17 September, 2021

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Judicial Corruption 

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

I grew up, spending my childhood, adolescence and early adult life, in the home of a judge who ended his judicial career as head of the country’s highest court. I also had the enviable experience of serving as his private secretary sometime between my graduation and entry into the profession. The life of a judge of that time, as I observed it, is perhaps best described in the words of Justice Michael Kirby of the High Court of Australia. The regime imposed on a judge, he said, “is monastic in many of its qualities”. Lord Hailsham, a former Lord Chancellor, described the vocation of a judge as being “something like a priesthood”. Sir Winston Churchill considered that “A form of life and conduct far more severe and restricted than that of ordinary people is required from judges”. While judges did not isolate themselves from the rest of society, or from school friends and former colleagues in the legal profession, they rarely, if ever, socialized with politicians. They declined to perform the quasi-executive function of serving on commissions of inquiry. In that relatively calm and stable economy, their salaries were rarely increased. They drove, or were driven, to Hulftsdorp in their own cars. They lived in their own homes, except for the Chief Justice who was provided with an official residence.

In the early 1960s, when I was admitted to the Bar, and began practising before the courts of this country, any suggestion that a judge or magistrate might be corrupt would have been so preposterous that, in fact, it was never heard. A strong tradition of integrity underpinned the judiciary at every level. At a time of immense change, both political and social, the judiciary remained constant in its commitment to equal justice under the law. Of course, the judiciary had its share of problems and its critics. The trial rolls were long; the backlog in the appellate court was enormous. The rules of civil and criminal procedure were Victorian. I recall expressing the exasperation of a starry-eyed young lawyer when, writing the annual report as honorary secretary of the Bar Council, I described the judicial system as an antique labyrinth with tortuous passages and cavities through which the potential litigant must grope, often blindfolded, in his search for justice. From below the Bench, some of the judges seemed short-tempered and discourteous; some seemed lazy – one, in particular, appeared to fall asleep from time to time; and not every judge appeared to be learned in the law. However, it was unthinkable that a judge could be corrupt.

The emergence of judicial corruption

It was some ten years later, in the 1970s, when I was serving as Permanent Secretary to the Ministry of Justice and also, ex officio, as a member of the Judicial Service Advisory Board, that I encountered, for the first time, a complaint that a magistrate had accepted a bribe. The complaint appeared to be true. When confronted, the magistrate resigned his office. It was also during this period that I saw and experienced, with considerable unease and sadness, how some serving judges could demean themselves, and the sanctity of their office, in the pursuit of preferential treatment from the executive branch of government. When some of these efforts proved to be rewarding, it was difficult not to become sceptical. It was time for the illusions of youth to disappear.

Conventional bribery

The picture changed dramatically in the 1980s and in the decades that followed. The civil, criminal and appellate procedural reforms of the 1970s which we introduced were repealed and the Victorian laws revived. Thereafter, many a litigant or accused person began to find it more economical to secure the disappearance of a case record or the absence of a witness than continue to retain counsel for prolonged periods when no progress was made in his or her case. Complicated procedural steps meant several gatekeepers requiring payment to facilitate movement to the next stage of judicial proceedings. 

In a direct mail survey in 50 Sri Lankan judicial stations conducted by the Marga Institute in 2002, civil litigants, virtual complainants, and remand prisoners reported to having paid bribes to lawyers’ clerks, court clerks, police officers and fiscals. Lawyers reported hundreds of incidents of bribery, the beneficiaries being the same. Several Judges admitted to being aware of such acts of bribery, and added members of the legal profession to the list of beneficiaries. Finally, the Judges identified at least five of their own brethren as bribe takers, three of them being in connection with the delivery of judgments. The report of that survey was published by the Marga Institute under the title: “A System Under Siege; An Inquiry into the Judicial System of Sri Lanka”.

Global phenomenon

Judicial corruption was not a Sri Lankan phenomenon. In Bangladesh, a national household survey revealed that 63% of those involved in litigation had paid bribes to either court officials or the opponents’ lawyer. In Tanzania, a commission of inquiry reported several instances of judicial officers accepting bribes to grant injunctions, reduce sentences or dismiss cases; accepting bribes from advocates to give preferential judgments; and colluding with auctioneers to share the receipts from selling property belonging to litigants. In Uganda, the Chairman of the Judicial Service Commission reported several complaints of judicial officers taking bribes to give bail or judgment. In Argentina, 57% of those polled said that they felt corruption was the main problem with the judiciary. In Honduras, three out of four polled believed the judiciary was corrupt. According to the Geneva-based Centre for the Independence of Judges and Lawyers, out of 48 countries covered in its annual report for 1999, judicial corruption was pervasive in 30 countries. 

Undue influence

Corruption in the judiciary is not limited to conventional bribery. An insidious and equally damaging form of corruption arises from the interaction between the judiciary and the executive, as well as from the relationship between the judiciary and the legal profession. For example, the political patronage through which a judge acquires his office can give rise to corruption if and when the executive makes demands on such judge. Similarly, when a family member regularly appears before a judge, or when a judge selectively ignores sentencing guidelines in cases where particular counsel appear, the conduct of the judge would give rise to the suspicion of corruption. So would a high rate of decisions in favour of the executive. Indeed, frequent socializing with particular members of the legal profession, the executive or the legislature, is almost certain to raise the suspicion that the judge is susceptible to undue influence in the discharge of his duties.

The blurring of a critical relationship

In Sri Lanka, a dramatic change in the relations between the judiciary and the executive occurred with the advent of the Executive President, the ultimate source of power and patronage. For example, in 1983, a Judge of the Supreme Court described to a parliamentary select committee his relations with the then President:

“I want to say this. My relations with His Excellency the President have been very cordial. In fact, I know him. I have only met Mrs Bandaranaike for a few seconds in my life. But I have known the President from 1948 and I have had very cordial relations with him. We had a common interest in history. I admire his culture, his refinement, and it was never my intention to do anything harmful to him personally. We have met at several functions at President’s House, at private dinners, and in 1981 he invited me and my wife for his birthday party at President’s House. We were very honoured. My community, my family, are his traditional supporters”.

The same Judge described how he enjoyed the hospitality of a Cabinet Minister:

Thanks to the hospitality of the Honourable Minister of Lands, we were all sent on that wonderful trip of the sites. We got younger. You know, we all went and it was a delightful trip. I wrote and told you about it. Lovely time, delightful! We were hoping we could make it a sort of annual trip.”

He also spoke about a prominent Opposition parliamentarian:

“His step-brother, Mr Michael Dias, has been a friend of mine since he was my tutor in the Lex Aquilia at Cambridge University in 1945-48. However, my friendship with Michael Dias has brought me no advantages. The two brothers are as different as chalk and cheese.  I think in 1973, Honourable Minister of Lands, your nephew Upul had that tragic death by drowning. I met you in the funeral house. That was a time when he was turning Hulftsdorp upside down. We had a conversation about that. I think I told you in plain, blunt, Anglo-Saxon what I thought of him. You may remember this. I wish to say that in the 1977 election nothing gave me greater pleasure than listening all night to the Dompe result.”

The blurring continues

The blurring of the critical relationship between the Judiciary and the Executive continued under later Presidents. For example, in 2004, on the eve of the general election, a Chief Justice, reputed for his political sagacity and legal acumen, participated in a religious ceremony in a Buddhist temple together with a Cabinet Minister and several candidates of a particular political party. The television camera constantly focused on the Chief Justice, who was seated at the feet of the Minister (who appeared to be on an elevated seat) during the long programme. Several years after he had left office, the same Chief Justice publicly apologized for not having given the right judgment in a politically sensitive case. “I am very sorry. I am asking the whole country: forgive me”, he was reported as having said (Sunday Times, 26 October 2014). 

In 2011, barely weeks after his retirement, another Chief Justice was appointed as an Adviser to the President. When a judge, and a Chief Justice at that, decides to take a great leap from the Supreme Court to the Presidential Secretariat to serve the executive branch at its core, the alarm bells must surely begin to ring. The country was entitled to know, but was not told, whether the Chief Justice had sought this position, or whether the Head of the Government had offered it to him, when and why.

In 2014, yet another Chief Justice travelled from Colombo to the deep south, to join the then President, his immediate family and his siblings, in celebrating the Sinhala and Hindu New Year rituals at the President’s “ancestral home”. Several pictures that were published showed the participants, including the Chief Justice, “attired in white and facing south” feeding milk rice to each other and engaging in other traditional transactions in what was essentially a family occasion. In the same year, the same Chief Justice joined the President’s entourage (which included Ministers and Members of Parliament) on an official visit to Italy and the Vatican. It was the first occasion when a Chief Justice had accompanied a political leader on a state visit abroad.

Such conduct too, was not peculiar to Sri Lanka. A former President of the Supreme Court of Jordan, speaking at a conference in 1999, provided several illustrations from his own personal experience of this form of judicial corruption. He described how judges were pressurized by executive authorities to render judgment contrary to law; received benefits from the government in the form of gifts in money or in kind; and offers of employment to the judges’ children. He also spoke of victimization when the decision did not accord with the wishes of the executive. 

The corrupting influence arising from the interaction between the judiciary and the executive has been documented by a Nigerian jurist. For example, he describes how a newly appointed judge, still undergoing training, was flown by a presidential jet to try a sensitive case of national importance and delivered his judgment by midnight; and how a judge trying a case of an opposition leader said he would need time to consult others before delivering his judgment. In Costa Rica, 54% of those polled believed that judicial decisions were subject to external “pressures”.

Combating Judicial Corruption

In 1997, after almost two decades in academia, I was persuaded by a former colleague at the Commonwealth Secretariat to “come down from the ivory towers” to work at Transparency International in Berlin. That non-governmental organization was then in its formative years, and one of its principal objectives was to identify sectors that were vulnerable to corruption, and then to formulate strategies to combat such corruption. It was there that credible evidence began surfacing of corruption in judicial systems. How should this phenomenon be addressed? Independence had always been considered to be the single fundamental requirement for a national judiciary.  Judicial independence is not a privilege of judicial office, but an essential pre-requisite for the protection of the people. How real was that protection if the evidence that was surfacing was an accurate reflection of the state of the judiciary? Was judicial independence being traded for money or other benefits?  Was adherence to the principle of judicial independence, by itself, sufficient to ensure the delivery of justice?  Was it now necessary to formulate and implement a concept of judicial accountability?  

Judicial Accountability

Accountability was not a new or novel concept. It is a constitutional requirement in a society based on the rule of law and democratic principles of governance that every power holder, whether in the legislature or the executive, is, in the final analysis, accountable to the people. Was there any reason why the judiciary, which is entrusted by the people with the exercise of judicial power, should not, individually and collectively, be accountable for the due performance of its functions? The challenge, however, was to determine how the judiciary could be held to account in a manner that was consistent with the principle of judicial independence. My colleague, the late Jeremy Pope, and I agreed that these were issues that were best resolved by the judges themselves.  

Judicial Integrity Group

For that purpose, we initiated discussions with a representative group of ten Chief Justices from Africa and the Asia-Pacific region who agreed to meet under the auspices of the United Nations. At that preparatory meeting in Vienna in April 2000, which was chaired by Judge Weeramantry, Vice-President of the International Court of Justice, the Judicial Integrity Group (as this group of Chief Justices is now known) agreed that judges should be accountable to the community they serve through their absolute adherence to a set of judicial values, and that a statement of core judicial values should be capable of being enforced by the judiciary without the intervention of the executive and legislative branches of government. The Group believed that transparency at every critical stage of the judicial process will enable the community, especially through its legal academics, civil society and a free media, to judge the judges.  

The Bangalore Principles of Judicial Conduct

At the request of the Group, I prepared an initial draft statement of principles of judicial conduct, drawing on rules and principles already articulated in national codes of conduct (wherever they existed) and in regional and international instruments. Over the next twenty months, that draft was widely disseminated among senior judges of both common law and civil law systems in over 75 countries. In November 2002, at the Peace Palace at The Hague, a revised draft was placed before a Round Table Meeting of Chief Justices drawn from both the civil and common law systems, at which Judges of the International Court of Justice also participated.  The final draft that emerged from that meeting – the Bangalore Principles of Judicial Conduct – identifies six core values of the judiciary: Independence, Impartiality, Personal Integrity, Propriety, Equality, and Competence and Diligence. 

In 2006, the Bangalore Principles were unanimously endorsed by the UN Economic and Social Commission (ECOSOC) in a resolution which requested Member States to encourage their judiciaries to develop rules with respect to the professional and ethical conduct of judges based on the Bangalore Principles. Sri Lanka has ignored that request.

Commentary and Implementation Measures

In 2007, at the request of ECOSOC, the Judicial Integrity Group developed a 175-page Commentary on the Bangalore Principles which has since been published by the UN and by national judiciaries in several languages. Sri Lanka has failed to take note of that. 

In 2010, the Judicial Integrity Group agreed on Measures for the Effective Implementation of the Bangalore Principles. That statement describes action required to be taken by the judiciary, and the institutional arrangements to be established by the State to secure judicial independence and accountability. Among the latter is an independent appointment mechanism with both judicial and non-judicial members to ensure that persons selected for judicial office are persons of ability, integrity and efficiency. Through the recently enacted 20th Amendment to the Constitution, Sri Lanka has rejected that requirement. 

Conclusion

The Bangalore Principles now provide the judiciary with a framework for regulating judicial conduct. It is the global standard. These Principles have been the model for codes of judicial conduct from Belize in the Caribbean to the Marshall Islands in the Pacific, from Tanzania to the Philippines, from Bolivia to Jordan. They were motivated by the need to address the phenomenon of judicial corruption. Many judiciaries across the world have profitably employed them to achieve that objective. However, the Sri Lankan Judiciary has chosen not to formulate or to implement a code of judicial conduct to regulate itself. 

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Latest comments

  • 13
    1

    Judicial Corruption is now pandemic in Sri Lanka. Judiciary is now not only face Money Value but also face Life Value. Even if you want to deliver justice you are not allowed to do so unless you and your family are not allowed to exist anymore. President JRJ said he can’t only change men to women or vice versa but now President can change that as well.

  • 3
    0

    May I please pray to your Honour Dr. Nihal Jayawickrama , how may one secure justice when the guardians of the law and order conspire together with a highly notorious criminal gang to kidnap and subsequently taking illegal possession of the valuable property of his? The District Court, High Court and the Supreme Court rubber stamped and blessed the treasonable counterclaim made up of forgeries with names of well known criminals sticking out like a sore thumb making it a double whammy by loosing the rest, after investing a fortune in time and money praying for justice. It must be stressed that the claims established in the Court are clear cut and dry like Milk viz Charcoal.The long arm of the law is chopped off by the Mafia. The Officials are stiff scared to go against them. The Appeals to the Minister of Justice and Attorney General have gone into stony deaf ears plugged in by the Mafia which is operating under the roof of BASL.

    • 0
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      The funny irony is The Mr. Ombudsman as the judge who initiated the trial in DC Colombo, in spite of being privy to all the hanky-panky that took place, The Presidential Commission of Inquiry into Bribery and Corruption, Human Rights Commission, Bribery Commission, Police Commission, CID and the Crime Prevention Division of the Police, are unanimous by saying that the omnipotent judiciary is out of bounds for them even though the Emperor is stark naked, that indeed He is.

  • 8
    0

    ………..”In Sri Lanka, a dramatic change in the relations between the judiciary and the executive occurred with the advent of the Executive President”……………
    Did not the rot of political patronage set in, when Sirimavo Govt. appointed Jaya Pathirana as a SC judge in 1972, and this JP was a former SLFP MP in the 1960s. First time a politico was appointed to the Bench.
    Hope Nihal J will acknowledge this was before the 1978 Executive Presidency and when the Author himself was the Secretary of the Justice Ministry.
    Should not “ the alarm bells must surely have begun to ring” at that moment in time?
    While I agree with your conclusion, …”These Principles have been the model for codes of judicial conduct……. They were motivated by the need to address the phenomenon of judicial corruption”…….
    should not this begin at childbirth as it were – when judges are appointed.
    So there must FIRST be safeguards in the Constitution imposed on the appointing Authority as to the evaluation of the moral integrity of the appointee and legal competence to ensure that justice is done to the ideal that justice should be applied without regard to wealth, power, or other status.
    Only then, that the rest will follow.

    • 0
      0

      The procedure followed in the appointment of the Judges of the Supreme Court during the seven-year period that I served as Permanent Secretary to the Ministry of Justice was no different from the previous procedure. Whenever a vacancy occurred, the candidates eligible for appointment were the Solicitor-General and the most senior District Judge. In order to maintain a desirable balance on the Court, we also looked to the unofficial Bar. We were able to persuade several senior members of the Bar (S.Sharvananda, W.D. Gunasekera, Malcolm Perera, T.W. Rajaratnam, S.W. Walpita, Jaya Pathirana, etc.,) to accept appointment. Jaya Pathirana was a senior civil practitioner from Kurunegala. Being a former MP was not considered a disqualification; Justice E.F.N. Grataien was an MP at the time of his appointment to the Supreme Court. The Ministry always consulted the Chairman of the Bar Council, the Attorney-General and the Chief Justice before making a recommendation to the Prime Minister who, if she accepted the recommendation, then advised the Governor-General (later President) to make the appointment.

  • 6
    1

    Facile est descensus Averno. Easy is the descent to hell.
    Thank you for this excellent article. While at it, perhaps, you could, having had a ringside seat, write at length to explain, firstly your own role and that of Felix Dias, in the erosion of the esteem the judiciary was held in. Then you could also describe the role of the new constitution that was drafted in which also you had a role. This may take a book but you must indicate, neutrally and dispassionately, your account of what happened. I came a few years after you but I have a negative impression of the role you played. It is necessary to dispel that impression if it is not legitimate. Please write a short book stating your case. I appreciate the learning in this article. It should not go waste. Please write a book on the constitutional history of Sri Lanka. You were able to have a ringside view of it.

    • 1
      0

      I have written a detailed account of the drafting of the 1972 Constitution. My chapter: “Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective” is published at pages 42-124 in Asanga Welikala (ed.), “The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice””, Volume 1, Centre for Policy Alternatives, Colombo, December 2012.

  • 7
    0

    Take my word, next year when the UNHRC meets another clause will be added on to SL resolution that will draw attention to Judicial corruption in the country.

  • 6
    0

    In my opinion, the “Professional Life” of anyone involved in “Justice” starts with receiving “Accreditation” from the Law College. For the “First” time a candidate taking that “Jump” was given “Special Accommodation” differing from the rest of the candidates to “Facilitate” that “Easy Jump”. One of the candidates, who “Protested” over that “Special Accommodation” was severy dealt with by a group of thugs and fortunately escaped death. That candidate now lives in Switzerland. Then next comes “Administering the Oath”. For the “FIRST” time a “Chief Justice” poses for a “Photo Session” with a “Royal” candidate, while the “REST” were denied such “Royal Blessings”. This same “Chief Justice” made a “Request” to the “King” to appoint her husband to a “High Seat” in a Government Bank. Later the “King” admitting to complying with the “Request” said: “How can I refuse a request from the CJ”. In another occasion at a wedding ceremony, attended on an “Invitation” the same “King” present a “Car Key” as the “Wedding Gift” to the bride’s mother who was a “Judge” and still holding a “High Position” in a Law Enforcement Agency even after “Retirement”. Imagine another “CJ” “Begging” from a “King” to retain him in the post “Pledging” to give “Judgements” as per “Directives” and the same “ex CJ” getting a “High Position” in a World Body” as UNO.

  • 20
    0

    As the author has proved his points by quoting solid references (albeit without names in many cases) it would seem in order that readers accept his premise that the judiciary and its members have much corruption in its ranks. Is this why Ranjan Ramanayake, Sri Lankan member of parliament who dared to express these same sentiments publicly was sentenced to four years rigorous imprisonment for contempt of court?

  • 3
    5

    Dr.Lasantha Pethiyagoda
    .
    Ranjan’s horrendous punishment is not a case of judicial corruption.
    It is an example of wrong law for which the entire legal fraternity is responsible.
    Judges are there to interpret the law blind folded and prescribe the medicine in the book.
    IF the law says ” stealing is illegal UNDER ‘ALL’ CIRCUMSTANCES and punishable with a minimum of three months in jail” the judge who jailed the poor mother who stole a jack fruit to feed her starving children cannot be blamed.
    .
    Back to RR, a collective of legal professionals should request a ‘pardon’ from President followed by proposals of appropriate amendments to the existing law surrounding Contempt of Court.

    Soma

  • 3
    4

    Ranil’s resistance to contribute Rome Accord is more damaging in corrupting the Justice System than JR’s EP invention. JR’s intention was that he wanted to control the Judiciary Branch. It was not directly aimed at corrupting the system. That is, if JR was not corrupted, then the justice system control by him could also, would have been clean. But Ranil wanted to save the Rapist Army’s dangerous and inhuman activities in Jaffna, against Tamils. So he saved them that time, by resisting to sign Rome Accord. Later, during Yahapalanaya time, he saved the Royals from IC investigation. All other leaders contribution cannot add up to the damage Ranil did to the country’s legal system’s corruption. He is the impunity King. The way he created 19A to satisfy whimsies made it to go out as soon as he left parliament. But reading the bombastic legal line in the 19A, people think he created the Independent Commissions. In fact this feature was new introduction all over the world and recommended by UN, in 17A time. Probably that may coming from “Bangalore Principles “.

  • 7
    0

    Ranjan R must be a victim of this setup, truly shameful.

    • 1
      2

      No dear Nòel, refer to my response above to Dr.Lasantha Pethiyagoda.
      They say wrong law is the worst tyranny.

      Soma

  • 0
    0

    The funny irony is The Mr. Ombudsman as the judge who initiated the trial in DC Colombo, in spite of being privy to all the hanky-panky that took place, The Presidential Commission of Inquiry into Bribery and Corruption, Human Rights Commission, Bribery Commission, Police Commission, CID and the Crime Prevention Division of the Police, are unanimous by saying that the omnipotent judiciary is out of bounds for them even though the Emperor is stark naked, that indeed He is.

  • 2
    1

    The rot has set in much earlier than what is quoted. I am sure many of us can relate to incidents where the judiciary/lawyers were involved in corruption/bias/favors the difference is what was scuttle and sporadic and now become overt and ugly leading to a failed system. Thanks to Rajapaksas for creating “low and odor” (sarath, mohan,eva, ex CJ—) . Sircular presented this as creating a “lawful and moral” nation to get elected.

  • 0
    0

    Dear Hon. Mr. Ali Sabri. What plans you have to retrieve and resurrect the Justice System of Srilanka as the Minister of Justice making it the number one priority like COVED19 eradication? COVD19 which has got the Minister of Health engrossed, the justice system which indeed is the backbone of a Nation is stuck with spinal cancer of corruption at the highest level desperately needs your urgent attention for sure.

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