By Basil Fernando –
Safeguarding judicial independence from attacks by the government came to light due to the threats alleged to have been made by Minister of Industries and commerce, Rishard Badurdeen and the attacks on the High Court and Magistrate’s Court of Mannar. That powerful politicians have been attempting to excerpt their influence over the judiciary is a widespread perception that has been seen for several decades now. Concern for the prevention of corruption in the judiciary is a topic that has found expression in many public debates.
Despite of the great public importance of this issue nothing significant has been done to inspire public confidence in the country’s political determination to safeguard the independence of the judiciary. In this regard India, where there was similar public concern, has taken initiatives to bring a law to penalise any form of judicial corruption and to ensure speedy and credible investigations into allegations of corruption. The Judicial Standards and Accountability Bill, 2012 is designed to address this public concern.
The judicial standards to be followed by judges are proposed by Chapter II of this bill.
15 JUDICIAL STANDARDS TO BE FOLLOWED BY JUDGES
3(1) Every Judge shall continue to practice universally accepted values of judicial life Judicial standards – as specified in the Schedule to this Act..
(2) In particular, and without prejudice to the generality of the foregoing provision, no Judge shall—
(a) contest the election to any office of a club, society or other association or hold such elective office except in a society or association connected with the law or any court;
(b) have close association or close social interaction with individual members of the Bar, particularly with those who practice in the same court in which he is a Judge;
(c) permit any member of his immediate family (including spouse, son, daughter, son-in-law or daughter-in-law or any other close relative), who is a member of the Bar, to appear before him or associated in any manner with a cause to be dealt with by him;
(d) permit any member of his family, who is a member of the Bar, to use the 30 residence in which the Judge actually resides or use other facilities provided to the
Judge, for professional work of such member;
(e) hear and decide a matter in which a member of his family, or his close relative or a friend is concerned;
(f) enter into public debate or express his views in public on political matters or on matters which are pending or are likely to arise for judicial determination by him:
Provided that nothing contained in this clause shall apply to,—
(i) the views expressed by a Judge in his individual capacity on issues of public interest (other than as a Judge) during discussion in private forum or academic forum so as not to affect his functioning as a Judge;
(ii) the views expressed by a Judge relating to administration of court or its efficient functioning;
(g) make unwarranted comments against conduct of any Constitutional or statutory authority or statutory bodies or statutory institutions or any chairperson or member or officer thereof, in general, or at the lime of hearing matters pending or likely to arise for judicial determinations.
(h) give interview, to the media in relation to any of his judgment delivered, or order made, or direction issued, by him, in any case adjudicated by him;
(i) accept gifts or hospitality except from his relatives;
(j) hear and decide a mailer in which a company or society or trust in which he holds or any member of his family holds shares or interest, unless he has disclosed his such holding or interest, and no objection to his hearing and deciding the mailer is raised;
(k) speculate in securities or indulge in insider trading in securities;
(l) engage, directly or indirectly, in trade or business, either by himself or in 5 association with any other person:
Provided that the publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business for the purpose of this clause;
(m) seek any financial benefit in the form of a perquisite or privilege attached to
his office unless it is clearly available or admissible; 10
(n) hold membership in any organisation that practices invidious discrimination on the basis of religion or race or caste or sex or place of birth;
(o) have bias in his judicial work or judgments on the basis of religion or race or caste or sex or place of birth.
Explanation. — For the purposes of this sub-section, “relative” means:-
(i)spouse of the Judge;
(ii) brother or sister of the Judge;
(iii) brother or sister of the spouse of the Judge;
(iv) brother or sister of either of the parents of the Judge;
(v) any lineal ascendant or descendant of the Judge;
(vi) any lineal ascendant or descendant of the spouse of the Judge;
(vii) spouse of the person referred to in clauses (ii) to (vi).
Chapter III of the Bill is entitled Declaration of Assets and Liabilities of Judges. Chapter IV is about making of complaints. The proposed law requires that there will be a ‘Complaints Scrutiny Panel’ in the Supreme Court and in every High Court to scrutinise complaints against the judges received under the proposed act.
The Scrutiny Panel in the Supreme Court will consist of a former chief justice of India and two judges of the Supreme Court to be nominated by the incumbent Chief Justice. The Scrutiny Panels in the High Courts will consist of a former chief justice of that High Court and two judges of the same court to be nominated by the incumbent Chief Justice of that High Court.
The Scrutiny Panel has to submit a report on the basis of the findings to the Oversight Committee within a maximum period of three months from the date of the receipt of the complaint from the Oversight Committee.
The proposed Bill prescribes the procedure for investigations into the complaints. The investigating committee conducting an investigation will have all the powers of a civil court while trying a suit under the Code of Civil Procedure. The investigating committee has the powers of summoning and enforcing the attendance of any person, requiring the discovery and production of any documents, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court office, issuing commissions for the examination of witnesses or other documents and any other matter which may be prescribed.
The proposed Bill also prescribes penalties on the conclusion of the inquiries. The investigating committee may recommend stoppage of assigning judicial work including cases assigned to the judge concerned during the period of the investigation. Further, if the Oversight Committee, on receipt of the report from the investigating committee is satisfied that there has been a prima facie commission of any offense under any law for the time being enforced by a judge, it may recommend to the central government for prosecution of the judge in accordance with the law for the time being in force.
The proposed Bill is comprehensive and deals with all the matters relevant for the conduct of such investigations and for the enforcement of the findings.
The judges and lawyers in Sri Lanka have a lot to benefit in terms of the protection of their good name and credibility and also in fighting against the pressures brought by the government in power or by politicians or any other powerful persons or groups by having a law of similar nature for the country. As the present government is quite unlikely to take the initiative for the promulgation of such a law the judges themselves and the Bar Association of Sri Lanka could take the initiative for bringing about such a law.
Above all the political opposition and the civil society organisations should translate their criticism about the breakdown of the law and the widespread lawlessness that prevails in the country into concrete proposals for reforms of the judicial system. Among such proposals the adoption of a law similar to the Indian Bill on judicial standards and accountability should receive serious consideration. The protection of the rule of law is an essential condition for the stability of the economy as well as the security of society. The business community itself should play a more proactive role in safeguarding the rule of law in Sri Lanka as the very survival of the private sector depends on the prevalence of the rule of law.
For the full document please see: The Judicial Standards and Accountability Bill, 2012