9 August, 2022


Ensure Equal Justice Or Shoot The Messenger

By Ananda Markalanda

Ananda Markalanda

Ananda Markalanda

Nagananda Kodituwakku is an inspiring example of how passionate individuals can make meaningful and sustainable improvements in the lives of vulnerable communities through our judiciary. Historically, and in many cases today, messengers of bad news are often punished instead of the creators of the bad news. Assuming it is true that we often ‘shoot the messenger’ when we receive bad news, the questions arises as to why this is the case.

Mere access to the courthouse doors does not by itself assure a fair trial. All people who come to courts want and deserve a court system they can trust and that treats them fairly and with respect, an independent branch of government that advances justice through the rule of law, and a system that provides fair, efficient, effective and accessible justice for all.

Presently Sri Lanka is on the radar map of International community for corrupt judiciary as indicated by many organizations. Mr. Kodiutuwakku has taken a stand on this and fighting to rectify this on a pro bono basis to a court system that works collaboratively with its justice partners to serve the people with integrity and transparency. It is a privilege to have a Public Interest attorney like Kodituwakku, whose career, as lawyer is a stellar example of how to serve the public interest. The common goal, greater “knowledge about law and the administration of justice,” is particularly important today when the legal profession projects very different images. On our Constitution creates a certain form of government, a democracy with basic guarantees of human rights. It is an enabling document that does not dictate substantive policy choices but foresees those choices being made by “the People.” How can that document work if “the People” are indifferent to, ignorant of, or cynical about, the very governmental system it creates? The answer is: it cannot work without the public’s trust and its participation. Model Rules of Professional Conduct identifies the lawyer as a public citizen: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”‘ The lawyer Kodituwakku’s role as a public citizen is the heart of the lawyer’s obligation to the legal system and to clients who doesn’t have the funds. Likewise, this role is the heart of the lawyer’s pro bono obligation. Recognizing that lawyers have an ethical and professional duty to make access to justice a possibility for all in the struggle for social justice, public interest litigation has played an indisputably important role. Yet over the past three decades, critics from both the left and right have challenged its capacity to secure a judicial system with integrity. This is where Kodituwakku comes to the scene for a change or to restore on the integrity and the honesty on the Judges. This is a patriotic effort and rational criticism to seek redress from courts.Justice-Upali-Abeyrathne-Justice-Anil-Gunaratne-CJ-Sripavan.

Interpreting this as an abuse and attack on the judiciary is misinterpretation if you read the allegations. Parliament can change the law – but until it do, judges must ensure its statutes are fairly obeyed. Without this right, governments can behave as they choose: arbitrary, unchecked, using and abusing power recklessly. The critiques have varied, but have centered on two basic claims. The first is that litigation cannot itself reform social institutions. The second related concern is that over-reliance on courts diverts effort from potentially more productive political strategies and disempowers the groups that lawyers are seeking to assist. The result is too much law and too little justice. Litigation is a key strategy for protecting the rights and enlarging the power of people, particularly when other channels of influence are unavailable. Groups hobbled by discrimination or collective action problems may turn to courts as allies in the struggle for social justice.

As judges and lawyers they have a related special responsibility, that of helping to preserve the traditions, habits, expectations of behavior that make the Constitution’s guarantees of freedom a reality. Kodituwakku has tried to describe the legal profession’s four traditional public service roles as law reformer, as statesman, and as teacher. At the same time, I have pointed to certain trends in contemporary professional life — an effort of a narrowness — that threaten the lawyer’s ability to fill those roles. And the threat is a serious matter in a world that more than ever needs a legal profession that pursues its calling “in the spirit of public service.” The different ways in which lawyers may embody that spirit suggest various ways in which different branches of the legal profession may have to respond.

The authority exercise by this Court is a sacred responsibility to act according to its constitution. As such guardians the court was charged with a most sacred trust, a most sacred duty that of Judiciary holds itself to the highest standards of excellence and administers justice with diligence and integrity. He must not put himself in any position where his self-interest may have any bearing on the facts. Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”

Justice is one of the pillars upon which our government stands, and a fair and impartial judiciary is essential to democracy, upholding our rights under the constitution. This will make our country strong.

What is meant by the words “fair, impartial, justice?” Their meaning becomes clear when the judiciary resolves disputes free from improper outside influence, self-interest, prejudice, perks or favoritism while applying the rule of law to the facts of cases, treating or affecting all equally with effective due process. To do this, the judiciary must uphold the highest level of integrity in all its actions. A critical element in achieving and preserving fair and impartial justice is judicial independence.

Nagananda Kodituwakku deserves special gratitude and appreciation for his pro bono efforts to improve Sri Lanka’s judiciary on behalf of his country.

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Latest comments

  • 2

    Sri lanka says it got independence and celebrate it annually with no independent judiciary. This article is very good and to the point. Bar Association should take note of this.


    Dharma Ekanayake

  • 2

    Mr Kodituwakku, we all salute your brave civic mindedness, and wish you well in your endeavours.

    Could you also find a way to free the judiciary from the leftover colonial tradition of dressing up in wigs and uncomfortable robes in order to deliver justice. Now, in the 21st century, there surely must be better ways for a judge to present him/herself without looking like a pantomime dame.

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