22 June, 2021

Blog

Reforming The Judiciary In A Civilized Manner

By Rajiva Wijesinha

Dr. Rajiva Wijesinha MP

I am sorry about the current attempt to impeach the Chief Justice, since it seems to me rather like taking a sledgehammer to crack a nut. What makes it worse is that those responsible for the impeachment motion seem to be going after the wrong nut.

Over the last year, in trying to expedite implementation of the National Human Rights Action Plan, I noted many problems arising from the failure of the judiciary to establish norms with regard to the processes entrusted to them. I sent several letters on this subject, to the Chief Justice as well as the Judicial Services Commission, but initially received only dusty replies, ie claims that the responsibility was not theirs.

Recently though – and this may reflect the fact that the Judiciary realized it could not go on in an ivory tower with no regard for basic human problems – I got more positive answers, and most notably the assertion that advice had been given to the magistracy with regard to rulings. However my subsequent request, that that advice be made public, has been thus far ignored. I am sorry about this, because the public has a right to know the norms under which judgments and sentencing are imposed.

We had also, at meetings of the Task Force on the Plan which I convene, suggested meetings to ensure that magistrates were more careful about fulfilling their responsibilities, not only with regard to sentencing, but also for visiting prisons and remand homes. This happened rarely, though I should also note the commitment of a few members of the judiciary who did take such responsibilities seriously.

The Secretary to the Ministry of Justice then wrote to the Judiciary asking that a meeting be convened, but she did not get a response. I have urged her to take the matter up again, but I can understand diffidence if there seems to be no interest. That is why I brought the matter up with the Presidential Secretariat, which now has responsibility for the Attorney General’s Department and the Legal Draughtsman’s Department. Unfortunately that initiative too did not find a response.

Underlying the problem is a failure I think to understand two cardinal principles, and to maintain a distinction between them. The judiciary must be independent, because their primary responsibility is to the people and often the state is involved in litigation. Whether with regard to criminal matters, or constitutional matters, the judiciary has to decide between the government and the people, and therefore it must remain independent of the government with regard to the decisions it delivers.

However the judiciary has to decide in accordance with the laws, and it is the business of Parliament, not the judiciary, to make law. The judiciary may decide that laws are in conflict with the Constitution but, unless this is the case, the judiciary has no business to go against duly approved legislature, simply on the grounds that it could have been better. And it certainly should not ignore laws when they establish safeguards for the people, such as limitations on the period for which people can be remanded, or provisions for visiting places of detention.

It is possible that the judiciary may realize, after laws have been in operation, that they present problems, as for instance with the law about statutory rape. Applying that in a case of obvious mutual consent, where the couple got married when the age of majority was reached, seems unfair. But, as has been pointed out by wise judges, there are ways to deal with such problems, by introducing a suspended sentence subject to review by Parliament of the legislation it had introduced.

One problem that we face is that there is no proper provision for judicial review of legislation. This also extends to judgments of the Courts that are blatantly absurd, but the conservatism of the judiciary means that these are not changed. Thus we have the anomaly of the former Chief Justice having ruled, wrongly as I have argued, that the former President’s term of office finished in 2005, whereas the present President, rightly, having been elected for a second term in January 2010, only took his oaths ten months later, in terms of the Constitution.

It was of course foolish for the former President to have taken her oaths at the wrong time, and then taken them secretly again later, which led to the ambiguity of which, with his customary brilliance at proving whatever he wanted to prove, the former Chief Justice took advantage. But it is absurd that we have to live with two conflicting versions of what a particular section of the Constitution means.

Given such problems, I believe government should arrange a workshop with representation from the judiciary, to work out how to entrench the independence of the different branches of government whilst also strengthening accountability of all of them, including the Judiciary, to the people. The accountability of the Executive and the Legislature is based on elections, though I believe we should introduce measures such as the Right to Information and publication of the proceedings of parliamentary oversight, to improve the process.

But, with regard to the judiciary, where elections are not possible, there must be much stronger insistence on transparency, along with better mechanisms for ensuring consistency and adherence to established norms. This should also be accompanied by more effective training programmes, with regard not only to decision making but also the writing of judgments. Recently I was deeply saddened to find that the Judiciary had turned down a programme of training prepared by the Colombo University Centre for Human Rights, which the previous Chief Justice had approved.

The present Chief Justice may be diffident about the University, given her own background, but that should not have stood in the way of better training for her peers. Certainly her failure to do better in this and other respects should be overcome; but through discussion, not impeachment.

From Rajiva Wijesinha’s blog

*Dr. Rajiva Wijesinha MP is the leader of the Liberal Party Sri Lanka, Chair of the Council of Asian Liberals and Democrats

Related post; Impeachment Of The Chief Justice In Sri Lanka: A Comparison By Kamal Nissanka the Secretary General of the Liberal Party of Sri Lanka

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Latest comments

  • 0
    0

    What Action Plan?
    Was the shooting deaths of 27 prisoners,and wounding of several more by STF according to human rights?
    In the old days, an unruly crowd anywhere, were warned three times,then there were baton charges,then firing above their heads & if this had no effect,shooting below knee level,to avoid fatalities.
    This always dispersed them.
    Now there are even rubber bullets to avoid fatal injuries.
    Does this mean that the STF have no inking of Human Rights,& rights of citizens.
    State personnel with arms,should be the first to receive teaching about,and instructions on, human rights during their interaction with citizens.
    Purposely shooting with intent to kill,at persons confined to an area or building is murder.

    • 0
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      In the old days what we saw as worst were stabbing with a knife or in rare cases throwing acid.

      Now bombs, automatic guns…

      War was won the hard way due to Gotabhaya R’s courage but the civil affairs are all in a big mess.

      Signs of decay are all over. MahindaR is becoming another JRJ who failed in everything he touched.

      Most important thing is MR should give jobs to those who are qualified not to his yes men.

      For example in NSB, INsurance Corp there must be career officers who are competent and deserving promotions.

  • 0
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    What pompous tripe! typical of the man!

  • 0
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    Rajiva Wijesinha:
    The real tragedy in all this is that a monumental sycophant without an atom of decency should be afforded space in something like Colombo Telegraph. Now I’ve heard it all: one of Mahinda Rajapaksa’s prime stooges talking about principles of various kinds!
    Have you, truly, no shame?

  • 0
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    Rajiva, Who breaks a butterfly on a wheel?
    The regime that you support is murderous, brutal and unscrupulous and will stop at nothing to satisfy its base desires and greed for money and power!
    Your tale here is a story of institutional paralysis and failure due to institutional decay as a result of political interference in all governance processes and institutions by the barbaric and profoundly uneducated and uncultured and VIOLENT Rajapakse brothers. People are scared to do the RIGHT THING! Justice is retrograde today. To blame the CJ, with all her faults, for the AG’s failure is a bit rich! You must know this by now, so please do not keep burying your head in the sand like an ostrich. Take a stand and call it quits and dump the murderous Rajapassa regime. There are other things (like ethical practice) to do in life and a person with you background knows this!

  • 0
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    Professor, we need the 17th Amendment back.

  • 0
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    Dr Rajiva is a good man but his words are ineffectual because he tries to find excuses for the regime. Before he sets out to reform the judiciary in a civilized manner shouldnt he reform the Executive Presidency which is causeing all this havoc. After all he is a Presidiential adviser isnt he?

    Most probably he is upstaged by upstarts of the calibre of Weerawansa, Champika and Sajin. They have his ear and are the foot soldiers of the President. Perhaps it is not possible to reform the Presidiency in a civilized manner because Pres has got addicted to the trappings of power. Power corrupts and absolute power corrupts absolutely.Try being a bit uncivilized at times, within the law of course.

    • 0
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      Safa:
      The only explanation for your comments is that you belong in the same ethical garbage heap as Wijesinha.
      Please don’t insult our intelligence with stupid excuses for this unmentionable man.

  • 0
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    It appears that Dr. Wijesinha is playing an important role in the implementation of the so called National Human Rights Action Plan. By the way is he not one of the MPs who voted for the 18th Amendment that paved the way for the advent of a dictatorship that has destroyed democracy and is riding roughshod over the human rights in the country?

    Some so called intellectuals who are beneficiaries of this despotic regime are trotting out excuses to either justify the impeachment attempt or convey the impression that there are bona fide reasons for the regime to make this (malicious) move. Reforming the judiciary in a more civilized manner! My foot! First let this government reform itself in accord with democratic norms and allow the judiciary to function independently.

    By the way, DR. Wijesinha, will you not vote for the impeachment motion if it is presented in Parliament?

    Incidentally,what concrete steps has this regime taken to safeguard the human rights? I think Dr. W is in a position to explain. Has the regime implemented any of the vital recommendations made by the LLRC? This government adopted the 18th Amendment with unusual alacrity unprecedented in the Constitutional history of the country. Why don’t you, Dr. Wijesinha prevail on your government to implement at least the following measures with similar enthusiasm and alacrity:

    * Repealing the 18th Amendment and reintroducing the 17th Amendment with more teeth for safeguards of human rights and checks and balances.

    * Repealing provisions under Article 35 that confer on the President immunity from law suit.

    * Passing the proposed Right to Information Bill

    If you get at least these measures implemented by this government, you will be in a stronger position to hold a brief for it at international HR forums. And it will add weight and credibility to the sermons you preach so often!

    *

  • 0
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    I think the constitution was amended by various sitting presidents to suit their desires. That’s the reason why JRJ said the only thing he cannot do is to make a woman a man. In 2005 everything went upside down when CJ Sarath Silva allowed opposition MP’s to cross. So the judiciary was made a mere lame duck by the executive and now we see the climax of it. Now parliament 2/3 gives the president even to make a woman a man meaning to change a a woman CJ to a puppet man CJ overnight. We have to change this mind set with a fresh constitution that suits for people and not to fulfill executive’s egos.

  • 0
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    What a hypocrite!Has this man no shame? Why does Colombo elegraph accept articles from these ‘respectable criminals”?

    • 0
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      Because CT also accepts stories from fake human rights activist like the living saint, Mr S. V. Kirubaharan. So liars from both sides get published.

      • 0
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        Empty vessels makes the most noice.

  • 0
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    Dr. Wijesinha speaks of judicial transparency, even though the Government he represents and the regime he apologizes for regularly does all of its business in the shadows.
    All his arguments come down to one thing – when the time comes will he vote against the impeachment or do as his boss says?

  • 0
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    Pathetic – considering the levels he has stooped to in trying to justify the excesses of the regime. What a ‘Liberal’!

  • 0
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    One time all good professors has become mad dogs with Rajapakses dirty political games. Most senior prof in the Rajapakses regime only brought Shiranee Bandaranayake into the judiciary in the CBK’s regime which is a foolish act according to the junior prof. It’s very surprice to note that while this so called prof is in the cabinet of Rajapakse only she gave oaths as CJ. Then she was good for every one. Once she gave judgements against their whims and fancies she is bad. What a foolish logic of our good prof. May God bless Sri Lanka.

  • 0
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    I thought you were going to say that Chief Justice Chief Justice Shirani Bandaranayake also got blue eyes.

    You are liar. I dont consider you anymore as an academic.

    Where is the photographs of the Blue eye children that you have seen in the IDP camps in May 2009?

    Were they all raped and killed by relatives, Rajapaksas.

    Blue eye Rajiva Wijesinha, I have seen in the Liberal party websie that your dog has blue eye!

  • 0
    0

    The fashionable non-conformist high jacked the word “Liberal”
    now he is spreading his venom.

    Irresponsible! Blistering barnacles thundering typhoons.

    The classic chameleon like the babuas of Bihar..

  • 0
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    RW’s boss is not civilized so how can we expect him to act in a civilized manner with regard to the judiciary or anything else. This joker should not waste our time. I think the King gave him a parliamentary seat because he owes much to old Sam. Now junior must be a damn nuisance because he actually believes he is an MP of liberal UK rather than autocratic Sri Lanka. Hopefully the King wont take his seat away. We are at least provided by some good entertainment by this court jester.

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