5 December, 2020

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Judiciary Should Not Be Subject To Perks

By Ananda Markalanda

Ananda Markalanda

Ananda Markalanda

Judiciary should not be subject to perks, whims and passions of the executive

At a time we celebrate 68 years of Independence with pomp & glory, it seems most media is focusing headlines on Rajapaksas, Gnanasaras, Wele Sudas, Weerawansas and Ministers. Our pressing issue of Sri Lanka’s judiciary is conveniently ignored though it is under heavy pressure to restore its independence and integrity from inside and out. We don’t want a justice system that undermines its independence and compromising its integrity, permitting the international community and the professional body of lawyers of Sri Lanka to make remarks detrimental to the people’s trust and confidence in it. We should not be surprised that our country’s judicial system might undergo further scrutiny based on the happenings of last two decades beginning with corrupted CJ’s in the caliber of Sarath N Silva, Asoka De Silva, and Shirani Bandaranayake, Mohan Pieris and again Bandaranayke to K. Sripavan. Look at their behaviors from the bench and now finding its way to general acceptance. This was observed by many independent organizations including UN and Commonwealth. This is our revered Supreme Court.

Justice-Upali-Abeyrathne-Justice-Anil-Gunaratne-CJ-Sripavan.During his tenure as Attorney-General and the government’s top Legal Advisor Mohan Pieris consistently blocked efforts to hold the government responsible for serious human rights violations and disregarded international law and standards, said Sam Zarifi, ICJ’s Asia director. President Mahinda Rajapaksa appointed the eighth most junior person of the Attorney General’s office, Buveneka Aluvihare, to the Supreme Court. Aluvihare was one of two individuals who successfully prosecuted and obtained a conviction against General Sarath Fonseka, President Mahinda Rajapaksa’s main political rival in the 2010 election In January 2013, immediately following the impeachment of Chief Justice Bandaranayake, the President appointed his own former legal advisor and Attorney-General Mohan Pieris as the new Chief Justice. Mohan Pireis had never served as a judge. During his 33-month tenure as Attorney-General, he did not prosecute a single case of crimes committed against journalists, human rights defenders or lawyers. A Mannar District Court judge was threatened by a Government Minister. The Secretary of the Judicial Service Commission was assaulted by four men with a pistol and an iron bar in his car on a public street, resulting in his hospitalization. No action and Minister is still a Minister.

Many believe these practices have contributed to what ails our Nation: compelling to turn off courthouse lights and kick out corrupted judges or subpoena them to elaborate on their opinions as to how they made decisions while the same judges who made upright decisions were sacked or impeached when it was not in favor of the government. This is the state of our judiciary today.

Some of the judges who got their position due to political connections seek to undo more than 68 years of independence of judiciary and constitutional democracy rather than strengthen what is the one “safe place” for any Sri Lankan to go to resolve a dispute or seek protection.

Our nation’s Constitution specifically separated our government into three co-equal branches by design: to prevent the excessive accumulation of power by the legislative, executive or judicial branches. All three also have the tools to check the other two and hold them to their defined purpose without encroaching each other territories. UN and Commonwealth of which Sri Lanka remains a member have long recognized this constitutional system of checks and balances.

Today in Sri Lanka, the judiciary is in continual jeopardy of being overpowered, awed or influenced by its co-ordinate branches, led by politicians and corrosion by some inside. Judicial independence is critical to sustaining our democratic form of government developed through history. Judges must have the ability to make decisions to protect and enforce the rights of the people – including the protection and defending of rights of the citizens against the tyranny of the government. Their decisions should be made without fear of reprisal or favor, and they should not be subject to the whims and passions of the political season. The public must have confidence that judges will be impartial, making decisions by applying the law to the merits of the case while not being swayed by outside influence.

That outside influence can be overt or subtle: The judiciary isn’t a powerful interest group. Courts cannot raise money or marshal voters. Our courts are easy targets because judges individually cannot respond to these attacks with our country’s growing population and fragile economy, elected officials and those seeking office would be wise to focus their attention on the fundamental problems facing our courts. Our judicial system is on the verge of becoming nonfunctional and irrelevant because of increasing workloads and inadequate funding. The judiciary suffers from a chronic undersupply of judges of learning and experienced in the laws, of exemplary morals, great patience, calmness and attention, those with their minds not distracted with jarring interests, not dependent upon any man or body of men for their perks. Today delays in cases with constitutional time limits are ballooning with extensions that have led to delayed judgements and increasing costs of maintaining growing docket of cases, naturally loosing the people’s confidence.

No one claims that judges are infallible. That is why we have multi-layer appellate courts within the judiciary, and a system of checks and balances and a separation of powers among the branches. We can and should pursue a thoughtful conversation about how to improve and strengthen our judicial system at all levels without denigrating individual judges or undermining judicial independence.

No one likes a bully — be it an office holder, a candidate for public office or a branch of government. Will ours be defined by the ones we destroy? Let’s stand up for one of our most precious monuments – our judiciary – as a place of integrity and independence, and as a refuge for those in our society who seek to enforce their rights and protection of their freedoms.

Naturally our democracy, liberty, freedom and future will not be safe without an independent, upright and fearless Judiciary

References: Lankaeaglenews –article Expected Returns 13/01/07, Crisis Group-Asia Report 172 2009/6, Sunday Leader 11/12/18, Transparency International-Governace Report 2012-2013 and many Sri Lankan newspapers

 

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Latest comments

  • 5
    1

    what is happening to this decline in our society. Look at the white clad King Rats,breeding to feed themselves while fleeing to get out!
    Why are we like this and should we invite colonists back ?
    Still the elites are ‘kalu suddas’

  • 8
    2

    The only way for our country to prosper is to uphold the rule of law.

    Unfortunately not sure as to whether we have judges and a committed AGs dept to fulfill this task.

  • 6
    0

    We have a pseudo justice system. The Attorney General Department is the worst and would do any dirty work to be in good books of the government. They know that is the only way to move forward with assured all kind of perks.

    Judges have their own agenda. They probably know that they have entrenched system with people denied to come near and see what actually happens within.

  • 5
    0

    68 years and we still persist in apeing our old colonial master. How ridiculous our judges look in their pantomime outfit – red riding hood gown and fastidious wig. No wonder the foreigners patronise us when we brown sahibs cling to these antediluvian relics.

    • 2
      0

      Spring Koha
      Do you think a change to Yellow gown and a red dot on the forehead and a blue and green turban headgear be the best native attire for our judges?

  • 4
    0

    I agree with Spring Koha and many others.

    Just take a look at these august members of our august judiciary dressed in ‘Christmas Pappa’ outfits.

    And then why on heavens earth do we wear full suits for weddings replete with a waistcoat, that goes against all forms of rational thinking when compared to the sweltering heat in which we walk around in these ridiculously overheating garbs.

    And let me not start on the noose that we call the tie, that even the least minionic powerdisplayer like to display himself in….

    And where the hell did the politicians get that ‘Ariya Sinhala’ suit that has no bearing to the ‘Sinha Le’ heritage and of recent times the emergence of the added ‘satakaya’ also.

    Come to think of it the saree should also fall into the same superfluous category. Meters and meters of expensive cloth most of it wasted getting camouflaged with layers and layers of the same cloth yet not enough to cover the ‘buriya’.

    And yet we quickly jump up and denigrate the Muslim women for wearing the gonibilla hijab, justifiably or not.

    Ah but then this is the thrice blessed miracle of Asia, isn’t it.

    • 1
      0

      BBS Rep

      “recent times the emergence of the added ‘satakaya’ also”

      Satakaya fashion accessory is imported from Tamil Nadu.

      “And let me not start on the noose that we call the tie, that even the least minionic powerdisplayer like to display himself in…”

      Tie is something that hangs from men’s neck which is used to wipe one’s mouth after a good meal.

    • 0
      0

      @BBS Rep / @Spring Koha

      Just curious.. what do you people wear normally during the following ?

      Lounging around at home,
      Work
      Wedding
      Party,
      Beach
      Job Interview
      Funeral

      And what do you expect others to wear when attending an event where you are hosting ?

  • 2
    0

    When the Suddha ( white man) first came to our land, only the aristocracy was clad in reams of cloth. The ordinary people covered their lower parts with a piece of cloth, had a cloth on their shoulders and were topless ( both men and women). A shoulder cloth was used to wipe the sweat and also served as a head wrap to shield the head from the sun.

    Can we adopt this dress form and make a new fashion statement for the world to emulate? This will have a tremendous impact on the cost of living too.

    Dr.Rajasingham Narendran

    • 0
      0

      We had many dresses and based on our climate we were casual in Jaffna and in Kandy and other places andin our daily life. In ceremonies we had regalia.

      Cultures changed as we move on.
      Mark Twain once ridiculed us for wearing suits in the hot sun and we continue to do that as we have no pride being who we are.
      Just like we adopt ‘pukka shaib’ culture to be recognized as elites!!

  • 0
    0

    Might be a good idea to get foreign judges i.e from the sudu commonwealth countries for a few years to sort out the current mess. This is a suggestion to the C C and the law makers.

  • 0
    0

    The practice of giving SC Judges appointments after they retire is a pernicious one. Perhaps the independence of judges could be maintained if they are given their full salary as a pension after they retire – like Field Marshals!

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