By Sinha Ratnatunga – This is the Sunday Times Editorial – December 15, 2013 –
The legal fraternity, or at least most Colombo-based lawyers and judges, enjoyed a convivial evening on Friday at the annual Voet Lights Society dinner as the year draws to a close. Those present could reflect on the good humoured barbs, especially at the expense of the judiciary. They might be left with the thought if a joke can also be a serious thing.
It was also the end of a year that began in turmoil with the unceremonious impeachment of a sitting Chief Justice and the unease that prevailed in the corridors of justice has not entirely abated. The Chief Justice who was present, ducked speaking at the dinner. Discretion was the better part of valour.
There was surely a sense of regret and disillusionment that the public’s esteem for the Law, the Courts, and for Justice had been so eroded and not wholly due to the conduct of the legal profession. That the administration of justice was slipping into an abyss, and is no longer on the elevated pedestal in which the ‘Nadukara Hamuduruwo’ was once held, is clear today. Every effort has been made to turn the judiciary into a “Government Court” — a mere rubber stamp of the Executive.
Recent appointments by the President have made it crystal clear in the minds of judges, lawyers, litigants and the public that absolute loyalty to the ruling party precedes seniority, experience and competence. Bypassing of senior Court of Appeal judges by ‘high-jumpers’ and ‘long-jumpers’ has left a gaping hole on two counts — (a) the demoralising of independent judges to the point of making them ill, and (b) the creation of a huge void in integrity insofar as the law is concerned.
In a court such as the Supreme Court where “the judgments…. shall, in all cases be final and conclusive” and which has jurisdiction to correct “all errors in fact or law committed by any subordinate court”, there was always, hitherto, the underlying truth that the Judiciary was the last bastion of the citizen and that justice would be rendered at the end of the day; that the principle ‘all are equal before the law and accorded equal protection of the law’ shall prevail. Today, such a lofty expectation is a joke, sad to say. From bribery and corruption to murder and intimidation, and from the misuse of state power to the exploitation of state property, everything is done to pervert the course of justice and protect members of the ruling party while the rest could be thrown to ravenous wolves. And yet, more than 90 per cent of cases that come before these appellate courts are of a non-political nature, just disputes between parties. What is the quality of justice that is meted out, one may well ask.
The 17th Amendment to the Constitution and the Constitutional Court that it provided for, gave a hint of credibility that the seemingly irreversible trend of political interference in the appointment of senior judges could be remedied. The 18th Amendment threw all those good intentions of the Legislature to the winds.
Political interference did not happen overnight; it was a trend that crept in progressively over the years. In 1964, the then Chief Justice Hema Basnayake in his farewell speech complained that conventions that governed the relations between the Supreme Court and the Executive scrupulously observed had seen a departure. His successor M.C. Sansoni was equally unhappy about the “changing scene” (The Supreme Court; the first 185 years by A.R.B. Amarasinghe J.). Victor Tennekoon CJ’s running battles with the then Minister of Justice Felix R. Dias Bandaranaike over the seating arrangements at ceremonial sittings are legendary as was Neville Samarakoon CJ’s ‘clash of the Titans’ with President J.R. Jayewardene and R.S. Wanasundera J’s refusal to sign an undated letter of resignation which cost him the Chief Justiceship under the same President.
Those were giants of the time for whom the independence of the judiciary and personal integrity meant the world, and for whom the office itself would be a ‘mess of pottage’ were they to compromise it. They dared challenge the inroads made by the Executive on the independence of the Judiciary, which is not an esoteric entity of pompous men in wigs and distinctive gowns, but a living institution that is the embodiment of the legal rights of the ordinary citizen. Last week, when the votes of the Ministry of Justice were taken up in Parliament, the Minister announced that a Code of Conduct for judges was soon to be gazetted. Interesting that politicians are recommending codes for everyone other than themselves. The Minister’s assertion however, needs to be taken with a pinch of salt, for he promised to introduce a Contempt of Court Act, a Child Protection Law and the appointment of pre-trial judges among “revolutionary” changes this year when he spoke on the same votes last year in Parliament.
No one would oppose a Code of Conduct for a judge provided it is drafted by senior judges themselves like the Supreme Court Rules that give guidelines on how senior judges must set about conducting the business of courts. The Minister says this Code will be based on the Bangalore Principles (of Judicial Conduct) and the Commonwealth Latimer House Principles that set out the relationship between Parliament, the Judiciary and the Executive. What earthly use though is a Code for a judge when the wider aspects of the Bangalore Principles or the Latimer House Principles are disregarded by the all-powerful Executive.
The Bangalore Principles call for six core values from a judge — independence, impartiality, integrity, propriety, equality and competence. When the Executive does not recognise any of these principles, and rewards only those it thinks will give their imprimatur to Government dictates or when the Latimer House Principles call for harmonious balancing of power between the three arms of the State and one looks at the way the Executive – and the Legislature have conducted themselves recently, it makes a mockery of a Code for judges.
The Latimer House Principles call for a restraining of the powers of each of the three institutions to enable the others to discharge their constitutional duties without encroaching on the powers of the other. The manner in which the Government reacted just this week to an Opposition MP’s private members’ motion seeking to protect the tenure of a judge is a clear give-away of its intentions to control the entry and exit of judges.
The administration of justice, from bribery at the level of the minor staff at the record room to the recent examination scam at Law College to the loss of dockets (case records) and the delay in delivering judgments is in itself a reflection of the sorry state of affairs that prevails. Through the ‘snakes and ladders’ appointments to high judicial office, the Government has made it clear, both to the judicial officers and the public servants that it rewards blind loyalty and tolerates no independence.
The moral of the story is that it is no longer the Rule of Law but the Rule of the Executive. The days of the monarchy may be long over, and the times when the King is Law have passed into labyrinth of history. Today, the Law is King not the other way around all over the democratic world of free citizens, but is it so in Sri Lanka?