How independent is the Judiciary?
Posted on December 3rd, 2012

H. L. D. Mahindapala

 The following anecdotal  evidence is narrated to test the independence of the judiciary that was supposed to exist before the current contest between Parliament and the Judiciary broke out. The raging  controversy is based on the claim that the Judiciary was independent and the appointment of a Parliamentary Select Committee to probe into the conduct of the Chief Justice Dr. Shirani Bandaranayake erodes the independence of the Judiciary. The following anecdotal evidence presents a skeletal profile of the hidden legal system on which the sovereign people were dependent solely for the rule of law and their share of justice:

 First story: Reminiscing about the good old days at Hulftsdorp a lawyer friend once told me that it was common in his day to see bewigged lawyers getting off their cars and walking down the solemn corridors of red- brick Hulftsdorp, followed by peons carrying heavy legal tomes on their stretched scrawny arms.

 “That is all gone now,” he added ruefully. “Learned counsel do not take volumes to court now. Nowadays they take the short cut, the easy path, by visiting judges at  home with bulging envelopes, offering the kind  of irresistible hard evidence that judges cannot  refuse.”

 Second story: Going  back to the late sixties I remember meeting a cross-section of professionals at the AAA — a popular watering hole of journos, politicos, lawyers, etc.– which was located then just behind Gall Face Flats. I also remember having hot, spicy bites of seer fish or venison, washed down with sips of gin, lime and tonic, with a prosperous  lawyer-politico who was boasting  that he fixes his cases the previous evening before it comes to trial the next morning. I asked him how. “That’s easy,” he said. “I invite ……(all names withheld for obvious reasons) for drinks the previous evening and over one-too-many he hears the evidence and the verdict he would deliver next  morning in courts.” 

 Third story: I also knew a Magistrate’s driver with an exceptional knowledge of the inner workings of court, especially in the art of making vital evidence disappear the day before the case is due to be taken up. Once he made a miris gala, a vital bit of evidence, disappear just like that from the courts store room — a feat that could  have been performed only by some one like Houdini. I have, of course, lost count of the number of times I’ve read or heard of the record rooms of courts going  up in flames, particularly if  it contains files of tax cases of rich big wigs.

 Fourth story: Judges, in cahoots with their mates at the bar, offer liberal extensions to lawyers who postpone their clients cases, over and over again, which, in effect, means the helpless clients pays out  of  their pockets for the needs of the hired lawyers and not theirs.

 Fifth Story: The stories about the former Chief Justice, Sarath N. Silva are a legion. Every lawyer and judge knows how he tyrannised the judiciary and ran it like his own fiefdom. But one story that sticks out  goes right to the top where he colluded with the former President, Chandrika Kumaranatunga,  to hold a secret swearing in for the second time, after holding a public one earlier, with the  sole intent of extending the President’s term in office.

 Sixth story: Chief Justice Shirani Bandaranayake, who has held her sister’s power of attorney for 22 years to manage her investments in Sri Lanka, uses the  power embedded in the office of the Chief Justice to sit in judgement over her sister’s case concerning a property deal, knowing that  she should not  touch it even with a barge pole miles long. Since she, in her defence, claims that the principle of “justice seen to be done” should apply to her, how will the public see this sacred principle in operation when she comes to court grabbing her sister’s case in one  hand and the sister’s power of attorney in the other? Even illiterate Punchi Banda, who lives in remote Yakdessagala and never heard of the existence of Standing Orders or the Constitution of 1978, won’t take two seconds to see through it.

 The anecdotal evidence cited above covers a wide range, from top to bottom. This, of course, is not even the tip of the iceberg. It is only the last tiny flake sitting on the tip of the iceberg. Every practitioner in the legal system knows more than one story which they will not talk about in public because it reflects badly on the integrity and the professional standards. The tragedy — or rather the hypocrisy  (Jesus had a  lot to say about this) — is that these black-coated professionals are the first to pontificate on the unimpeachable standards that must be preserved at all levels to (1) protect the independence of the judiciary (2) rule of law and (3) delivery of justice to the sovereign people.

 With the damning inside knowledge of the goings-on in courts the legal fraternity, which is tearing its hair now about  the “rule  of law” should seriously ask: is Hulftsdorp governed by rule of law or by corrupt, underhand, illegal, immoral practices? Can the judiciary be independent when those in the profession are the first to undermine the independence of the judiciary by selling justice to the highest bidder? The vocal lawyers and moralists are babbling and demonstrating about political threats to the judiciary as if the law-makers are about to pluck judges from their benches and hurl them into the nearest dustbin. But how many of  these lawyers have shown  the same concern to the sovereign people in villages and cities, who have been fleeced by unscrupulous lawyers because of their incompetence, postponements of cases to suit their personal agendas, corrupt practices or by greasing the palm of judges? When have the lawyers fought as passionately as they do now to protect the independence of  the judiciary from the black-coated enemy within?

 When have they ever demonstrated publicly protesting that justice cannot be delivered at the exorbitant fees they extract from the sovereign poor? Which lawyer ever broke a coconut in defence of a penurious villager who had been wronged by malpractices of  lawyers and judges in courts? The Kalu Koat Karayas have invariably been on the side of the rich and the powerful. Justice was constantly bought and sold over the counter at Hulftsdorp. When did the poor ever have the rule of law on their side? On whose side was the independent judiciary? There were intrepid judges (example: T. S. Fernando)  who stood their  ground resisting all pressures but they were few and far between. By and large the judiciary would go with the flow. So will the President of Bar Council, the  ever-so- righteous Wijedasa Rajapakse, PC, initiate action among  fellow black coats to clean up the Augean stables at Hulftsdorp to reform the legal system which he, like his fellow-lawyers, knows is corrupt to the core? Can a corrupt legal system deliver justice to the sovereign people? How can the superficial separation powers at  the top deliver justice to the sovereign people if the process at the bottom on which justice depends is rotten to the core?

 Standing up for the independence of the judiciary does not begin and end with combating  external forces — political, underworld, money bags, reforming outdated and bad laws, etc. These, of course, constitute a part of defending the independence of the judiciary. The struggle to defend the judiciary goes beyond these to the internal factors that corrode the integrity of the judiciary, starting from crooked lawyers and going up to some of the  untrained, lazy, judges who sit on the bench with befuddled heads in the morning after the night before.  

 Independence  of the judiciary also does not mean fighting for the privileges of those in upper  bracket in the official  and  unofficial  bar. If independence of the bar means delivering justice to the sovereign people, without tilting it  in favour of one side or the other, then there are greater issues at stake like protecting the citizens victimized by the tyranny of courts, malpractices of black-coated hypocrites, costs involved in getting justice, impartiality of the judges, incompetence of  lawyers, and generally lifting the standards of the legal profession to  make it user-friendly for the public who have to wait for donkeys years just to get their cases heard, let alone justice. It is the Bar Association that must be in the  forefront of this battle to reform the judiciary to make it independent in a meaningful way to serve the sovereign people. But so far no one has seen lawyers dashing coconuts on behalf of the poor people who had been  denied justice from the exploitative legal system.

 Independence of  the judiciary has had no meaning to the average citizen who had suffered throughout their lives oppressed by the lawyers, judges, and those connected to the legal system. Ask anyone who has come out of the nightmarish legal process and he/she would come out  breathing a sigh of relief never wanting to go back to gruelling process ever again. So far the vociferous cry of “independence of the judiciary” boils down to ensuring the right of those in the legal profession to rake in as much profit as they can with no consideration for the rights of their clients, especially the poor ones, to obtain some measure of justice. If the Bar Association and those black-coated coconut dashers had devoted one fraction of the concern they spend on saving their privileges in the name of  saving the  independence of the judiciary to bring some justice and relief to their poor clients by reforming the legal system, the sovereign people could look up to those on Hulftsdorp hill as valuable and sincere contributors to life, liberty and happiness. But one has to wait and see when — if the day ever comes –Wijedasa Rajapakse, who wants to reform everything around  him, will ever dare to clean up the rot in his professional backyard and restore an independent judiciary free from legal tyranny and corruption.

 It is in this background that respected Justice C. G. Weeramantry’s judiciously couched phraseology directs it censorious force to question the ethics of legal practitioners. In his writing he has been very critical of the legal profession. His latest statement on this aspect goes to the heart of the crisis within the profession. He said: “If a judge fails in his duty of judicial integrity, that entire nation is lost. It is only when the community has confidence in the integrity and the capacity of the judiciary that that community is governed by the rule of law. In other words, you don’t have the rule of law, you don’t have democracy in any community where the judge is lacking in integrity.” 

 Before I place this statement in its local context I must digress to sketch briefly Justice Weeramantry’s role in the Sri Lankan judiciary. Earlier I mentioned that there are two models established at Hulftsdorp: 1) the model of T. S and Mark Fernandos, both of whom adhered to the law and its spirit with redoubtable tenacity to preserve the purity and the integrity of the judiciary; (2) the model at the other extreme  of Chief  Justice Sarath N. Silva which doesn’t need any more elaboration.

 The third model was established by Justice Weeramantry who reached the pinnacle not only in  the legal profession when he was appointed to the highest court  in the world, the International Court of Justice, but also in his scholarly approach to the law, bringing in inter-disciplinary perspectives to enrich the law and serve the sovereign people through the use of the most civilized and humane force available to humanity: the righteous principles of  law. Those who had read his numerous volumes, including the published two volumes of his biography (the third is on the way), will agree that  his legal  philosophy is influenced deeply by religion. Just not his Christian faith but all mainstream religions. He sees religious leaders as the primary law-givers for  mankind and he draws deeply from religious sources to give depth and meaning to the laws of day. One outstanding contribution in this vein is his book titled The Lord’s Prayer  — a path-breaking approach to Christianity from a legal perspective. He delineates the oppressive socio-economic conditions that prevailed in the time of Jesus in Jerusalem and teases out the profound  legal principles enshrined in the Lord’s Prayer.

 He relates  the crises  of modernity to either the neglect or abandonment of the fundamentals contained in the highest principles  of  religions. His criticisms of the crises in environment, politics, science and technology, law etc., are based on religious values and, in his main thesis, he concludes that the security. stability and the future of the good earth — the exclusive home of mankind — can be assured only by returning to the religious values and the life-style prescribed in the sacred texts. By this he does not mean a return to institutionalised religions. He refers essentially to the life-enriching values that can take the individuals lost in crass materialism  into the next level of a moral and meaningful life. It is in this spirit of his concern for humanity and their future that he delivered the landmark judgment which declared all weapons of mass destruction illegal at the International Court of Justice. It was a dissenting judgement no  doubt. Nevertheless, it resonated globally with a lasting moral impact that  is slowly but surely gathering a momentum of its own.

 His attitude towards his own legal profession  too is drawn from religion. Talking about lawyers at a recent dinner in Melbourne I heard him telling another lawyer that he must  read Jesus on lawyers. “You must read Mathew from 23: 22. Jesus was very severe on lawyers.”  True. Jesus had never excoriated any other profession as that of the lawyers. His angry verbal explosion is devastating. He calls them “hypocrites”, “blind fools”, “blind guides”. He tears into them saying: “You snakes, you vipers’ brood, how can you escape being  condemned to  hell?” (23:33). He begins his tirade against lawyers on a quieter tone. This is how the long text begins: The doctors of  the law and the Pharisees sit in the chair of Moses; therefore do what they tell you; pay attention to their  words. But do not follow their practice; for they say one thing and do another. They make up heavy packs and  pile them on men’s shoulders, but will not  raise a finger to life the load themselves. Whatever they do is done for show….” (p.51 — The New English Bible, The  British and Foreign Bible Society in association with Oxford University Press and Cambridge University Press, 1962)

 The source of Judge Weeramantry’s statement referring to “the duty of judicial integrity” can be traced to the Bible. He is quite emphatic when he says: “If a judge fails in his duty of judicial integrity, that entire nation is lost.” He, of  course, is not referring to the current crisis. He is focused in general on the principle of a judge’s duty to uphold judicial integrity. But there is no doubt that it is a principle that applies directly to the Sri Lankan judiciary. He leaves no doubt that judicial integrity must of the highest unimpeachable standards. The last word on lawyers is with Jesus who said: “Alas, for you, lawyers and Pharisees, hypocrites! You travel over sea and land to win one convert; and when  you have won him you make him twice as fit for hell as you are yourselves” (Mathew, 23: 15). The lawyers at the bar indeed have done  just that — dragged Sri Lanka into  another hell!

 The current contest between  the legislature and the judiciary revolves mainly round the issues of “judicial integrity”, “independence of  the judiciary:, “rule of  law”, separation of powers”, leading finally to who has the final legal authority to lay down the law to whom — is it the judiciary to parliament or vice versa? CJ’s team of lawyers is appealing to the courts urging that in the contest between the courts and the Parliamentary Select Committee the Courts must  take away the option available to Parliament to hear the case of the CJ and hand it over to court. “On that selection it is respectfully submitted hangs the future of the independence of the judiciary,” says K. Kanag-Iswaran the counsel for CJ.

 The issue before the Appellate Court is not that of the “independence of the judiciary”. The issue is whether courts can impose a new and arbitrary interpretations of the law and take away the powers vested by the Constitution in Parliament to appoint a select committee and hear the cases of misconduct  of the judges in superior courts, including CJ. In his submission Kanag-Iswaran is openly and unequivocally appealing to the Courts to interpret the law in favour of the Courts. He would not ask the courts to interpret it in favour of the courts if the law had not  given Parliament the right to hear the case. It is  because Parliament is vested with the power of hearing the case of a superior courts judge  that Kanag-Iswarn is asking the courts  to deny that right to Parliament and hand it over to the courts. If the courts had that exclusive right in law he should ask the Appellate Court  to uphold the law — not to interpret it in favour of the courts.

 So if the Courts go out of its way to take away the power of  Parliament to hear cases against judges in superior courts and hand it over to the courts then it would  amount to a dictatorial grab of power to strengthen the hands of judges who can pervert the law with no one  to  check them. It would also question “the independence of the judiciary”. Can a court be trusted to  judge independently, without bias, a case in which the judicial powers constitutionally vested in Parliament is contested with a view to grab it from the legislature and hand it over to the judiciary? Yes, if the judge was like T. S. Fernando. So it is the judges who will be on trial with the issue of the “independence of the judiciary”. 

 Considering that granting judicial powers to an external institution would erode its own powers the natural temptation would be for the courts to interpret the law in its favour. It would  be something like the CJ deciding to hear the case of her sister because she has a stake in the investments of her sister by holding in her hands the power of attorney to the family property.

 As stated earlier, this issue tests the integrity of the judiciary. Given the high voltage electrifying the political landscape, can  the judiciary uphold the rule of law when their interests are at stake? This case as argued by CJ’s counsel, K. Kanag-Isveran, unequivocally concedes that Parliament has the right to hear the case  of judges in superior courts. But — hold your  breath! —  he says that this right must be transferred to courts for the courts to maintain its independence, disregarding  what the Constitution states in black and white. In 107 (3) of the Constitution the law states that Parliament is as good as a court in trying  judges of superior courts ONLY. After the Constitution vested in Parliament the legal power to try judges of superior court in principle it was left to Parliament to structure the mechanism for trying judges which is laid down in Standing Order 78A.

 The law vesting power to Parliament is in 107 (3) of the Constitution. What is in 78A is the mechanism to  implement that power vested in Parliament and it is the right of Parliament to devise its own instrumentality to implement the powers vested in it. It is similar to the Constitution vesting powers in the Judiciary in principle and the judiciary devising its own mechanism to implement those powers. So it’s not a question of what is right and wrong in law. Or who has the power to try judges or not. It is because the Constitution has vested the power in Parliament that the Judiciary is fighting now to grab that power from Parliament.

 The precedent for Parliament to act as judge has also been established. Harold Peiris, the Editor of the Sunday Observer, was tried before Parliament on an issue of Parliamentary privilege, and fined Rs. 1,000.00. If citizen Harold Peiris can be tried by Parliament why can’t citizen Dr. Shirani Bandaranayake be tried, especially when the law says that judges of the superior courts, including the Chief Justice, should be tried by the Standing Order of Parliament. Neither the Chief Justice nor the Judiciary is above the law. Trying the superior judges by Parliament is another way of maintaining the checks and balances entailed in the principle  of separation of powers. Allowing judges to try each other (no pun intended) is not a healthy practice for the preservation of the rule of law or the independence of the judiciary.  

 If the courts decide to usurp powers that it does not have and grab power vested in Parliament to empower the judiciary, which is something  like grabbing your neighbour’s property to  expand and strengthen the base in your little acre, then it amounts to the judiciary acting illegally to place the judiciary above the law with no checks and balances. It would lead to reinforce the Actonian principle that would tend to establish the untrammelled dictatorship of the judiciary. Such a scenario can have serious consequences to the nation. Powers that invariably corrupt individuals and institutions tend to propel both to demand more powers, all in the name of high principles. This leads to the erosion of the integrity and credibility of institutions and individuals. That is why there are checks and balances in the separation of powers. 

 It is in this context that the warnings of Justice Weeramantry becomes germane. As he stated:  “If a judge fails in his duty of judicial integrity, that entire nation is lost. It is only when the community has confidence in the integrity and the capacity of the judiciary that that community is governed by the rule of law. In other words, you don’t have the rule of law, you don’t have democracy in any community where the judge is lacking in integrity.”

 Next question: So will the judiciary uphold the law or will it bend  over  backwards to uphold its own interests under the cover of upholding “the independence of  the judiciary” which doesn’t exist as shown in the anecdotal  introduction?

6 Responses to “How independent is the Judiciary?”

  1. mario_perera Says:

    The under noted observations are not with the intention of taking on Mr.Mahindapala – not by the slightest stretch of imagination!

    I still believe and maintain that was there fault on the part of Chief Justice, it should have been resolved without all this fanfare and trumpet. What is happening now is the action of the buffalo in a china shop. Where is this all leading to? It will lead to the administrator from the highest to the lowest stratum not only losing every vestige of respect for the judiciary but also thinking of themselves as being above the law. Mind you, all this in a society in which criminality, petty, grave and abominable is on the rise like an unbridled spiral.

    This impeachment will will undermine and rattle the judiciary to its very core with no easy recovery in sight. We all know the hold the present administrative system with all its white elephant Councils and Sabhas has on the long suffering public. We all know and accept how ill-bred, uneducated and uncultured the vast majority of these administrators are. Above all we all know how CORRUPT they are. That they are all rotters, blood-suckers and leaches grafting themselves on those who come under their clutches is only too well known. Unity in corruption is the force of the corrupt. United they stand, and they have no checks, leave alone balances. What about the police, one would ask? The police was named in a recent survey as being the most corrupt organization of this country. So their fight against corruption is pure eye-wash. The all mighty administrator remains untouched. If there was one thing the corrupt feared in any relevant measure it was the judiciary. Now the administrator has taken on the head of the judiciary and the conclusion leaves not an iota of room for doubt. This will have radical and drastic effects on how the ‘good for nothing’ leaches on society of parliament, councils and sabhas will henceforth consider the judiciary. I can put it no better than with the wording of the psalm : The Lord said to my lord, sit on my right hand while I make your enemy (the judiciary in this circumstance) your footstool.

    With his impeachment, the word ‘IMPUNITY’ will be written in gold and studded with gems on the portals of every big, small, minor and also insignificant administrative office. This impeachment will clear the way for thugs, hooligans, idiots and nincompoops who man our administrative offices to have a field day.

    The impeachment is tantamount to sowing a wind. What will follow is the reaping of the whirlwind. Another way of putting it is that fools have crossed a threshold that angels would fear to tread.

    Mario Perera
    Kadawata

  2. HussainFahmy Says:

    The Question should be how Corrupt is the Judiciary? The extent of the Corruption is how Independent it is. Honest Judges will never pass the test of a Corrupt system.

  3. Nihal Fernando Says:

    Mr. Mario,
    Which catagory is good, uneducated corrupt legislature or the educated corrupt head of the judiciary? Chief Justice is not the judiciary but only a job title with which she heads the legal system of the country. The job title does not mean that she is above the law. No one is above the law. There are 14 charges agaisnt her. She is given time to explain the charges, challenge them and finally defend herself. let alone charges against her, I simply can’t understand wife of a accused husband of bribery and other various corruption charges can hold the sovereign post as the chief justice.

    One’s conscience with regards to his or her own right or wrong deeds and actions is the best judgement.

  4. lingamAndy Says:

    Ref:husband of bribery and other various corruption charges can hold the sovereign post as the chief justice.
    Nihal Fernando Husband & wife are two indipend person !!! one can be theive other one can be law obeing Queen !!!

  5. Fran Diaz Says:

    HLD,
    Thank you for your relentless efforts to bring us the correct news.

    ———-

    Without Check & Balances, Democratic institutions will die a natural death, given the accepted levels of lust (esp. for power) & greed of our times.

    All points of Power in any Democracy must strive to operate within the Law. All citizens of Lanka and not only the Parliament, must be watchful of their points of Power, especially the Judiciary. Expose and correct all unethical practices – that is the Democratic way. To expose what must be corrected would be the real role of Media.

    Since we have now discovered our weaknesses, it is not too late to admit our fault lines and attempt to restore the old values of striving for Honour in our lives and professions. That way, we can all hold our heads high in society and in the world.

    Main thing to realise is that it is not too late to take steps in the right direction. It’s Clean Up Time for Sri Lanka’s Democratic institutions.

  6. Manjula Says:

    This is a very informative piece of writing. Many thanks to HLD for that service. Most of the time we hear and read cheap and unresearched rants and not quality information. In fact, unresearched shallow material gives joy to many shallow thinking people who comes to conclusions withing hearing a word or two.

    Corruption is everywhere and is powered by greed. Whether it is in United States at the very high level such as the vice president’s busines ventures open-up construction projects in Iraq immediately after Americans destroyed Iraq infrastructure or if a Pradeshiya Sabha chairman offers a contract to one of his friends, corruption is corruption. As HLD illustrates very well, even Police force or the judiciary is not free from corruption (and not only in Sri Lanka). No one can stop corruption completely in one week. Therefore every little step forward is vital and it is a long journey.

    One good thing here is that if judiciary decides they will work the law to the letter in the future, then they will be more determined to call and hear the cases against any corrupy people in the parliament as well (including opposition). This way each other will keep each other’s noses clear. Hopefully ordinary people on the road will be the real winners.

    However, the US and the west will definitely try to take advantage of this conflict to escalate it to the level of an Arab Spring for their own benefit, just like what they did in Libya and now trying in Siriya. Every conflict in the world is a golden opportunity to the west. Secret of their success lies in the strength of few indirect dollars they can throw towards the unsuspecting public.

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