By Mohamed Harees –
This is a court of law, young man, not a court of justice. ~Oliver Wendell Holmes, Jr.
The Video of a speech by a young ‘whistle-blower’ lawyer Sugandhika Fernando exposing the utter corruption and deterioration of the standards in the system of justice and law enforcement in Sri Lanka, has already gone viral. She particularly mentioned many acts of misconduct such as drunken/corrupt judges, corrupt Mudliyars/court administration staff, and also senior lawyers and Police officers who have been abusing the system to enrich themselves. What she exposed boldly and publicly about the vices of corruption, bad practices and sexual exploitation within the system of law, has also been a pet topic of UNP Deputy Minister cum actor Ranjan Ramanayake for some-time, both within and outside the Parliament which landed him in hot water, with a legal Mafia chasing him from behind gunning for his blood. Besides, many members of the legal profession as well as clients too has been sharing similar views in private hush talks. Nagananda Kodituwakku is another rights lawyer who has spearheaded a campaign to clean up the stables long polluted by rogue corrupt elements both in the Bench and the Bar.
In an interview with Daily Mirror ( 29/08/2017) Ranjan Ramanayake opined ‘There are instances where wrong verdicts are given. There are instances where sexual bribes are given. A judge had been accused of raring a servant. People talk about them. A former Chief Justice admitted that he gave a wrong judgement during his tenure. What did the BASL chief do about these judicial officers and lawyers. Aren’t we going to penalize these judicial officers? There are instances where people threw excreta at judges. Some Sri Lankan lawyers have been identified as ones who hold black money by Panama papers. I am going to be penalized when I talk about them. Wrong doers are spared. Only the corrupted law enforcement officers start panicking when one talks about corruption in the judiciary. .. Late Prime Minister John Kotelawala said he would apply tar on the heads of corrupted monks. All monks should not panic about this statement. Likewise only corrupted judges and lawyers should panic about my statement.. My statements are based on what people come and tell me about lawyers.. People suffer as a result of shortcomings in the judiciary”. However, there is also a counter view that public attacks by political figures against the judiciary, can further undermine judicial independence and public confidence in the Judiciary. Nevertheless, it appears that judicial corruption is endemic. Political interference in the judicial process by influencing or intimidating judges were common since JRJ times with MR being the worst in that respect.
As they say ‘fish rots from the top’, Sarath N. Silva as Chief Justice sacrificed the very notion of an independent judiciary and became a servant of the Executive Presidential system. He shamelessly sacrificed the independence of the judiciary allowing the Executive President to play around with the process of law. How he later came on a political platform and apologized to the nation about letting MR go in the infamous Hambantota case is an open secret and shameful. Then the country had another CJ Mohan Pieris appointed by MR, who virtually acted as his Majesty’s loyal servant in delivering judgments. He reportedly went before the Present President Sirisena too to offer his services on the same terms. Such was the sad tale of interferences with the independence of the judiciary in Sri Lanka. We have also seen many reported acts of misconduct of many judges too serving in the lower benches including bribery and soliciting sexual favours. There was also another new tradition of judges which came to light in the recent past , inviting politicians to parties to sign as witnesses at their children’s weddings. There were thus clear cases of Supreme Court judges continuing to have personal and social relations with the executive branch specially during MR’s regime,especially despite being a government whose behaviour was extremely questionable from the viewpoint of democracy and the Rule of Law.
Kishali Pinto-Jayawardena, a legal commentator captured this sad reality in an article to Colombo Telegraph in 2012; ‘Exponentially increased contempt displayed by the executive for Sri Lanka’s judiciary was manifested in recent years with politicians from the highest levels downwards seeking to influence the outcome of cases, with criminals having political backing openly disregarding arrest warrants and with the judiciary being treated as an appendage of the government’. As a prominent rights activist lawyer Basil Fernando also opined ‘The real test is as to whether the system of law and the administration of justice have gotten back to the point where it can be honestly claimed that the system functions well and that every element of the system has gotten rid of the corruption that it had been exposed to. Such victories should not be lightly claimed for all aspects of individual freedoms and the whole life of the nation depends on such things, like the way blood runs through the human body. The most essential element to consider is whether the competence of the judiciary that has suffered past interference has been restored fully’ and asks the question: ‘Does the legal process in Sri Lanka function sufficiently well that we could claim today that the due process of law can be assured within our system? If one is to go by the large numbers of litigants, who are the ultimate judges on this issue, we cannot yet claim such a situation has dawned’.
Added to judicial corruption, Police corruption was equally alarming too. A 2017 survey carried out by the Transparency International (TI) in the Asia-Pacific region has revealed Sri Lankans pay more bribes to police. They survey results showed Sri Lanka has a bribery rate of 15 percent among 17 countries and its citizens frequently pay bribes to Police. It also said people pay bribes to public schools, courts and utility providers. A Transparency International (TI) survey sometime ago also revealed that most Sri Lankans believed the police force was a corrupt public institution. According to Transparency International’s Global Corruption Barometer (GCB), 64 percent of respondents said the police was corrupt or extremely corrupt, while 51 percent said political parties were corrupt. Of the 1,001 respondents surveyed face-to-face, 35 percent said corruption in the country had increased over the past two years. Furthermore, 43 percent reported paying or having a household member who paid a bribe to the police over the past year. Sri Lanka is among 36 of the 107 countries surveyed, where the police were found to be the most corrupt public institution’. According Human Rights Watch on Police Abuse in SL, ‘lawyers and rights activists also emphasized what they see as the longstanding bias of the criminal justice system and the NHRC in favor of the police, saying that the occasional small victories do not make up for the overwhelming majority of cases in which both the attorney general’s department and the courts block justice or simply drag their heels. They also reported a vicious cycle of corruption, as police pay off others to protect them against complaints. While the level of corruption is hard to determine, it certainly has an impact on those seeking to navigate the system’.
With regard to the effectiveness of the regulatory institutes, it is said, “Section 70 of the Bribery Act defines a corrupt individual as a “public servant who, with intent, to cause wrongful or unlawful loss to the Government, or to confer a wrongful or unlawful benefit, favour or advantage on himself or any person…does, or forbears to do, any act, which he is empowered to do by virtue of his office as a public servant.”. However, Regulatory institutes are politicised. Even the executive, the parliament and the judiciary are not sufficiently accountable to anyone. The (Bribery) Commission has no capacity to investigate things like share transactions and corruption at higher levels. They have no operational independence”.
It is universally acknowledged that the essence of a modern democracy is observance of the rule of law. The proper functioning of a democratic state is, to a large extent, contingent on the good faith of political leaders and those who administer the government’s executive functions. The effective protection of society from potential threats emanating from the abuse of power and the circumvention of basic democratic principles rests on, inter alia, the existence of a system of checks and balances. The independence and integrity of the judiciary and the legal profession is a fundamental pillar of this system. In the words of Justice Michael Kirby AC: ‘independence is not provided for the benefit or protection of judges or lawyers as such. Nor is it intended to shield them from being held accountable in the performance of their professional duties and to the general law. Instead, its purpose is the protection of the people, affording them an independent legal profession as the bulwark of a free and democratic society.’
Corruption is however sadly undermining judicial systems around the world, denying citizens access to justice and the basic human right to a fair and impartial trial, sometimes even to a trial at all. Equal treatment before the law is a pillar of democratic societies. When courts are corrupted by greed or political expediency, the scales of justice are tipped, and ordinary people suffer,” said Huguette Labelle, Chair of Transparency International. “Judicial corruption means the voice of the innocent goes unheard, while the guilty act with impunity”. In the days of yore, the spectre of a corrupt judge or magistrate was so horrible that it could largely be dismissed as impossible.
The judicial traditions had a strong ethos of honesty and integrity. A judge on the take in earlier times was unthinkable. The problems of the judiciary then were different: laziness, bad temper, dilatoriness, ignorance of the law, prejudice. Financial corruption was out of the question, although it was not unknown for judges sometimes to be corrupted intellectually by ambition, the hope of promotion or the prayer for a title. Nowadays, this fundamental assumption of the legal profession cannot always be taken for granted in any country. The international principles of human rights may promise that the judge shall be competent, independent and impartial. But in many countries, especially in the lower judiciary, corruption is sadly a way of life. Insidiously, it has invaded the judicial seat. It has intruded into court registries. Without a “tip”, a file may be lost and will never make its way to a hearing. Without a bribe, a favourable decision may not be assured. The motives of judicial corruption are the prejudices of wealth and power shared by judges, lawyers, and favoured parties; the concealed economy of favours between lawyers and judges; and actual bribes by indirect cash-flows.
In understanding why Judges become corrupt, some analysts also give few more reasons: Firstly, Judicial Corruption Exists Because Public Trials Are Almost Never Heard By The Public. Why do we carefully watch the people who make our laws, but never check on the people who administrate them? Secondly, Seclusion and Lack of Accountability Breed Corruption: Judges become corrupt because no one, except the victims, know what goes on in their court rooms. So with unlimited power and no feedback from the public, judges come to understand that they can do anything they want and they start to believe that whatever they do is justified. Anyone will come to have this attitude when there is no one to provide a reality check. Thirdly, Judges Become Corrupt When Strong Personal Agendas Enjoy Absolute Power: all too often judges make decisions that are contrary to the law or against the weight of evidence. While money can be the motivation for judicial corruption, we find that judges are most often corrupted by their own ideology and personal affiliations. Don’t forget, judges are appointed by politicians, not elected’.
It is therefore imperative that all necessary measures are taken to restore public confidence in the Judiciary. In essence, Judges should be seen as persons within the legal profession who possess the extra-ordinary character, culture, trait, patience, intelligence, knowledge, dynamism and virtues to adjudicate honestly and impartially among contending and disputing parties. Indeed, corruption or any type of vice was seen as an abomination and anathema within Judicial circles, whether at the Supreme Court, Appellate Courts or Magistrate Courts. It is the desire of the citizenry that justice must be done, without delay, at all times and be seen to have been done. With a corrupt Judiciary, this can never be accomplished. It is therefore our collective responsibility to ensure a continuous independent, strong, respected and respectable Judiciary for the impartial administration of justice. All Judicial Officers must actively participate in establishing, maintaining, enforcing and observing high standard of conduct so that the integrity and respect for the independence of the Judiciary is sustained. We must collectively come together and tackle the problems of court inefficiencies, poor infrastructure and condition of service, decay of intellectual capacity and corruption. These setbacks among others have served to disrupt full efficiency of the Judiciary and its perception by the public. As President’s Counsel H. L. de Silva addressing the conference of the Independence of the judiciary(August 25, 1999 –BMICH)said;
“The independence of the Judge is dependent on and is linked to the question of his moral integrity. His knowledge of the law and his skills in legal reasoning and analysis in the process of adjudication, though very desirable, are in a sense secondary and of less importance. An honest mediocrity is to be preferred to a clever crook when it comes to the act of judging. Intellectual dishonesty in adjudicating though often hard to demonstrate is to be deplored, while moral depravity and corruption of any sort are wholly outside the pale and must be condemned without equivocation”.