30 September, 2020

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Judging The Judges

By K. Anaga

Will there be a Day of Judgment for the Sri Lankan Judiciary/Judges? Hundreds of articles have been written with regard to Laws Delays. Numerous speeches have been delivered by the Judges at the time of their ceremonial sittings, on the same subject. When you listen to the speeches and read the articles, you may come to the conclusion that something tangible is going to happen with regard to eradication of the Laws Delays. But the Judges conduct themselves like politicians, promising the sun and the moon and the earth to their voters, in a convincing manner. But, after winning the elections, they say why they cannot keep their promises, in a much more convincing manner.

However, the Judges have no one to answer, expect to their conscience. The Litigants have no way of questioning the Judges. Even if they find a way of questioning, no response appears to be forth coming.

It may be appropriate to quote what the Judges stated on various occasions with regard to Laws Delays, as reported in the press: 

Justice Sithambarmpillai Thurairaja: “The single largest challenge faced by our profession is delay. From a moral or rights-based perspective, delay is clearly detrimental and amounts to gross violation of litigants’ and the victims’ rights. Quite apart from ethical issues with delays, there are significant direct and indirect negative implications to the profession and the country as a whole due to delays…………………..”  Subsequently he says: “I am mindful of these responsibilities as I assume my judicial journey to-day”. (Sunday Times: 27/9/16)

Justice Yasantha Kodagoda. P.C “…………..     You would agree with me that this not a situation any one of us could be content with. The whole purpose of administration of justice would be rendered futile, if people lose faith in the justice system, particularly due to inordinate delays associated with the administration of justice and if litigation is associated with or results in exhaustion of  financial  resources. The value of litigation would be completely eroded, if a litigant cannot reap the results of the litigation within a reasonable period of time and certainly during his lifetime. Regular practitioners of this court would be conscious of the number of times matters come up for substitution of parties, since the litigants have died in the fullness of life.”………………  “It is now time for us in the legal fraternity to cause the implementation of practical solution to the problem of Laws Delays. We must now get into an ‘implementation phase’”.(Sunday Times 12/5/2019).

The Chief Justice Jayantha Jayasuriya: Examples or illustrations to demonstrate the adverse impact caused on a person’s life, due to ‘delayed justice’ are too numerous to discuss in detail on an occasion of this nature. Yet, it is timely for all of us as trustees who are entrusted with responsibilities in different capacities within the legal frame work, whether one represents the  Judiciary, the Official Bar or  the Unofficial Bar, to think how best we could contribute to improve the existing system and enhance the quality of the final outcome provided to the society. None of us can ignore the reality that, we are expected to hold all these positions in trust and play different roles, to the benefit of the society. (Sunday Times 19/5/2019)

In addition, the parliamentary committee Chaired by MP Ajith Manapperuma has made several recommendations pertaining to the expeditious and efficient administration of Criminal Justice. It says the responsibility lies with the government to initiate prompt measures to eliminate this “serious and shameful delay” in the Administration of Criminal Justice, while ensuring the accused and the victim of the crime are not deprived of the entitlement for a fair trial.(Sunday Times 10/12/17)

Despite all these efforts, if a Presidential Pardon is granted to criminals on unacceptable grounds, no useful purpose will be served by adhering to the recommendation of the parliamentary committee. 

Brave Judges, who do not crave for promotions by unfair means or through political influence or by delivering judgment, consistent with the government’s wishes, should be able to stand their grounds with the support of the Bar Association, but according to press reports, the Bar Association’s recent activities leave much to be desired, it appears.

All three judges appear to have understood the agony of the litigants. They appear to have diagnosed the problems faced by the litigants and are apparently genuine in finding a solution to the problem. But they don’t seem to know whether a simple medicine will cure the ills or major operations are required to prevent recurrence of the prevailing illness.  The Judges alone cannot possibly find a way out of the agony of the litigants. They have to satisfy the lawyers by giving dates. After all, the Judges too have been lawyers, once upon a time and asked for dates and got it.  The prevailing ‘system’ too needs change to expedite inquiries. ‘The law will take its own course,’ it is said, but it must be directed to follow the ‘guided course’ in a practical manner, as set by the Judiciary.

It may be pertinent to quote from an article which appeared in the Colombo Telegraph of 22/1/2020 under the caption ‘Contempt of Litigants  “Contempt of litigants is not only by voice but by silence, action and inaction of the Judiciary and those associated with it.” The Judges judge from the ‘bench’, and give their verdict from an elevated position but, the litigants Judge the judges from far below. The judgment pronounced by the judges will be heard loud and clear, while the litigant’s judgment will be unspoken and unheard. (Other relevant articles in Colombo Telegraph Deformed Judiciary 16/12/15, Verdict at large 28/6/18, Contempt of Justice 5/1/19) 

In conclusion, I would like to reproduce the extracts of on article written by James Andrew Wyne, Je, which appeared in the Marquette Law Review: “I submit to you that judges are different from political actors. The judges have a duty to uphold the sovereign will of the people as represented in our constitution and our laws and not to satisfy the popular will. With this in mind how do we better ensure that those are selected to serve as Judges Posses integrity, experience, professional competence, judicial experience and a demonstrated commitment to justice for all? And more importantly how do we better ensure that those who are selected possess the spirit of judicial independence?” (Internet)

Taking all what is stated above, how do we Judge the Judges and who will be responsible for it? 

It may be prudent to appoint a committee consisting of the members of Judiciary and senior/junior lawyer from the Bar Council who could think pragmatically. In addition, Litigants whose cases have gone on for over 5years or more and others who may matter, to explore the possibilities of Cutting Short the Laws Delays also should be included. The number of members of committee shall not be too unwieldy and the time frame should not exceed 3 months to submit the report. A subcommittee should study the report and recommend it for implementation, within 2months.

The members of the committee may be under 50/55 years of age and shall be relieved of their usual duties during their involvement in the committee, to facilitate their focus and conclude matters within the time frame. 

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Latest comments

  • 2
    0

    Dear Mr. Anaga,

    The Judiciary of a Country is the very backbone of the country. As you have emphasized it yourself all the accusations made against the judges are just public knowledge which has existed from the time of Sarath N. Silva since he became the Chief Justice. He created a Judicial Criminal Mafia along with several influential associates of his which ran over and overwhelmed the entire judiciary paralyzing it completely. To this day it is alive and kicking. From the Chief Justices down it has under its control all of the judges, judicial officers, Commissioners of Commissions under the tentacles of this mafia turning them to be mere pulp. Many acts committed by Mr. Silva while holding the position of the Chief Legal Officer of the land are heinous crimes in entirety.

    Legitimate complaints lodged with the Judicial Service Commission, Chief Justices, Attorney General, President of the Court of Appeal and the rest get thrown under the carpet due to their fear of reprisals by this mafia.

  • 3
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    1). The genuineness of citations by the eminent of the judiciary in the column is best assessed from recommendation in the Constitutional Assembly’s Judiciary Subcommittee Report (CAJSR) devoting nearly 7 of its 8 pages fortifying interests and well-being of judges and its fraternity including retirees while remaining grimly passive to resentful grievances of the litigants
    2). For e.g. CAJSR is passive on the urgency to abolish 70 day court holidays introduced in the Colonial Era but done way in UK four decades ago connoting disregard of the Judiciary to escalating case backlog nearly 850,000, with delay of nearly 12.5 years per case, forcing nearly 70,000 litigants to commute daily to courts mostly to find the next call update – thus if court holidays are abolished the delay would be reduced by nearly 30 month and more importantly fees of nearly 10 case call up dates
    3). Another is the e-court systems vital to surmount its disdainful inefficacy due to lack of know-how in management of planned and demand servicing depriving timely matching capacity for varying litigant needs and,
    4). also the equally important need, the support of Multidisciplinary “Lay Judge Benches” – that prevailed since the emergence of professional, legally trained judges in the twelfth century, struggled to find their place

  • 1
    0

    If all judges can get together and meet the challenges of Interference/Intervention by the President/Government, at least a quarter of the Judicial problems could be solved.

  • 0
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    The uploaded comment that appeared for a while has been thereafter truncated from para 4, enfeebling its prime meaning intended. Hence paras 4 to 6 uploaded again

    4) ……………. struggled to find their place – are now vital for protection of expectations of peoples sovereignty and expeditious dispensing justice Constitutionally entrusted to the Judiciary- a practice of many nations
    5) LBJ also needed to enrich the highly specialized narrow based knowledge of the fraternity, that’s void of basic scientific and mathematical knowhow commensurate with the societal needs, fast becoming heavily dependent on advancing science and technology – hence imperative for expeditious dispensing of transparent people centric jurisdictions
    6) All above aberrances accounts for the contempt of litigants by: voice, silence, action and inaction of the Judiciary and those associated with it.” An example is the Jurisdiction unheeding expertise warnings, upholding the tariff proposal Ref DG/Misc/07 flawed mathematically, also dismissal of its appeal that’s yet inhibiting declining costs of telecom technology benefiting the end user

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