regulations concerning conflicting financial interests and impartiality. Executive branch agencies are required to educate employees about these and other ethics provisions.

    As an Engineer, every two years I have to undergo an on-line training session and a test to get my certificate renewed.

    Similarly for doctors a new law has been introduced to restrict their activities with drug and pharmaceutical companies.

    Regulation for doctors says before taking part in discussions about buying or selling goods or services, you must declare any relevant financial or commercial interest that you or your family might have in the transaction.

    The regulation says, If you have financial or commercial interests in organisations providing healthcare or in pharmaceutical or other biomedical companies, these interests must not affect the way you prescribe for, treat or refer patients.

  2. Kit Athul Says:

    NMH, thanks for the comments. Don’t forget about Genaral David Petraeus, he resigned before going in front of the Congregational Committee. If he didn’t then he would have been impeached. And no pension etc. No political system in any country is free from faults, but in SL they can manipulate the system if one has money.

  3. Kit Athul Says:

    I think S. Akurugoda is not taking in to account of the fact that the UNP under JRJ was a totally different party to what it is today. After JRJ the UNP was totally disintegrated. Late Lalith Athulathmudali, predicted this at the time when he resigned from the UNP to form his own party. If Pramadase was the president today, then he would get many killed to silence them. Take for example Attorney General Sunil Silva, when Pramadase thretend him he resigned and took his mother and his family to Australia. When Pramadase thretned General Kobbekaduwa, he took it as a joke, see what happened. Today under MR nothing like that will happen. MR is going by the rule book of impeachment.

  4. Dham Says:

    Under Premadasa no judge would dare to go against him. He was an elected dictator. People really felt freedom after his death.

  5. nandimitra Says:

    The problems of Sri Lanka started with the 78 constitution which was described by JR himself as that by which there only thing he could not do was to make a man a woman and vice versa. This constitution and amendment 13 has disenfranchised the people and made the President an elected Dictator as expressed opinions on Premadasa etc. The answer to most evil in this country is the repealing of the constitution. The corally to that is the the cause of most evil in Sri Lanka is JRJ who was hero worshipped when he was in power. This unfortunately is the greatest weakness of the sri lankans. Sycophancy unfortunately makes a mockery of Democracy. This we see, even in the comment side of Lanka Web.

  6. dhane Says:

    Kit Athul & Dham. Thanks for telling the truth after many years of Premadasa the dictator. Hope Sajith will read your comments. Premadasa started his crusade after UNP late General Secretary Harsha Abeywardena’s demise. We know very well immediately after Premadasa “Beeshanaya” was over.

  7. Dham Says:

    Nandimitra,
    I don’t agree. It is the misuse of powers and more and more greed creeped into the minds of the leaders that caused the problems. If not for the powers, it would not be possible to win the war. President is elected but dictators are born and bred. When the dicator gets elected ( like Hitler ) no one’s fault.

  8. Lorenzo Says:

    Premadasa RUINED the UNP with third class street rowdies.

    UNP was NEVER a party of “duppatage itawata”. It was never a party of Soththi Upalis, Gonawala Sunils and Sirisena Koorays at its top. They were previous at the BOTTOM.

    UNP was a party of KURUNDUWATTA not KESELWATTA.

    Only backboneless faggots in the UNP survived Premadasa. That is the curse of UNP.

    UNP should get Namal Rajapaksha as its leader to revive it. No joke. He has UNP attitudes. Makes a BETTER URINEPEE leader.

  9. Lorenzo Says:

    MR has Nalanda upbringing.

    NR has ST THOMAS upbringing. He is into F1, street racing, fast cars, etc. Nothing bad about it. But they are more appealing to the UNP crowd.

  10. Dham Says:

    MR went to Thurstan (not Nalanda) when he moved to Colombo.

  11. Kit Athul Says:

    Dham, thanks for the correction to Lorenzo comment. MR went to Thurstan.

  12. Krishan Says:

    If the Lankaweb is truly concerned about the Sri Lankans and citizens of Sri Lanka come forward and protect the independence of the Judiciary. Politicians change time to time where as a nation has to survive for several millenniums. When the independence of the Judiciary is threaten fundamental rights of all citizens including that of all of you and your friends and relatives is threaten. Real patriotic individuals speak behalf of citizens of Sri Lanka.

  13. Lorenzo Says:

    Krishan,

    The Independence of the judiciary is threatened NOT so much by politicians but from WITHIN.

    CJ is married to a BIG CROOK whom she is trying to protect at ALL COST!

    CJ’s son makes public THREATS!!

    Judiciry’s INCOMPETENCY in WRONG decisions about UNITARY SL is a threat to national security. These are the REAL matters for patriots.

    Impeaching CJ is PART of democracy and independence of the judiciary. That should happen. Otherwise CJ becomes the NEW DICTATORSHIP.

    At least people can elect and send home the politicians. But not CJ!! That is why impeachment by PEOPLE’S ELECTED REPRESENTATIVES is important to have a balance.

    All patriots must support the impeachment.

  14. Marco Says:

    The author chose the headline “Protect integrity of the judicial system” and then chooses to shoot oneself in the foot with the rest of the analysis.

    First para- Who appointed the CJ ? The Judiciary interprets and applies law.: irrespective how unpopular that interpretation could be.

    Second para- As a responsible public servant, the secretary of (JSC) should have refrain from making such a statement in public. In Sri Lanka all public servants make public statements. Not sure which is worse when a public servant makes a statement in contravention of the Constitution. I’m sure we all know who that is!

    Third para-Failure to deliver the decision of the supreme court on the ’Divinaguma’ bill to the Speaker of the House.
    Would you not call that a mere technical issue of minor importance as long as the Speaker of the House received the decision. In the same way the glaring errors and anomalies in the Impeachment Motion being of irrelevance?

    Fourth para-When charges of similar nature are made against any other public servant, the suspect is subjected to interdiction pending an enquiry. Think we recall a murder suspect who is currently under going medical treatment still enjoying the privileges of an MP. It’s Murder!
    The alleged financial misappropriation is against the CJ and her husband who were both appointed by the Executive!

    Fifth para-“The impartiality of the courts of law is questionable when a legal firm is appearing on behalf of a judge, due to the possibility of the same legal firm appearing for several other clients within the same courts of law.”
    You are not serious! Fundamental rights of all citizens (whether Judges, Presidents,Pavement Hawkers, Bandas, Chelvas, or Hussains) to have legal representation. Two of the PSC members had adverse judgements directed by the SC under the direction of the CJ. I don’t see these two stepping down do you?

    Protect the Integrity of the Judicial System?

  15. Naram Says:

    Krishan is right . If the CJ still possesses an iota of respect for the independence of the judiciary, she must resign with immediate effect without claiming negligence to explain umpteen bank accounts with so many millions. The smell of corrution from office of CJ is overpowering.

    Sri Lankans should not accept gross incomptence on top of vile forms corruption.

  16. Kit Athul Says:

    Now UN wants to challenge SL Parliamentry procedures. UN special Rapporture Gabriel Knaul, says Parliament mut not carry out impeachment procedure for CJ

  17. Dham Says:

    “smell of corruption” is not enough, it should be proven.
    If the smell coming from CJ is can be felt what about the open septic tank smell of ministers people talking about for years ?

    Having said that, there is a danger that CIA have infiltrated out justice system and they have bought CJ few more. Behaviour of Sarths (Ponseka and Silva) very suspicious. International Zionists are making big noice now on this impeachment, which a SL internal matter and 100% constitutional.
    Zionist are trying to make MR = Sadam

  18. NeelaMahaYoda Says:

    Kitul
    GOSL should strongly react to these types of attempts made by every Tom, Dick and Harry in the UN to fulfill their whims and fancies about our constitution and parliamentary procedures.

    If this procedure is not acceptable they should first get rid of American Impeachment procedure and repealing of criminal conflict of interest statute of US, 18 U.S.C. § 208, which prohibits an employee from participating personally and substantially, in an official capacity, in any “particular matter” that would have a direct and predictable effect on the employee’s own financial interests or on the financial interests of:
    • the employee’s spouse or minor child;

    • a general partner of a partnership in which the employee is a limited or general partner;
    • an organization in which the employee serves as an officer, director, trustee, general partner, or employee; or
    • a person with whom the employee is negotiating for or has an arrangement concerning prospective employment.

  19. Marco Says:

    The exact words used by the UN special Rapporteur on Judiciary, Gabriela Knaul stated:

    “I urge the Sri Lanka Government to take immediate and adequate measures to ensure the physical and mental integrity of members of the judiciary and to allow them to perform their professional duties without any restrictions, improper influences, pressures, threats or interferences, in line with the country’s international human rights obligations,”

    “Judges may be dismissed only on serious grounds of misconduct or incompetence, after a procedure that complies with due process and fair trial guarantees and that also provides for an independent review of the decision,” she stressed. “The misuse of disciplinary proceedings as a reprisals mechanism against independent judges is unacceptable.”

    “I urge the authorities to reconsider the impeachment of Chief Justice Bandaranayake and ensure that any disciplinary procedure that she might have to undergo is in full compliance with the fundamental principles of due process and fair trial,”

  20. Lorenzo Says:

    SB will be given a fair trial ACCORDING TO THE SL LAW (not Indian law!!).

    SB is incompetent. There is evidence of misconduct. So impeachment is right.

    Looks like SB is in a cartel of Gabriela Knaul, etc. When the servant is in trouble, the master comes to his rescue!!

  21. Lorenzo Says:

    I urge the authorities to GO AHEAD WITH the impeachment of Chief Justice Bandaranayake and ensure that any disciplinary procedure that she SHOULD undergo is in full compliance with the fundamental principles of SL law.

    – SL Citizen Lorenzo

  22. Marco Says:

    22 new PC’s (President’s Counsel) took their oaths today before the CJ, SC judges. 22 being an unprecedented high number of PC’s appointed in any one year.
    Perhaps, one is expecting retirements, resignations, sackings in the Judiciary or a “majority”?

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