By Ashan Nanayakkara –

Ashan Nanayakkara

In Kamal Addarachchi vs. State (2000) 3 SLR 393 it was held that, “…No Court should try to molly-coddle a witness as has happened in this case. The result would be very dangerous in that the prosecutrix would have got wrong signals to lie in Court. It is very important in a criminal trial that an accused should have a fair trial and therefore situations should be avoided so that no complaint of discrimination, bias or injustice could be made…”

Does the donating sum of Rs. 10,000 to Ven. Siridhamma thero by the additional Magistrate of Colombo, Tharanga Mahawaththa come under the aforesaid forfeited conduct explained in Kamal Adhdhrarachchi’s case?

For judicial service, we recruit humans; not machines. One yardstick of selecting them is to have an empathy, compassion and sensitivity towards things transpired around those judges and ability to assess how do they response to those factors wisely. Judges too are the part of the mass society and it is a Herculean task to disengage them from what is happening around them. Some school of thought may say judges should completely be segregated from the society paving them to dispense the justice without heeding to any external factors. Others would say that close proximity with the society would enhance the sense of judgement of those judges to come into more precise and accurate conclusions.

Now the incident before us is that one Additional Magistrate being extra considerate in manner towards a suspect produced before her and that has raised eye brows among the Attorney General and Terrorist Investigation Division (TID) is worthy to analyze more in jurisprudential aspect.

I venture to say that the act of donating some money to a suspect (to the Jailor Guards) to buy some nutritious food to a enfeebled suspect is an evident that the compassion which was expected by a judicial officer is still alive and such judge is more suitable to that august post. 

The “molly-coddling” mentioned in the Kamal Adhdhrarachchi’s case would only apply if the said judge talks more intimate manner to a witness whilst he is giving evidence (for example: when a witness is not giving an answer in his initial evidence, thereby judge strives to show more comfort and bosom towards a witness and get an answer which is in fact not the truth per se and which may have not told unless such comfort was shown to him. A lie comes out from the mouth of the witness due to the undue cushion provided from the bench is contrary to law). Had that been happened, it is true that the latter is not suitable to hear the case further. 

I have seen in courts that judges being so courteous towards the witnesses, going an extra mile, permitting witnesses to sit down and give evidence, drink water or any refreshments whilst he is testifying, adjourning courts to let a feeble witness to rest, give fine money to a long incarcerated man to discharge on bail who has no any relation, donate money from his own pocket to buy medical treatments to an ill litigant etc. None of those occasion could interpret, nor does the other side would lower themselves down to accuse it as an act of bias or partial. 

Speaking more on prejudices of judges, Frank wrote in his book, Law and the Modern Mind, viz, “Those prejudices, when they are racial, religious, political, or economic may sometimes by surmised by others. But there are some hidden, unconscious biases of trial judges or jurors – such as, for example, plus or minus reactions to women, or unmarried women, or red-haired women, or brunetts, or men with deep voices or high-pitched voices, or fidgety men, or men who wear thick eyeglasses, or those who have pronounce gestures or nervous tics… ….factors that can influence a judge’s decisions – his social background, his cultural and intellectual interests, his relationship in childhood with his parents, and in later life with his wife and children, his political sympathies, his religious views, his financial interest and his physiological make up, even his frame of mind on a particular day influenced by what he ate for breakfast…” Hence, the reaction to each case before a judge could be different from one case to the other. This is not abnormal in courts; the American Realism and Scandinavian Realism have researched deep into this area of law and the modern world welcomes judges acting freely so long as they do not apply their favoritisms into their decision making.  

When we coming back to the Siridhamma thero’s incident, it is true that such meritorious work by a judge would instill some unconscious bias, yet, since the other party could not show any tangible evidence of such bias act of the judge during the hearing has adversely affected to their case, any objection of “judge is bias” is obsolete. The cause of action shall not be affected merely because a judge being nice to a party. That is the human nature. That is why humans are appointed to judicial posts over machines. They are emotional, sensitive, fearful, pride, virtuous and wicked. Their level of wisdom too divergent. As a matter of fact low-wit is a disqualification to hold such an onerous position but not kindness.

A wicked judge may be hated the most from the Bar but still merrily resumes his work. A scared (coward) judge who has no self-esteem may fully complete his tenure avoiding bold decisions to pass during his career, and had those decisions were made he could have brought lot of joy and light to the lives of aggrieved parties. Pride judge may forget about what the judicial temperament is and still continues his work. Irony is whilst condoning all the aforesaid, a courteous and compassionate judge being reprimanded due to his or her virtues, is a crime.

Inasmuch as the case in hand is not negatively affected by the conduct of the judge, we should not discourage the good virtues of a judicial officer. A dry and resentful court house is no different to murder in the Cathedral. Humor sans humiliation, witty-remarks sans defamation are always rejuvenate such a court house. Thus, smiling, pleasant, friendly and wise judge is a treat. 

Having said so, it must also be noted that if a judge fails to discipline herself and made to utter something which is not suitable to her stature would also open a can of worms. Especially, “ඔබලා අරගල කරන්නේ අපි නිසානේ” (“You are doing protests for our behalf”) type of one sided remark jumps out from the mouth of a judicial officer would end the qualification to hear that case by that particular judge henceforth. As the saying goes, justice departures when the emotions enter in. So, untamed mouth will not do well either. Without weary the reader, let me quote certain parts of the determination of the famous Sil Redi Case (Vithana Palpita Koralalage Anusha Palpita and Lalith Chandrakumar Weeratunga vs. Attornwy General (CA 413 – 414/2017) decided on 19.11.2020), in which it was analyzed that how High Court Judge Gihan Kulathunga had erroneously imported his personal opinions to the case. Thus, the Court of Appeal finding fault with such observations, determined as follows:

“The Learned High Court Judge has stated that there was a prevailing political culture during the last regime “එවකට පැවති දේශපාලන සංස්කෘතිය”. This is found at page 1259 of the brief, Volume I. There is no evidence to support this observation. The Learned Judge has perhaps imported this knowledge from the commission of which he was a member or even from an unknown source. The importation of this personal knowledge into his conclusions has coloured his judgment and lends credence to the submission made by the Learned Counsel for the 2nd accused that the accused did not have a fair trial.”- p. 50

A Judge should not import his personal knowledge into the matter in evidence, which may favour either party. It is an important matter for a trial Judge to adopt strict impartiality in the hearing of cases. The role of the Judge as an unbiased umpire is a cardinal principle of law. These are the shortcomings of Judges which could affect to their impartiality. Once the impartiality of a judge is tainted it is hard to repair it. This reminds me some words of wisdom uttered by Justice T. S. Fernando in Richard Peiris and Company Limited vs. Wijesiriwardena 62 NLR 233: “As regards the power of the Tribunal to make such order as may appear to it to be just and equitable there is point in Counsel’s submission that justice and equality can best be measured not according to the urging of a kind heart but only with the framework of law”.

Nevertheless, the society would always like to have ‘a Azdak of Chalk Circle’, rather than coward who shies away before might and power. People would love to appear before judges like Frank Caprio who has become the modern day icon of humanity in courts. (Frank Caprio is the chief municipal judge in Providence, Rhode Island and the former Chairman of the Rhode Island Board of Governors.)

The judge too a reflection of that society. Alienating a man from Mars and install into our judicial system is not pragmatic. We must know that those who are in the judiciary too are members of the society. They too possessed with strengths and weaknesses of the macro society. Though the judicial service is tried to be completely placed at a no-man zone, it is always not the truth. For instance, if the Supreme Court is called upon to deliver a judgment upon some matter concerning, say, the legality of abortion, no one could imagine that a judge who is a practicing Catholic or devout Buddhist could separate entirely his personal view point from the matter before him.

On the other hand, the person who spilled the beans in courts, the Attorney General, has also lost his credential, long ago, in this country due to its regular shoddy conduct. The Attorney General making submissions in courts sought to change the incumbent judge who now hears the case. The Senior Deputy Solicitor General – Mr. Dileepa Peiris (who said to have informed to the courts, recently, that the Youtube blogger – Sepala Amarasinghe has not even passed his Ordinary Level Exam. How on earth that would relevant to that case is only best known to Dileepa alone) who was appearing on behalf of the Terrorist Investigation division (TID) had made these damning revelation that the Additional Magistrate, inter alia, had given some money to a suspect to buy some stuff and thus sought an order to change the judge. To some, the submissions made by the Senior DSG is an act of intimidation towards the courts. As a result, the very next date, group of Lawyers who practice in Colombo went on a protest march at Hulftsdorp showing dissent to the Attorney General.

However, what transpired in courts, rather than a contemptuous act per se, it is an act of ‘Forum Shopping” where you accuse the judge when the tide goes against you and make sure to change the judge before it is too late. The place like Attorney General’s Department, being the public prosecutor of the Republic, is expected to act unbiased and upright manner. Nevertheless, following of such good old traditions are no more to be seen. Recent incidents such as, coming and appearing against Senior DIG Western Province – Deshabandu Thennakoon at the Magistrate’s Court of Fort by Senior Additional Solicitor General – Ms. Ayesha Jinsena, PC during ‘Aragalaya’ time, and presently coming and defending the same Senior DIG at the Court of Appeal preventing the latter being arrested, by Senior Additional Solicitor General Vikum de Aberew, PC is unfathomable, inhuman, and beyond any moral standard (Acts of duplicity is not new to Attorney General’s Department.

I recall late Mr. S. L. Gunasekera once told that aftermath to the 1965 General Election, United National Party formed a Government and wanted acting Attorney General Victor Thennakoon QC to indict against Dr. Makie Ratwatte who is the brother of Mrs. Sirmiavo Bandaranaike. Mr. Thennakoon who had unimpeachable integrity throughout his career refused to sign for the Charge Sheet saying there was no evidence. This was the cost of him losing the then illustrious post of Attorney General and his successor, the political appointee, Mr. A. C. M. Ameer QC indicted Makie Ratwatte no sooner he was posted. No wonder, Makie Ratwatte got acquitted after trial even without defense being called in that case. These type of conducts show that chameleon State Officers who would go to courts and defend any imbecile for their vested interests had done more harm to this country than the Politicians. In the backdrop of such uncouth and disgraceful behaviour, how much the genuine that request was, to change the judge, such application of the Attorney General leaves lot of question marks on their motive.

In this backdrop, it is sad the judges who step out bounds of law and precedents to make sure the litigants feel comfortable in court houses are being bombarded like this nature when Government Officers and judges themselves who possess other frailties are gone unnoticed.