Issues
Judicial Independence and Accountability in Sri Lanka
I view the issue of judicial independence and accountability in three interdependent levels: political accountability, decisional accountability and behavioural accountability
– Justice Wendell L. Griffin, Judge of the Arkansas Court of Appeal (Law and Contemporary Problems 1998)
Elaborating on the above three levels Justice Griffin stated: ’Political accountability includes selection, tenure and the extent to which judges are accountable to other branches of government for appropriation, definition of jurisdiction, and other issues related to the terms and conditions of our service in the judiciary. Decisional accountability concerns the manner in which judges are held accountable for rulings and decisions. While this principally takes place through appellate review, it also includes academic criticism of judicial actions. Behavioural accountability involves judicial conduct made the subject of disciplinary proceedings.
Please don’t touch
Local media carried two articles; one titled ‘Whither independence when judges host parties for Politicians?’ and the other titled ‘Judicial Ethics’. The writer of the second article stated ‘When J.R. appointed Neville Samarakone Q.C as Chief Justice, Neville was J.R’s lawyer. A former Bishop who knew how close Neville was to J.R.J asked me ‘How could there be justice now?”I replied “Neville lacks neither position nor funds. We will wait and see.”When later on J.R.J had tried to touch him, Neville seems to have said, “J.R. our friendship is at home. My duties are sacred.
Please don’t touch” Honour was greater to Neville than were material benefits and his duties were sacred to him. A judge worthy of his appointment can never compromise his honour and integrity to the detriment of his Sacred Duties’. The question posed by the writer of the first article, who was very critical of the recent appointments of the present Chief Justice and another well respected Judge of the Supreme Court would do well to read the second article as the answers to all his misgivings have been supplied by the writer of the second article referred to above.
Superior Court Complex Colombo, Sri Lanka
Respect for the judiciary is paramount in a democratic society for the proper maintenance of the Rule of Law. Criticisms in the public domain of the personal lives of Judges who are presently on the bench are most unfortunate and should be avoided as such criticism tends to erode the confidence of the public in the judiciary of a country. The writer of the first article quoted Article 38 of the statement issued by the Sixth Conference of Chief Justices of Asia and the Pacific held at Beijing as: ’Executive powers which may affect judges in their office, their remuneration or condition or their resources must not be used so as to threaten or bring pressure upon a particular judge or judges. ’ but the said writer failed to discuss the relevance of that Article to the arguments raised in his piece. In view of Article 107(2) of the Constitution which provides that a Judge of the Supreme Court or the Court of Appeal can not be removed even by the President without a resolution being passed by the Parliament , the tenure of such judges are secured thereby ensuring judicial independence.Even President J.R.Jayawardene could not remove Chief Justice Nenille Samarakone, who gave several adverse judgements against the State due to this provision. Thus, the said Article issued at the Beijing Conference bears no relevance to the appointments to the Supreme Court
Although if the President deems the Parliament may impeach a judge at any time as the Government at present commands a two third’s majority in Parliament , it is very unlikely that the President would resort to such an action jeopardizing the popularity of the Government.
The writer of the first Article refers to the dismissal of the writ application filed in the Court of Appeal relating to the Court Martial of Sarath Fonseks. If the petitioner in that case were dissatisfied with the judgement of the Court of Appeal, errors if any, found in that judgement could have been corrected on an appeal to the Supreme Court. Decisional accountability as stated above by Justice Griffin could be tested by appellate review. In the absence of any errors the judgement of the Court of Appeal has to be upheld.
The writer of the first article should realize that simply because a judge hosts a party for politicians or a judge’s husband holds public office, it does not necessarily imply that a judge is incapable of delivering impartial judgements without giving into any political or other form of pressure as seen in the case of Chief Justice Neville Samarakone. Decisional accountability makes it the sacred duty of a judge to deliver impartial judgements, in spite of any form of pressure. The society does not suffer in any manner, whatsoever when a judge worthy of his appointment performs his/her sacred duty and delivers impartial judgements according to his/her conscience resisting any form of influence or pressure. The Chief Justice of Uganda was murdered by the Dictator Idi Amin for delivering an impartial judgement despite the pressure brought upon that great judge by the maniac Idi Amin. His Lordship will be respected and venerated by the entire World for all time whereas the maniac Idi Amin will be despised by the World for his brutality.
As the writer of the second article says ‘We will wait and see’, the writer of the first article should bide his time and permit the new judges to perform their functions. The present Chief Justice is well respected for Her Ladyship’s impartial judgements during the period of holding office as a Supreme Court Judge even after her husband was appointed to public office. Few judges of the lower judiciary, who have been found to be guilty of judicial misconduct have been requested to resign or removed from office by the Judicial Service Commission.
The media should act with responsibility to preserve the dignity of the judiciary of our land as our judges have always acted with dignity and honour in performing their sacred duty and delivered impartial judgements, thereby earning the respect of our people at all times thereby upholding that pristine principle of Rule of Law.
May I conclude my article with that famous saying of Emperor Ferdinand ‘Fiat justitia, et pereat mundus’ which means ‘Let justice be done though the world perish’.
Mr Keerthisinghe LL.B., LL.M is an attorney at law and a former Senior Consultant of the Law Reform Project funded by the UNDP for the Human Rights Commission of Sri Lanka
11 Comments to “Judicial Independence and Accountability in Sri Lanka”
March 16, 2012 at 3:30 am
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January 12, 2012 at 4:17 pm
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December 28, 2011 at 6:38 pm
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December 21, 2011 at 2:18 pm
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August 4, 2011 at 3:39 pm
Judicial corruption and influencing of judges into writing partial judgements is relevant mostly to dictatorial regimes run by corrupt and thuggish dictators. BUT Sri Lanka has a democratically elected government with a vociferous opposition and a largely independent media as seen by the aritcles appearing on this publication. Therefore I do not believe this is as seious an issue as depicted by the person who wrote the article “Whither Judicial Independence when judges host parties.”
All human actions are self motivated, and are oriented towards a payoff and when an indivdual’s self interest are NOT served they protest. If the judges ruled in General Fonseka’s favor, I do not think the person who wrote the article “Whither judicial Independence when judges host parties” probably would have ever written the article.
July 27, 2011 at 1:12 pm
Neville turned out to be a gentleman on the bench. WHen he retired at his farewell speech he said ‘I’m going from obscurity into oblivion’ these men you no longer see in sri lanka sadly.
July 27, 2011 at 1:09 pm
Yes but responsibly no?
July 27, 2011 at 1:09 pm
Th media is there to expose corruption
July 27, 2011 at 1:07 pm
Mr Keerthisinghe brings up a good point. As much as it is incumbent on the judiciary to preserve their dignity it ill becomes a media intent on throwing mud to desecrate the hallowed halls of justice in an irresponsible manner. While the media is right in exposing wrong doing I sometimes feel that reporters try to make names for themselves by taking on bid names just to get attention. Especially when they know they can’t be touched.
Let us hope this is not one of those instances